The new amendments to the Federal Rules of Civil Procedure went into effect on December 1, 2006, forever altering the e-discovery landscape. More than ever, it is important for attorneys to understand the lifecycle of "electronically stored information" (ESI) - from its creation and storage, to its production to opposing parties. Lawyers must also consider very early on in any case how to locate and utilize the most valuable ESI from the massive amounts of data they receive from their clients and opposing parties.
As part of a series on the world of e-discovery after the amendments to the Federal Rules, FindLaw's Legal Technology Center will examine the most common areas of e-discovery and explore how the new rules affect them. This overview will introduce some of the key concepts in the e-discovery process, and help to give a sense of what areas you should focus on as you navigate the sometimes stormy seas of e-discovery.
The concept of an e-discovery workflow is an overarching umbrella concept that will help guide the e-discovery practitioner through the various stages of the process. The most widely accepted outline of the e-discovery workflow comes to us from The Electronic Discovery Reference Model Project, a team of 62 service providers, software providers, corporations, law firms and professional organizations who came together to create standards for the practice of e-discovery.
The EDRM workflow creates a flexible conceptual framework for e-discovery endeavours. It begins on the left with an immense amount of ESI (represented by the yellow "Volume" portion of the graphic) with only a small percentage of relevant data (represented by the orange "Relevance" portion.) The end result of following the workflow is a small amount of overall data, with a large percentage of relevant, useful information ready for production, settlement conferences and/or trial.
Each step of the workflow represents a discrete task with a set of specific goals. The overall goal is to progress from left to right along the workflow, but it might become necessary to revisit stages along the way. For example, while conducting an analysis of the identified and collected data, new issues may arise that will require more ESI. Participants in the process should return to the identification stage to locate appropriate ESI, which will in turn require new collection, preservation and analysis.
The e-discovery workflow really begins with the document retention policies of the client. A solid, well-established document retention policy can help improve business and prepare for any possible litigation. Conversely, the lack of a formal policy can result in added expenditures for clients and litigators as they search through unorganized data for the right documents. Moreover, a flimsy retention policy could even lead to liability under Sarbanes-Oxley or other regulatory laws. Attorneys should advise their clients to establish document retention policies with a focus on ESI as soon as possible, and monitor and update them regularly.
Once a triggering event occurs that puts a client in a reasonable anticipation of litigation, it becomes vitally important to identify the location of all relevant information. During this stage, attorneys and clients will need to list the custodians of the data, determine the time frames involved, identify the types of documents, map the client's information systems and decide whether or not forensic data retrieval is necessary.
During this crucial stage, attorneys must first ascertain when exactly the duty to preserve arises. Then, attorneys must begin the process of saving and collecting all relevant data in all relevant formats in all relevant locations. This quickly amounts to a mammoth store of information from points around the globe. The new Federal Rules stress reasonableness in this area, and mandate a meet and confer between opposing counsel to establish preservation approaches and definitions for what may be considered relevant material. This can help corral e-discovery costs and ensure a more efficient pretrial process.
During collection, the owners of the ESI should gather it in a manner that is "comprehensive, maintains its content integrity and preserves its form." (EDRM.net, http://www.edrm.net/wiki/index.php/Collection_Node.) Collection of metadata may also be required, and some authentication and chain-of-custody measures should be put in place. Normally, it is assumed that documents will be collected in their native formats (eg, an Excel spreadsheet rather than a PDF reproduction.)
This is the stage where the raw data is converted into a format that conforms to the law firm's requirements. The ESI is then reviewed and marked for relevance. Irrelevant or useless data is culled, and the relevant data moves on to be analyzed according to the legal theories and needs of the case. Document review is essential, time-consuming and expensive, but vendors are constantly improving storage, sorting and search capabilities to streamline the process and cut down on the amount of time and money spent on document review. Once the data is reviewed, attorneys can then begin to formulate strategy and apply evidence to the legal issues before them.
This is a stage fraught with peril: undetected metadata can sink a case, and privileged information can be given to the opposing party inadvertently. Fortunately, litigants have a chance to make sure the playing field is level. Rule 26(f) expects parties to establish methods and formats for production of ESI early on in litigation, and Rule 26(b)(5)(B) contains responses to the mistaken release of privileged information.
Finally, it all comes together at trial or in settlement negotiations. Making good use of all that information can be tricky, especially when arguing in front of a jury. Keeping the material simple and easy to follow is essential to making a successful case, as is ensuring that presentation technology operates as it should. Everything from the readability of graphs to the number of power outlets in the courtroom should be considered at this stage.
In addition to understanding the concepts that form an effective e-discovery workflow, attorneys and firms should also consider the impact that project management principles can have on the e-discovery process. By applying project management processes to the e-discovery workflow, firms can establish key efficiencies, cut costs, and effectively monitor the successes and failures of the e-discovery workflow in each case.
One of the key advantages to establishing a project management system to oversee the e-discovery process is the creation of institutional knowledge. With a project management sector firmly established, the loss of one or more e-discovery experts in the firm will only minimally impact the firm's e-discovery capabilities. Project management specialists within the firm can then transmit knowledge of the e-discovery process to new or inexperienced attorneys in order to increase the wealth of knowledge at the firm.
In the end, of course, it's all about money. Keeping track of the e-discovery process and learning which of your particular methods work and which fall short can help improve things for the next go 'round. In order to monitor the workflow, firms should establish a system of metrics that gives easily understood summaries of how the e-discovery process works - and how much it's costing!
For more information on the e-discovery process, and to browse products and services that can help make the e-discovery workflow work for you, check out FindLaw's E-Discovery Page. Also, check back periodically for more in our series on new developments in e-discovery.