Common Mistakes in eDiscovery, and How to Avoid Them

Few things strike more fear in the heart of a young associate or even a rainmaker partner than the prospect of a large, complex, and potentially expensive eDiscovery matter. The fear of Electronic discovery is nothing new, and stems from a few very logical sources. The most obvious is that cases or investigations with a massive amount of electronically stored Information (ESI) are often high stakes and high profile and threat of sanctions may loom in the horizon. But the more often source of the ESI heartburn is the fact that nearly no attorneys go to law school in hopes of diving into relational databases, statistics, and the dreaded metadata!

With high profile eDiscovery mishaps, like accidentally producing a client’s entire cell phone to opposing counsel, splashed across the headlines it is of little surprise that some folks are shook! Fear not! There are some simple things that legal teams from law firms to in-house can do to avoid eDiscovery’s biggest mistakes! This post will demystify the process, highlight the most common mistakes, and offer practical guidance on how to sidestep them, or how to get back onto the eDiscovery bike if you hit a speed bump along the way!

eDiscovery Mistake #1: Playing Ostrich with eDiscovery

Many legal professionals found themselves on the path to law in some art because of an aversion to math and science, or simply more of a proclivity to excel in the liberal arts. That discomfort combined with the perfectionism that is rife in eDiscovery makes the fear of eDiscovery make more sense. No brilliant legal mind wants to get tripped up because they are diving into a process and an industry that is unfamiliar and somewhat uncomfortable.

The language of business today is DATA and as a result electronic documents, communication and collaboration tools are where evidence lives. To represent your clients ethically and zealously, eDiscovery is a fact of life. Taking the time to learn about the eDiscovery process and the appropriate workflows to ensure relevant information is preserved and analyzed is the first step. I also recommend finding your own data dork or ESI sherpa to navigate the emerging data types and challenges facing practitioners today - and I am happy to volunteer!

eDiscovery Mistake #2: Inadvertent Disclosure

With the ripped from the headlines case of Alex Jones full cellphone inadvertently being provided in full to opposing counsel, and all of the lascivious headlines that have followed, it is small wonder folks get nervous when dealing with eDiscovery. Thankfully for law departments and outside counsel alike, there are step that can be taken to avoid inadvertent disclosure and more importantly things you can do should the unthinkable happen.

To avoid the worst-case disclosure, the first step is to have a workflow that involves quality checking outgoing productions. As EDRM’s President Mary Mack Recently noted:
“Usually when you’re giving a production to the other side, you have a quality check on it, and there’s more than one pair of eyes on it,” she added. “Interesting things can happen like productions can be sent to the wrong address. You must have a quality check and then a check on the actual production itself. Then there’s the Holy Grail of quality check, which is that you make sure no privileged information goes out.”

Mistakes - even big ones happen in eDiscovery, it is just a fact of life. Thankfully there are steps you can take if this happens, and if am still scratching my head as to why counsel, in this case, opted not to. Clawback or in the case of Texas “Snap-back” provisions allow for counsel who does not intend to waive privilege to amend their production and assert privilege.

The rule says in part: “A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these Rules of Evidence if-within ten days or shorter time ordered by the court, after the producing party actually discovers that such production was made-the producing party amends the response, identifying the material or information produced and stating the privilege asserted.”

And finally, if all else fails you can object at the time the information was proffered during cross-examination.

eDiscovery Mistake #3: Preserving Too Little or Processing Too Much

While it is tempting at the outset of a case to collect super narrowly and exclude as many custodians as possible or to collect e everything under the sun including the kitchen sink and any relevant metadata about it, both approaches are a potential mistake. Under preservation in particular can lead to inadvertent (or intentional) spoliation of potentially relevant documents and that is a sure route to sanctions even when the destructions was not intentional. I always recommend casting the net wide when drafting discovery request or issuing legal hold notifications and determining which custodian’s data or data sources to preserve. The cost to collect down the road under a time crunch and the risk of the data being somehow lost is something that should be weighed in determining your proportional approach to an eDiscovery scoping exercise or workflow.

The opposite end of this Goldilocks dilemma is collecting everything including the kitchen sink and blindly throwing it through analytics and processing. This is a sure-fire way to break the bank and likely to be called into question down the road if a proportionality exercise is undertaking or cost shifting evaluated. I often recommend using EDA to determine and prioritize more potentially relevant data sources, culling the corpus of data and conducting processing and even data collection in a more phased approach knowing you can go back and expand the scope down the road and that the data is safely preserved. The largest expense in an eDiscovery review is the human document review, so effective applications of tools and analytics to cull the data set will save time and money without failing to preserve potentially relevant ESI.

eDiscovery Mistake #4: Forgetting About New Data Types

It is no surprise for anyone in the know about eDiscovery or who has read any of the dozens of posts and articles I have written on the subject, electronic information is big, messy, and growing at a crazy velocity. Legal Departments, Service provider and outside counsel alike need to ensure that their Early Data Assessment, matter scoping and even custodial interviews inquire about emerging data types like ephemeral messaging, short format messaging and collaboration tools.

Data sets from these emerging ESI Sources are often less formal and richer in potentially relevant material. Custodians are increasingly using communication channels that they do not anticipate being collected down the line, and as a result failing to collect them may lead to missing out on the proverbial smoking gun. Not every matter will depend on atypical ESI sources, but best practice should be to inquire about how each custodian and organization is using emerging data sources while doing business.

eDiscovery Mistake #5: Not Issuing a Litigation Hold

As noted above, the bench does not take kindly to spoliation, intentional or inadvertent. And the excuse of forgetting to issue a litigation hold and data being destroyed in the “normal course of business” will not fly. Emerging data sources as noted in mistake 3 above are also critical to issue holds for because retention windows may be short or nearly nonexistent. Simply put, no hold + spoliation is a recipe for sanctions. The simple fix for this mistake is to be in the practice of quickly issuing holds upon the reasonable anticipation of investigation and/or litigation and to be broad and thorough in the custodians and data sources and devices they cover.

See part 2 for more eDiscovery Mistakes and how to avoid them!