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By: Daphne Drescher, CP
Reprinted with permission from Proparalegal: www.proparalegal.com.
Welcome back to the paralegal playground. Today, Daphne stopped by to share what she calls “a little e-discovery checklist” with us. Whether you dominate e-discovery (dragons) in your corner of the legal world or haven’t the foggiest clue what in the heck e-discovery even is, here’s a short, simple list to keep you in the know for that next disco show. (Sorry, I couldn’t resist…) Lift that beverage sitting deskside in a unified, planning-to-survive salute, and keep reading!
Some of us may deal with e-discovery routinely, while others of us may rarely deal with electronically stored data in our cases. However, this is bound to change over time, as more and more of our clients maintain information in electronic format.
What would some typical steps be in the discovery process where electronically stored information (ESI) is involved? Here is a helpful little checklist!
1. What relevant info does your client have, and how is it stored? At the outset of the case, lawyers and their staff must become familiar with their client’s records, and how they are maintained, whether in paper or electronic formats. These days, even individuals and very small companies will have information on their computers, laptops, smart phones and thumb drives, as well as in their file cabinets.
2. Document retention policies. Lawyers and their staff must also ascertain what policies their client has in place for either preserving or destroying hard copy documents or ESI. If information is routinely destroyed, either by deletion, overwriting backup taps, shredding, or other means, lawyers must talk with their clients about the need to keep data once litigation is in the offing, because severe sanctions can result from failure to preserve records, including ESI.
3. Litigation hold notice. In the case of corporate clients, lawyers must work with their client to make sure written preservation hold notices are issued instructing employees and agents to preserve any potentially relevant documents and ESI in their custody, and not to alter or destroy potentially relevant material until the end of the lawsuit.
4. Confer with opposing counsel. Lawyers should meet and confer with opposing counsel early on in the case, in order to seek to cooperate on technical issues, to find out what discoverable data the parties have, and what steps they are taking to preserve it. They should also discuss production formats and what metadata might be relevant. They should also come to an agreement on confidentiality concerns and dealing with inadvertent disclosure of privileged information, perhaps by means of a Stipulated Protective Order.
5. Collection. Lawyers must work with their client to develop a plan for collecting any potentially relevant material, whether the data is in paper or electronic format. They will need to decide whether expert or IT assistance is needed to collect the information. Self-collection of ESI by employees risks accidental (or intentional) deletion of electronic data, risks the altering of relevant metadata, and has resulted in sanctions.
6. Determine production formats. The parties must decide on the preferred format to make and receive document productions. Electronically stored information is usually produced either in native format, or in flat file formats such as PDFs or TIFFs. Parties must also decide what metadata is relevant to the case, if any, and make a plan to preserve and produce it.
7. Other sources of discoverable information. Counsel will need to determine whether discoverable ESI is available from other sources, such as 3rd parties, and if so, how they will obtain it.
8. Costs. Lawyers will need to evaluate with their client the expected costs of e-discovery, and determine whether the cost outweighs the potential benefit, and whether the costs are proportionate as to the parties.
9. Processing and review. After all relevant paper and electronic information has been collected, data is usually processed into the format in which review and/or production will take place. Exact duplicates are removed, and the collection is culled for relevancy, privilege and confidentiality. In the case of large document collections, this culling can often be done via carefully crafted electronic searches and tagging within a database. However once that is done, it’s usually lawyers and paralegals who do a final review of the documents to determine what to produce and what to withhold.
10. Production. Documents and information determined to be relevant and non-privileged are prepared for production to opposing parties in the format determined in the meet and confer.
11. Privilege log. Documents and information withheld on the basis of privilege or other privacy concerns will need to be logged.
In preparing this article, I am indebted to the 2010 Handbook on Discovery Practice prepared the Trial Lawyers Section of the Florida Bar available here.
What do you think? Have you dipped your toes into the e-discovery waters yet? What particular e-discovery topics interest you?
Daphne is a virtual litigation paralegal and owner of California-based Drescher ProParalegal. She is also an instructor in the Paralegal Degree Program at Empire College. For more information, visit Daphne’s website http://proparalegal.com where you can subscribe to the free Drescher ProParalegal Newsletter full of litigation practice tips and resources for legal support staff.
©2011 Drescher ProParalegal. All rights reserved.
This officially concludes your “crash course” on e-discovery. Now go charge into that work week loud and proud, TPSers. Let’s see what you’ve got on this Major Monday. Go show ’em who’s organizing/saving/helping/fixing/trying-really-hard-not-to-kill the boss. (Looks like my self-sensor hasn’t quite clicked on yet. Happy trails, people).
We’ll see you at the end of the week with another fun post! Until then, guard those esquires.