Organizing an effective response to electronic discovery has three essential components: (1) an experienced team leader — one with solid judgment on discovery issues, good management skills and an understanding of the special challenges of electronic discovery; (2) a multi-disciplined team that includes not only outside counsel and paralegals, but also one or more representatives of the client’s legal and information technology (IT) departments, a document services vendor and possibly other specialized resources; and (3) a carefully-constructed plan of action. This article offers ideas on how to assemble the right team and how to develop for that team a comprehensive and well-organized project plan.
Assembling the right team
Team leader — It is hard to overstate the importance of selecting the right person to manage such a project. To be effective, the team leader will need to have the experience and judgment to make sound decisions about a variety of discovery issues — from evaluating the proper scope of document preservation and collection to creating procedures for protecting against the inadvertent production of privileged documents. Because large electronic discovery projects are labor intensive, the leader also needs to have good personnel management skills. Moreover, it is important for the leader to understand enough about the various sources of electronic records (e.g., networks, PDAs and backup tapes) to help design common sense solutions to the challenges presented by each one.
Outside counsel resources — The size of the team needed to preserve, collect, review and produce documents is driven by the scope of the litigation and the discovery requests at issue. Regardless of the size of the litigation, however, outside counsel and their staff will often make up most of the team needed to complete the tasks on the project plan. These tasks include, among others: interviewing witnesses to identify the location of documents responsive to discovery; reviewing documents to determine if they are responsive, privileged or entitled to be designated as “confidential” under any applicable confidentiality order(s); identifying and organizing key documents; and supervising the document vendor selected to help manage the documents to be produced in the litigation.
In-house counsel — The team should include a representative from the client’s legal department or at least a designated contact person in the legal department. In-house counsel are often indispensable to the document preservation and collection process. For example, they typically assist with: identifying and interviewing key witnesses; opening lines of communication between outside counsel and members of the client’s IT department; helping define the proper scope of document preservation and collection; communicating with employees about the duty to preserve documents; and helping identify privileged documents.
Information technology personnel — An electronic discovery team will almost always need help from one or more representatives of the client’s IT department. They have unique knowledge of the client’s computer networks and storage systems and are critical to any successful document preservation and collection effort. When appropriate, they can suspend rotation of backup tapes and preserve or copy information on networks that might otherwise be systematically archived, moved or, in some cases, even erased. They can also help locate information responsive to discovery and, when necessary, they can restore to human readable form data that has been archived or compressed. If the client has multiple facilities with computer systems that contain responsive information, it may be appropriate to have a contact person in each of these facilities to help ensure the completeness of the preservation and collection effort.
Document services vendor — The team will be very dependent on the competency of the document services vendor selected to help manage the document production effort. The vendor will need the experience and capacity to handle the size and complexity of the particular project. The vendor often assists with, among other things, document imaging, objective coding, Bates stamping, copying and litigation database management.
Specialized resources — An electronic discovery team may occasionally need the assistance of consultants specializing in restoring access to data that may be on disaster recovery storage devices or old software systems that may require special equipment or techniques to search.
Developing a project plan
While an electronic discovery project cannot succeed without a well-managed and qualified project team, no team (regardless of its competency) is likely to avoid mistakes and setbacks that can result from an incomplete or deeply flawed project plan. Therefore, it is very important to create at the outset a comprehensive and thoughtful plan of action and workflow for the team.
The facts and circumstances of the litigation, the size of the client, the scope of discovery and a wide variety of other factors will dictate the content and complexity of the project plan. Below, however, are some steps to consider including in a typical electronic discovery plan and ideas on how to organize the workflow to help the project run efficiently and economically. These steps can be broken generally into three categories: data preservation, data collection and data review and production.
