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Top 5 e-Discovery Bad Habits You Should Break, Part I

This is part I of a series of five posts on eDiscovery bad habits.  Links to the other posts will be  included at the bottom of each when they are published.

Bad e-Discovery Habit #1: Waiting Until You Have a Discovery Request to Start Working on Discovery

Before you can begin a document collection, you need to build an understanding of the data sources.  This is done based on the nature of the case, rather than individual requests.  So why increase the pressures of compliance by procrastinating this step until you get the first set of requests?

Yet, parties often put little effort into discovery until they receive a formal discovery request.  As a result, they must stretch to comply within a demanding time-frame, consuming client dollars and internal resources.  Feeling the heat of impending deadlines, attorneys often lack the time to manage the contrasting goals of achieving a complete production of all responsive data and of avoiding costs from over-inclusiveness in collection and review.  Responsive data is often produced even if it involves very high costs, because the only alternative at that point is seen as noncompliance.

Procrastinating the initial diligence on a company’s data sources is a bad practice, for several reasons.

Courts require early efforts.  FRCP 26(a)(1) requires initial disclosures, which must be delivered within 14 days after the meet-and-confer.  These include all documents or descriptions of documents the party “may use to support its claims or defenses.” In addition, many courts now have model orders that detail what information that must be addressed between the parties at the outset of discovery, including items such as “the anticipated scope, cost and time required for disclosure or production of data beyond what is reasonable available to the parties in the ordinary course of business.”[1]

While initial disclosures need not involve painstakingly detailed disclosures about ESI, they are expected to identify relevant data systems with enough information to enable the opposing party to make informed discovery requests.[2] In cases where parties produce previously undisclosed documents after this cutoff, courts may exclude the evidence.[3]

The 14 day initial disclosure requirement is often modified through a scheduling order.  Trusting that this will occur, parties often opt to delay even initial discovery efforts. However, it’s best to be armed early with information about the available data, so you will know if you need additional time for discovery or if production of certain data sources would not be justified by the expense.  Without understanding initial data sets and their associated burdens, you might find yourself with an unrealistic Scheduling Order.

The early bird catches the worm.  Gathering information for discovery at the outset of a case is not just required, but has plenty of benefits.  First, you may be able to free up IT resources by identifying non-responsive sources of data that were placed under the litigation hold, but can have the hold lifted.  Second, as discussed above, if you can identify highly burdensome data, you may be able to avoid producing it by arguing that it is unavailable or that costs are disproportionate the value of the litigation.  Third, you can do a far more targeted collection when you finally receive requests because you can confidently exclude non-responsive or duplicative sources.  Narrowing collection and review alleviate the costs of document review, which make up the vast majority of all discovery costs.  Finally, being prepared allows you to demand the same of other parties, best enabling you to get the discovery that you need from them.

You've already started.  The good news is that you likely already started the process of identifying relevant data sources as part of preservation efforts.  One of the first steps after receiving a Complaint is issuing a legal hold, in which counsel explicitly identifies the scope of possibly discoverable information. Based on the Complaint, you've already determined, at least in a broad sense, what types of information will be subject to discovery. 

Begin at the beginning.  First, determining what data sources are likely to contain responsive data through discussions was all data stakeholders in the company.  This can include the potential custodians, IT, Records Management, the Legal Team, and others.  Be sure to identify data sources that may not be controlled by specific custodians, such as structured databases, records management systems, and cloud services.  High level data maps are often key to this exercise.  Then, for each data source, determine what types of responsive and non-responsive data they contain, and how the data can be collected.  If you identify any collection challenges, determine what the associated costs are.

Consult your local court rules to ensure you can address any specific requirements for early data disclosures.  Even if your court does not have a model order, you can benefit from consulting other courts’ orders as a guideline.  For example, check out the Northern District of California’s ESI Checklist for Use During the Rule 26(f) Meet and Confer Process and its Model Stipulated Order Re: the Discovery of Electronically Stored Information.

Other Articles in this Series:

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
Top 5 e-Discovery Bad Habits You Should Break, Part 5
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.