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August 29, 2014

Bad e-Discovery Habit # 5: Failing to Kick the Tires

<< Read Part 4: Top 5 e-Discovery Bad Habits You Should Break

It would be inefficient if inside or outside counsel attempted to do all discovery tasks themselves. Yet, if something goes wrong, all counsel may be held accountable. As described in Bad Habit #4: Not Documenting the Whole Process, the standard for counsel’s own conduct and supervision of others is whether counsel made a reasonable inquiry into circumstances and reasonable efforts to comply with obligations. In other words, you must be able to show that you’ve kicked the tires.

Assessing the reasonability of all efforts made throughout discovery can challenging because different discovery team members must often rely on each other to do their respective tasks correctly.[1] Company employees provide information to inside and outside counsel about where relevant data resides. Inside counsel or IT employees may collect data using the company’s own harvesting tools and practices. Outside counsel often develop search terms based on their understanding of the case and client. Document reviews may involve dozens of attorneys, who can be managed by counsel or other service providers. Technology vendors may assist attorneys in orchestrating collections and designing review workflows.

How are you going to make a reasonable inquiry? Here are five important tire-kicking tips:

  1. In a word (or two): Q. C. Statistically valid sample sets are not just for predictive coding (where they are more often discussed because they are sometimes shared with opposing parties for that purpose). You should have Quality Check processes at every step of your review, including culling, search term development, and reviewer accuracy. Review platform tools like ONE can even let you automatically assemble sample sets and calculations.
  1. Confirm collections are complete: This means asking custodians to identify all potential sources of data. If they fail to mention something, you need to be able to say you made a reasonable inquiry. Counsel must also ensure that all data sources have been inventoried and properly collected, which often requires working with IT and data mapping.
  1. Confirm collection and processing tools are adequate for your needs and used correctly: Some collection and processing tools were not designed to copy all of the metadata you may need. Some search tools that apply keywords in place cannot read all types of documents and therefore will not copy them. Some tools are outdated and do not work for certain types of data systems. Even tools that are right for the job may only work if used by someone with experience. So, ask what harvesting tools are being used and what their capabilities are, as well as who is using them.
  1. Identify holes and whether they make sense. After documents have been collected, attorneys should inventory the data and look for holes. Have custodians mentioned a data source that appears to be missing? Are volumes as expected for each data source (e.g., is a month of email missing for one custodian)? Is the data collected consistent with the company’s document retention/deletion policies? If you detect that anything is not as it should be, you need to ask more questions.
  1. As discussed in Bad Habit # 4, carefully document everything.

[1] In 2008, six firm attorneys representing Qualcomm were sanctioned and investigated by the California state bar for failure to produce over 46,000 emails in Qualcomm v. Broadcom, No. 05cv1958-B (BLM) (S.D. Cal.). Two years later, the sanctions on the individual attorneys were reversed and the attorneys were cleared when they demonstrated that Qualcomm had hidden the documents despite the firm attorneys' reasonable inquiry. Qualcomm was ordered to pay $8.5 million in sanctions.

Other Articles in this Series:

Top 5 e-Discovery Bad Habits You Should Break, Part 1
Top 5 e-Discovery Bad Habits You Should Break, Part 2
Top 5 e-Discovery Bad Habits You Should Break, Part 3
Top 5 e-Discovery Bad Habits You Should Break, Part 4
Tara Emory, PMP
Tara Emory, PMP
Tara Emory advises organizations and law firms on e-Discovery and information governance programs. Tara counsels clients on data management and compliance, policies, records management technology, and defensible deletion. In litigation, she is an expert on search methodologies, data preservation and collection approaches, discovery protocols, and strategies for resolving discovery issues with litigation adversaries, government regulators, and the courts. Above all, Tara seeks to solve her clients’ unique data problems in ways that reflect a best fit for each client and matter.