This is the fourth article in a series that explores practical tools and strategies to proactively manage costs and effectively navigate through the eDiscovery process for litigation, internal investigations and regulatory matters. This series will provide practical tips on document management, data mapping, discovery planning, custodian interviews, document processing and hosting, eDiscovery technology and explore proposed arbitration rules and alternative dispute resolution. Follow these links to read Part 1, Part 2 and Part 3.
Our previous articles discussed document management systems and provided some tips that can be implemented prior to a dispute or investigation, such as the creation of a Data Map at the outset of an eDiscovery project. This article focuses on discovery planning and agreements with opposing parties on the scope and nature of the eDiscovery process and exchange of data. During this phase, the parties and respective counsel must work with their document management systems used and the data that is available from all relevant sources.
Discovery planning allows parties to discuss and obtain disclosure of information needed to identify any document issues early in the process. A discovery plan sets out the roadmap for the discovery process and requires meaningful collaboration and information sharing between the parties. Planning can help the parties identify issues arising due to complex types of data and forms of storage, including what data is no longer available or reasonably accessible. Failure to address issues of this sort early on can generate cost consequences.
To minimize eDiscovery costs, discovery planning should start as soon as litigation is reasonably anticipated, or immediately after litigation has commenced. 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 electronically stored information (ESI) to be disclosed, and any classes of ESI that will not be disclosed. This includes search criteria such as custodians, the relevant time frame, key data types, systems from which information will be retrieved, deduplication and search and review methodology, including the use of analytics or machine learning as part of the document review process. These decisions can all have a big impact on an organization’s eDiscovery costs.
Parties should also agree on the form of production and a document exchange protocol prior to processing or reviewing data. Documents should be exchanged in a meaningful and accessible format, including native production with metadata.
It is worth noting, however, that not all documents should be processed and put into a review platform. For example, in construction disputes, AutoCAD Drawings are typically relevant. The native versions of these documents are large and can only be reviewed in their native application. As a result, we advise parties that documents of this sort be exchanged separately, saving all parties the hosting fees associated with such documents.
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.
There is some concern in the legal profession that engaging in meaningful discovery planning and exchanging information on the proposed eDiscovery process will disclose litigation strategy. It is important to understand that the types of information exchanged during discovery planning are not privileged and courts have tied discovery planning to counsels’ professional obligations. 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 are found to be incomplete or deficient.
Custodian interviews, conducted to identify sources of potentially relevant ESI, is the subject of the next article in this series.
Candice Chan-Glasgow is director, review services 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.