June 5, 2014
As a complex commercial litigator and member of my firm’s E-Discovery Task Force, I am often asked about “e-discovery best practices” by colleagues and clients. This can be a difficult question to answer in light of the sophistication of the inquirer and/or the hot e-discovery topic du jour. But for your consideration, here are some tips that have come up in recent conversations:
1. Remember to identify and define electronic documents and data, and their sources, in your litigation hold letter.
I’m hopeful that in knowledge and practice, readers of this blog send written litigation hold letters to instruct their clients to preserve relevant documents and data when litigation is reasonably anticipated. My reminder focuses on identifying and defining the duty to preserve all documents and data from all potential sources. Documents and data should be broadly defined to include all sources of e-discovery, from the employee’s desktop to smart phone. Plus, if you suspect that the sole source of this information is on a back-up tape, then you should identify this storage device in your notice.
2. Consider whether you need to send litigation hold reminders to your adversary and third parties.
Litigation hold notices are not just “internal.” Evaluate whether you should send a litigation hold “reminder” to your adversary or any third parties that are in possession, custody, and control of electronically-stored information (“ESI”), particularly if you intend to request the discovery of ESI. Be specific as possible as to the ESI you identify, but do not box yourself in from requesting additional ESI as the discovery unfolds.
3. Don’t forget about social media.
Whether it’s your drafting your litigation hold notice, litigation hold “reminder,” or discovery requests, keep social media in mind, i.e., preserve it and ask for it, if possible. Many people nowadays treat social media like a daily journal. What they post on the public portion of Facebook is available for all to see, including you, so this is discoverable. Litigation in recent years focuses on the discoverability of private social media. The takeaway is that private social media may be discoverable if you can show a factual predicate or good faith basis to ask for it (e.g., a personal injury plaintiff posts pictures from his participation in a weight-lifting competition on the public portion of his Facebook page, yet seeks disability benefits because he claims he is too injured to work, so you have a good faith basis to seek private posts), and if your requests are narrowly tailored.
4. Check your Local Rules about e-discovery obligations.
It goes without saying that it’s incumbent upon practitioners to be familiar with their jurisdiction’s Local Rules of Court. But bear in mind that certain jurisdictions now impose certain e-discovery obligations on attorneys, ranging from the duties to investigate their clients’ IT systems in order to understand how information is stored and retrievable; to identify a person knowledgeable about computer systems and IT, who may assist counsel; to promptly notify your adversary about the intention to seek ESI; and to meet and confer about the preservation and production of ESI, including cost considerations. At least one jurisdiction has implemented a pilot program requiring litigants to jointly prepare and submit an Electronic Discovery Order requiring counsel to certify as to this knowledge.
5. Don’t be afraid of predictive coding — because it’s here to stay.
“Predictive coding,” “technology-assisted review,” and “computer-assisted review” all refer to the process whereby computers are used to identify responsive documents. Logically speaking, predictive coding is not appropriate for every case involving ESI, but more fitting for complex matters with voluminous ESI to be reviewed. Attorneys may be suspicious of computer-assisted review because they assume that computers cannot do the work of document reviewers, but courts disagree and have endorsed predictive coding “where appropriate.”
Of course, this list is not meant to be all-inclusive or in-depth, but aims to identify “rules of thumb” to assist today’s practitioner.