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Legally Speaking


Issue: August, 2007
Author: Oliver Fuchsberger

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IT Tips for eDiscovery Best Practices

Before we look at tips for dealing with electronic discovery it is important to understand the issues pertaining to electronic discovery and why the amendments to the FRCP were implemented in December of 2006. Electronically stored information (“ESI”) carries with it a slew of issues and complexities not found in the paper discovery world.

The first issue is the sheer volume of “ESI”. In the last 20 years information has gone from being stored in kilobytes and megabytes to being stored in terabytes and petabytes. Depending on the decisions made with respect to the scope of discovery, the volume of “ESI” to be collected and reviewed can easily reach gargantuan proportions.

Second, “ESI” is ever changing. Data is constantly being overwritten. The mere act of turning on a PC can overwrite electronic files. To keep file servers from bloating and thereby hampering optimum performance, unused files are overwritten in the ordinary course of business of a system’s operation. In the event that files need to be preserved, IT procedures will need to be changed and special consideration given to protecting data from being overwritten.

Third, electronic files are multi-dimensional in that they have multiple layers. Certain layers (information) may not be apparent when an electronic file is viewed or printed. Examples of hidden file layers include Excel formulas, track changes in Word, and metadata (data about the file including author, last edit date, date created, blind copies, etc.). Determinations must be made as to whether the hidden layers are relevant to the case, and/or whether they impact the privilege status of a file. More importantly, the electronic files must be handled in such a way as to preserve those layers, should they become discoverable later in the case.

Finally, “ESI” is not as readily viewable as paper. Each electronic file requires a separate program or application to make sense of the file. Each program or application may cost money and take time to learn. For older files, the program or application needed to review the file may no longer exist.

Each of these issues escalates costs. When significant volumes of “ESI” exist, converting electronic files to paper files becomes an extremely expensive proposition. Changing IT processes or removing personal computing devices from circulation to preserve electronic files can have dire financial impact on a company. Additionally, preserving every piece of electronic data increases the amount of data that must be processed and reviewed by attorneys, further escalating the cost of litigation. So as to keep from waiving privilege and to uncover potential relevant information, additional steps (and costs) may need to be taken to expose and review the hidden layers of electronic files. Finally, the opposition may not have the systems to review or convert many of the files that your client has generated, and as such, additional processes may be necessary to convert such files into a production format.

In the last several years, litigators have struggled to gain a foothold in this unfamiliar terrain. These struggles often culminate in costly discovery disputes as parties make best guess decisions on how to preserve, collect, and produce documents to the other side. Errors in properly preserving “ESI” result in disputes about the spoliation of evidence. Errors in properly collecting “ESI” or producing data in unacceptable or unusable formats result in files having to be re-produced.

In implementing the amendments to the FRCP, the Courts recognized the unique characteristics of electronic discovery and the resulting issues. The amendments set a framework for dealing with electronic discovery. Litigators now have guidelines for dealing with issues of “ESI” preservation, forms of production, and inadvertent production of privileged materials. Several of the amendments focus on parties addressing electronic discovery issues early in the case. Not only does the fragile nature of “ESI” require this, but it keeps litigation costs down by keeping one or more of the parties from heading down a costly, incorrect electronic discovery path. More importantly, the Courts recognized that electronic discovery was not a “one-size fits all” solution. The amendments on how to deal with electronic discovery are simply guidelines – a starting point in negotiations. The rules force the parties to negotiate an electronic discovery plan that works for all parties in the particular matter.

Unfortunately, in handling the electronic discovery for a case, there is no one set of instructions to follow. Each case has its own set of unique issues, unique client IT environment, and unique counsel. What follows are five general tips for dealing with electronic discovery.

1. Gain Knowledge of IT Client Systems in Advance of the “Meet and Confer”
At the Rule 26 “Meet and Confer” Conference, attorneys exchange information on their clients’ “ESI” and negotiate agreements as to scope of discovery, preservation requirements, production form, inadvertent production of privileged information, and other discovery issues. Unfortunately, the “meet and confer” creates scenarios where either a lawyer must make decisions without an understanding of their “ESI” consequences or an IT person must make decisions without an understanding of their legal consequences. Yet the agreements reached at the “Meet and Confer” could be among the most important made during the case. The best scenario is for litigators to educate themselves as much as possible on the client’s IT systems. Prior to the “Meet and Confer” the litigator should meet with client IT and records management staff and discuss the following: where information is stored; what archival systems are in place; what capabilities exist for collecting from those systems; what document retention/destruction policies exist and whether they’re enforced; and what impacts the current case preservation agreements have on the client’s IT system. A decision can also be made on whether a client IT representative accompany the attorney to the “Meet and Confer”. The knowledge gained during this session will be invaluable in negotiating a reasonable scope of discovery and negotiating realistic preservation requirements.

