Words from the Digital WarRoom

E-Discovery Mistakes to Avoid

Posted by Barry O'Melia on Fri, May 20, 2011

"I always feel like...somebody's watching me...." part 2 

I hope you have managed to avoid incurring new sanctions in the time since my last post. We talked about avoiding painful mistakes, and I promised a quick tour of the ‘EDRM hall of fame’.  So here are the questions thee-discovery opposing counsel is watching opposing side may ask, and the common e-discovery errors to avoid: 

Identification – Are there sources of potentially responsive information that you may not have identified?   Consider the following, and gather information about the existence of these stores

  • SharePoint or other collaboration tools, commonly used cross-functionally in corporations to jointly create, modify and store documents
  • Lockbox, Amazon, or similar cloud based storage
  • Corporate wiki applications
  • IPods, iPADs, tablets, Androids, voice messaging

Preservation notices - preservation used to be the area where all the “bodies were buried”, so to speak.  Be certain that:

  • Custodians to the sources above get a notice
  • Reminders and suspend document retention policy.

 Processing – In my experience, attorneys could spend the whole deposition on this topic. This has historically been a great way to trip up your adversary, because often there are several parties\vendors\tools involved in a complex laborious process.  Any time you move data between applications, databases, or to/from media devices, a risk of corruption or data loss is present.

Some examples of thorny data processing challenges your opponent will love to see you fail at:

  • Ancillary Mail box types-you have a corporate pst (mailbox) but what did you do with the Outlook express mail, the personnel Yahoo mailbox?
  • Backups of handheld devices (Blackberry, iPHONE)
  • Mail from the ‘cloud’ (webmail or hotmail accounts)
  • Image files if you rely on key word searches (pdf)
  • File types that may not have been processed or indexed:  databases, log files etc.  There are very good reasons supporting a decision not to produce unstructured data; the key is to document the decision.

Review - Did you use a reliable tool and process for identifying likely responsive documents? Were a review protocol and case issues well understood by reviewers? Did your process include a quality control check or 2nd tier review to confirm comprehension and accuracy?  In the review tool itself:

  • Are search methods robust? 
  • Do you have access to all the text to run your keywords?
  • Did you search “hidden info” properties, email headers, comments inside of documents?
  • Are you using concept analysis? If so, can you explain what you are doing?
  • Did you follow Sedona Guidelines for accuracy  and using sampling for precision and recall? 

 Production - Do your produced documents have an appearance very close to their content and format in the normal course of business?

  • Are there hidden columns, annotations, embedded content, and was this visible in the normal course of business?
  • Did you convert everything to PDF or similar? In doing so, how has the document content changed?

Are you feeling those eyeballs yet?

If the opposing side suspects negligence on your part, you may find yourself in a meet and confer, or worse, a judicial proceeding related to an e-discovery dispute.   Some studies estimated that e-discovery sanctions increased by 90% in 2009 over 2008.

How to avoid getting trapped by accusations of e-discovery negligence?  Research and document with your client, all potential sources of relevant data.  Avoid taking an adversarial stance, and instead participate cooperatively in early discussions to form a mutually acceptable ESI agreement.

I left my gracious audience at the LegalTech OLP breakfast with the following thoughts:  To avoid the pitfalls the other side may be hoping you will make:

When you identify data: remember you or clients have a lot of data that is not readily accessible (backup tapes, retired hard drives). You don’t always have to process and preserve, just know about it and negotiate at a 26 (f) conference

Know your client’s document retention policy! Nothing has the stink of sanction more than your ignorance of your client’s document retention policy – or lack thereof.

Know when the retention notices went out and document when they were  refreshed (ideally every 6 months or more frequently)

Understand where problems occur 

  • Make sure you and vendor/team have defensible agreement on your processing\posting rules before you have them start processing your data.
  • Handing off data; retain a tight chain of custody
  • Dealing with files that cause exception to your processing.  What file types did you decide NOT to process, and why? If, for example, you chose a tool that does not handle Lotus Notes email, a response that “we just skipped them” is NOT a good answer.
  • Relying solely on Key word and Concept searching and having no answer\protocol for dealing with files that you did not index is not a defensible decision.  Adopt a best practices approach and document it.

Tags: EDRM, mistakes, sanctions, e-discovery