This is the last article in a series that examines tools and strategies to proactively manage costs and effectively navigate through the eDiscovery process for litigation, internal investigations and regulatory matters. The series has provided practical tips on document management, data mapping, discovery planning, custodian interviews, document processing and hosting, eDiscovery technology and explored proposed arbitration rules and alternative dispute resolution.
Our series of articles about the eDiscovery process has offered practical guidance for minimizing risk and cost. In this, the last article in the series, we highlight a few of the key tips for construction companies involved in disputes or regulatory matters that require the production of electronically stored information (ESI).
The most effective way to minimize eDiscovery cost and risk is to start with good document management and retention policies. While document management and retention are substantive and complex areas, there are a couple things that do not require software or expenditure and that can make a substantial difference. Consistency in file naming and storing are key factors to identify relevant electronic information more easily. Another simple tip is to identify drafts or final documents within the file name. These tips alone, if followed consistently, can substantially decrease the time and costs associated with eDiscovery and do not require specialized software.
Poor email management can add substantially to eDiscovery costs. Developing a practice of foldering email, both incoming and outgoing, will reduce risk and costs. Moreover, email threading and associated technology can be used to effectively reduce the cost of disclosing email.
If document management systems are utilized, critical features to look for are the ability to export workable native data without altering metadata, and the ability to maintain links between the documents such as attachments. Document management systems that can only export to PDF or convert standard formats to a proprietary format can exponentially increase the eDiscovery costs for any size matter.
Maintaining an updated report or “map” of data sources, including third party hosted data, will assist in responding to the need to preserve electronic information. Data mapping in conjunction with custodian interviews will allow an enterprise to defensibly identify, preserve and collect the least amount of data while still complying with obligations to produce relevant information. A well thought out preservation and collection strategy will minimize costs throughout the eDiscovery process.
A comprehensive Data Map will also assist in developing a discovery plan with opposing parties by providing an understanding of what is reasonably available and, as importantly, understanding what is not reasonably available. This includes the ability to obtain information and records out of proprietary document management systems and other databases. Combined with custodian interviews, this information will allow the parties to begin to assess the time and costs associated with preservation and collection of sources of potentially relevant ESI.
Regardless as to whether the court jurisdiction or forum requires mandatory Discovery Plans, discovery planning is a critical component of an eDiscovery strategy and will minimize costs. Once this discovery roadmap is in place, parties will be in a better position to execute the plan in a cost-efficient manner.
Planning should occur prior to document collection. This is to ensure the scope of the collection is known and agreed to by both parties and to avoid a costly “do-over.”
During discovery planning, parties should come to an agreement on the scope of disclosure, how each party will locate and identify ESI to be disclosed, and any classes of ESI that will not be disclosed. Engaging in discovery planning also helps to ensure defensibility of the process and to avoid disputes arising after the parties have already spent considerable time and expense on document productions that may then be found to be incomplete or deficient.
While proactive management of ESI is one of the best ways to minimize costs and risks associated with eDiscovery, the choice of process and technology to use in the course of a dispute will have a direct impact on the costs and risk.
Over the last few years, the options available to enterprises to manage eDiscovery needs have changed considerably. The choices of available technology have increased, the functionality available has improved (and continues to improve) and the options for purchasing the technology have also changed.
To recap: Discovery is typically the most time-consuming and expensive aspect of any legal dispute. By adopting appropriate technology and best practices, parties can realistically achieve significant cost savings throughout the process.
Crystal O’Donnell is CEO and senior counsel at Heuristica Discovery Counsel LLP. Heuristica has offices in Toronto and Calgary and is the sole national law firm whose practice is limited to eDiscovery and electronic evidence.