Steps to preserving electronic data
The electronic discovery team should act quickly to evaluate the proper scope of preservation. In doing so, the team should think more broadly than what is likely to be deemed relevant in the litigation. They should think in terms of what may lead to the discovery of admissible evidence. When in doubt, the team should preserve the information. Fact witnesses and IT department employees will be essential in helping to identify sources of information that need to be preserved. In assessing what preservation efforts are appropriate in a particular case, consider the following examples of steps that may be taken:
Preservation memorandum — While there are a variety of effective means of initiating data preservation, a common tool is the distribution of a memorandum explaining the need to preserve potentially relevant information. This preservation memorandum may need to be recirculated periodically to remind current employees, and to inform new employees, of the need to preserve potentially relevant data. This memorandum should be in clear and understandable terms and, where appropriate, give examples to avoid confusion. To the extent potentially responsive information resides with international affiliates, extra effort may be required to make certain the meaning and significance of the preservation requirement is fully understood by employees in international offices.
Key employee interviews — Employees with direct knowledge of the matters at issue in the lawsuit are important sources of information about the location of data that needs to be preserved and produced. They can also identify other employees with knowledge helpful to any preservation effort. Therefore, interviewing key employees should be a high priority.
Consulting organization charts — Current and historical organization charts can also be helpful in identifying witnesses who know about the location of documents that should be preserved. These charts can be particularly helpful in large organizations or in situations in which the events at issue span a number of years or decades.
Using a checklist to identify sources of data — The team should develop a checklist to use in interviewing employees about the sources of electronic data. For example, the team should explore whether data that needs to be preserved is located on an employee’s desktop, laptop, PDA, home computer, other forms of portable media, on the network file servers, on backup tapes or is in the possession of a third party.
Network drives and backup tapes — The team should work with the client’s IT department to address preservation of data on active servers and backup tapes. A number of companies implement tape rotation policies in an effort to manage data storage costs and reduce the volume of data in storage. Therefore, it may be necessary to suspend rotation of some backup tapes. The IT department may also need to copy or otherwise preserve information on networks that might otherwise be inadvertently moved, erased or archived into less accessible media.
Departing employees — The team should consider taking special precautions in preserving information in the possession of departing employees. This is particularly true if data would be lost in the routine reassignment of electronic devices serving departing employees.
Network level preservation — While the distribution of preservation memoranda to individual employees is one tool to preserve information stored on employee specific local hard drives or other media storage devices, the client’s IT department also may be able to preserve data at a network level. For example, e-mail server default storage settings may need to be adjusted to avoid the potential loss of information due to server storage capacity limits. Preservation of information on a large scale, however, may affect the performance of network servers. Therefore, counsel should work closely with knowledgeable IT staff to evaluate the impact of preservation efforts on the organization and, whenever possible, develop practical solutions that protect the information at issue while avoiding unnecessary expense and disruption to the organization.
Managing costs of data preservation — The expense of preserving large amounts of electronic data indefinitely may represent a significant hardship to the client. Therefore, while the duty to preserve relevant data may first require the preservation of backup tapes in certain areas on a short term basis, counsel also should help develop a long-term strategy for preserving data while managing costs. For example, counsel might consider the possibility of seeking an agreement from opposing counsel that a particular tape rotation protocol is sufficient to meet the needs of any preservation order or, if such an agreement cannot be reached, take the matter up with the court.
Steps to collecting electronic information
Collector checklists — One technique to promote efficient and comprehensive data collection from individual employees is to work from a checklist of examples of potential sources of information the collecting team should consider. The checklist should be comprehensive but not exclusive, and it should take into consideration, among other things, facts and issues alleged in the case, discovery sought and information learned in witness interviews. Such a checklist might include, by way of example: PCs; specific company networks and databases, backup tapes, home computers, PDAs and other personal computer devices.
If the team relies on employees to help collect information, it should provide employees specific instructions on how to search for and retrieve data. For example, with e-mail the collector may be instructed on how to save responsive e-mail messages to a particular location or forward them to a designated e-mail address for collection.
Detailed instructions are useful to standardize search efforts between various collecting attorneys and across various client facilities. For example, procedures for e-mail collection may include instructions on how to create a network case folder on the client’s server or in the user’s inbox. Further instructions on how to run a full text and advanced search in the user’s mailbox that focuses on the inbox, sent items and deleted items folders may also be appropriate.
Data organization — As data are collected, a procedure may need to be established to preserve data as they are maintained in the ordinary course of business. If data are kept in digital form, this may require the maintenance of the file structure from which the data are copied. If data are printed out, slip sheets may need to be placed between documents so the beginning and end of each document can be readily identified.
