Top 5 e-Discovery Bad Habits You Should Break, Part III
June 27, 2014
The Newest Predictive Coding Case Teaches Us Little About Predictive Coding and Everything About Stipulated ESI Protocols
July 28, 2014

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

This is part IV 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.

<< Read Part 3: Top 5 e-Discovery Bad Habits You Should Break

Bad e-Discovery Habit # 4: Not Documenting the Whole Process

Do you have a great memory? Unless you can remember what you had for breakfast every day for the last six months, you need to document each and every decision and action as you move along your discovery journey towards compliance. When something goes wrong in discovery, attorneys who do not carefully document their process frequently rely on emails and notes jotted into a legal pad to piece together the story of who did what and why.

If your discovery compliance is ever challenged, the opposing party may argue –with the benefit of 20/20 hindsight – that you and/or your client should be sanctioned for a bad result. Fortunately, the standard for determining whether sanctions apply is not focused on the result –although the result may factor into the severity of sanctions if there are any. The standard is whether the attorneys made a reasonable inquiry.[1] As you know, “reasonableness” depends on the circumstances of a situation. This means that if discovery efforts are challenged, an attorney must argue that he made a reasonable inquiry in context of the situation. So, the focus will be on the exact facts surrounding the situation, and what the attorney did. Each day of discovery, where multiple decisions may be made and available information may change, so it would be difficult to recall the exact situation that created the basis for each decision.

Therefore, if every step is correctly documented, you have the best chance of showing your actions were reasonable, given the case needs and information known at the time. Even better, you will have the credibility of a contemporaneous record from the time the issue arose. Without such a record, attorneys may find it difficult to prove that their efforts were reasonable if it turns that there is a bad result.

[1] ABA Model Rule of Professional Conduct 3.4 provides that an attorney shall not "fail to make a reasonable diligent effort to comply with a legally proper discovery request by an opposing party"). Federal Rule of Civil Procedure 26(g) requires an attorney to sign discovery responses and the commentary explains that the Rule does not require the signing attorney to certify the truthfulness of the client's factual responses to a discovery request. Rather the signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand.

In addition, Federal Rule of Evidence 502 provides some protection for privileged information that was inadvertently produced if the lawyer “took reasonable steps to prevent disclosure” and attempted to timely retrieve the information.

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 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.