2. Gain Knowledge of Production Format Requirements
The lawyer should also be familiar with what production format requirements should be requested and what capabilities exist for meeting the opposition’s production format request. Factors influencing the form of production will be cost, the amount of “ESI” to be reviewed/collected, the scope of discovery and litigation support systems to be used to review and/or produce “ESI”, and the type of ESI to be produced. Having such knowledge will help the litigator negotiate a production agreement that ensures that the production is received in the most efficient and reviewable format, doesn’t exclude critical evidence, and that the opposition’s format is not unduly burdensome.

3. Consider Methods to Reduce Electronic Review Set
Collecting “ESI” can result in extraordinary volumes of duplicate and non-relevant files, especially if the scope of discovery includes backup tapes or archival systems. Formulating and applying a search strategy before or after the “ESI” is collected is one way to reduce processing and attorney review costs. If case issues change, applying a search strategy after collection helps avoid re-collecting data. “ESI” can be filtered by date range or custodian or searched by keywords. Additionally, electronic discovery software and vendors have the ability to de-duplicate the collection while processing. De-duplication programmatically determines duplicates and removes them from the review set.

4. Take Necessary Steps to Ensure Integrity of Collection
Take the necessary steps to ensure the integrity of the collection. This is particularly the case when the collection has the potential for permanently destroying or modifying the evidence. For example, if there is a question as to the data that exists or may have been deleted on a personal computing device, a protocol should be followed that includes securing the device so that it cannot be accessed until such time as it can be determined whether a forensic collection is necessary. If a forensic collection is necessary, retain a forensic collection expert. There is always the temptation to save time and money by having the collection done by in-house IT personnel. Not only are most IT personnel not trained in forensic collections, but such a collection is a potential conflict of interest. Additionally, the lawyer must consider whether the in-house IT collection will withstand the scrutiny of courtroom cross-examination. Collecting and copying e-mail and server files should also be done in a manner that does not overwrite metadata. While it is only occasionally the case that metadata be exchanged between the parties, it is almost always the case that metadata be preserved. Tools that preserve metadata such as Visa Versa and RoboCopy can be obtained for little or no expense. Finally, when collecting e-mails, do not print out or have the client forward e-mails to you. Rather have the client create a .pst/.nsf (mailbox database) file of his/her mailbox and then use technology to filter the set to the relevant, non-duplicative e-mails.

5. Preferred Production Format
The requesting party has the option of requesting the form of production. So as to avoid receiving production in an unworkable format, the requesting party should exercise this option.

Each form of production has its advantages and disadvantages. The size of the document production, the percentage of the production being derived from “ESI” and technology tools available for producing and reviewing the discovery are factors in selecting a production format. While paper is the obvious choice for reviewing paper files, it has disadvantages when reviewing electronic file populations of any consequence. Paper is not searchable. Also a paper format may hide key evidence (e.g. the Excel formulas used to generate the figures in a spreadsheet). On the other end of the spectrum is what is called a native file production – that is producing the files in the actual file formats in which they were created (MS Word, MS Excel, etc.). While some file types may only be produced in a native file format (e.g. Databases, Voice Mail), a native file production does have drawbacks. A native file production may be burdensome to review in that the reviewer must separately open each file in the application in which it was created. It is not possible to redact or number native files (making it difficult to refer to files at deposition or trial). Finally, native files can also be accidentally or intentionally modified. The most flexible format production format is an image (tif or pdf) format that includes the extractable (searchable) text, and if so agreed upon, the file metadata. The entire production can be loaded into a litigation support database via a load file. The litigation support database allows lawyers to review images for all electronic files, search the extracted text and metadata for key documents, and further issue code discovery files. In situations where no litigation database exists, and where the volume of electronic discovery is not overwhelming, lawyers may consider requesting a production format that consists of searchable .pdf files with divider pages that contain the key metadata fields. Adobe Acrobat can be utilized to serve as a quasi-electronic discovery search database.

For better or worse, electronic discovery is here to stay. While electronic discovery does add a layer of complexity to the discovery process, simply ignoring it can have dire negative consequences.

Oliver Fuchsberger is Director of Practice Support at the law firm of Holland & Hart LLP. Mr. Fuchsberger has been employed at Holland & Hart since 1985. He spent his first 8 years at the firm working as a litigation paralegal. From 1993 until 2002 he worked in the IT Department, training and supporting litigators in litigation support applications. Since 2003, Mr. Fuchsberger has been responsible for creating Holland & Hart's litigation support department and implementing litigation support software and workflows. He has given numerous presentations to Holland & Hart litigators and clients on electronic discovery issues.

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