Quality control — As with other stages in the document preservation and collection process, a mechanism to audit the data collection may prove to be an invaluable tool for avoiding errors. Proactive quality assurance efforts during document collection will minimize mistakes, such as inadvertently excluding a responsive document or inadvertently including a privileged document in the material to be produced.
Setting up a dedicated work area — Medium to large scale data collection projects may require the establishment of a desktop work area for collecting attorneys within the client’s facility. Any such desktop work area should be located in a secure location that does not disrupt the business of the client. At a minimum, the work area should include computers linked to the company’s network and also have Internet access. This work area will allow collecting attorneys to review information from network sources and copy and sort potentially responsive information without disrupting other users within the company.
Backup tapes — Backup storage tapes can sometimes be very burdensome to restore to searchable, human readable form. In such cases, the team should consider whether an argument exists that the burden of searching the tapes outweighs the anticipated benefits, particularly in cases where most, if not all, of the information on the tape is available in non-compressed form.
Steps to reviewing and producing electronic documents
Data form — After information has been collected, it must be evaluated for responsiveness and potential privilege issues. The team also has to decide upon what form the production should take. In some cases the parties may agree to a particular document production protocol, or a case management order may dictate a particular format for the production. For example, data collected from an individual’s computer may be produced as a digital “picture” of the document in the form of a PDF or TIFF file or in its native application (i.e. MicroSoft Word®, WordPerfect®, MicroSoft Excel®, etc.) The team should carefully evaluate the pros and cons of each data form option.
Objective coding — In addition to reviewing collected data for responsiveness and privilege, counsel may elect to objectively code documents to create a searchable database. Objective coding may list for each document the individuals receiving the document, the author, the date, or other objective information. There are a number of vendors who can assist with objective coding. These services vary significantly in costs based on the qualifications of the individuals coding the documents.
Subjective coding — Another component of data review and production involves the subjective coding of collected documents. For example, counsel can code documents based on key issues selected to assist them with investigating and presenting issues in the case. One manual method for subjectively coding data involves the use of a hard copy attorney review sheet that offers the reviewing attorney check boxes keyed to particular issues. Once attorney review sheets are completed for a particular document, the sheets may then be manually loaded or optically scanned into a database.
Automated document review methods — An automated method for subjective coding of data includes the use of bar codes and optical scan light pens. Under such a system, each document Bates number corresponds to a particular bar code. The reviewing attorney initiates a review of the document by scanning the bar code for the document with a light pen, which calls up a database entry page on a desktop computer for a particular document. As the attorney reviews the document, rather than check boxes, the reviewing attorney scans bar codes for each coding category the attorney deems appropriate for the particular data. The advantage to a such system is that subjective coding information is loaded into the database immediately as the attorney reviews the document and scans the appropriate codes. After the reviewing attorney completes the review of the document, subjective coding information for that document can be searched by other users working on the case.
Managing production information — Various database management software systems are available to manage subjective and objective coding data in addition to digital images of the production set. Popular software for this purpose includes Concordance®, Summation®, IPRO®, CaseMap™, TimeMap™ and MicroSoft Access®. Database management vendors may also offer secure online hosting of database information. While online database hosting provides the advantage of remote access via the Internet, the team should carefully consider all security issues involved before adopting a remote access strategy.
A highly qualified leader, a team with the right skill sets and a comprehensive, well-organized project plan and workflow are keys to a successful electronic discovery project. Throughout every phase of the project, the team should seek creative, common sense solutions to every challenge. The team should also constantly refine its processes and procedures to promote the delivery of a thorough production with minimal disruption to the client’s business.
This is part two of a two-part series on electronic discovery. Part one, “Electronic discovery — developing solutions to new and complex challenges,” ran in the May 2004 issue of South Carolina Lawyer. It is reprinted with permission from the South Carolina Bar. J. Mark Jones is a partner and John D. Martin is an associate with Nelson Mullins Riley & Scarborough, LLP in Columbia. They practice in the area of complex litigation with an emphasis on pharmaceutical, technology and trade secrets litigation.