Our Insights on eDiscovery

Yesterday, we talked about resolving questions quickly and keeping team members informed about changes to procedures to minimize the chance for significant rework. However, even with the best staff, mistakes happen — especially on projects that require a team of people. There are two general types of errors you can expect.

Even with the best procedures and thorough training, people who are new to a task will likely have questions. Nuances in a document collection and unexpected situations will surface that don’t fit into your rules. It is very important that questions are resolved quickly. Most document work is repetitive. Many questions, therefore, will apply to more than one document. If a question is not resolved quickly, there is a good chance that many documents will be affected, and you may face significant rework.

There are different types of exception files that might be encountered in a typical ESI collection and it’s important to know how those files can be recovered. It’s also important to note that efforts to “fix” these files will often also change the files (and the metadata associated with them), so it’s important to establish with opposing counsel what measures to address the exceptions are acceptable. Some files may not be recoverable and you need to agree up front how far to go to attempt to recover them.

Virtually every collection of electronically stored information (ESI) has at least some files that cannot be effectively searched. Corrupt files, password protected files and other types of exception files are frequent components of your ESI collection and it can become very expensive to make these files searchable or reviewable. Being without an effective plan for addressing these files could lead to problems – even spoliation claims – in your case.

Training for a task should be thorough and aimed at teaching the team what they need to know to do the work correctly and efficiently. It should cover project overview information, procedures for doing the work, and sample work. Here’s a sample training agenda for a document review project that you can use as a guide.

As critical as procedures are, they aren’t enough. People need to be trained in applying those procedures. Training the staff will get your project off to a good start. Training is especially important for tasks that require a team of people to do the work – for example, a document review project. When a team is doing the work, train them together as a group if that’s possible. That way, different interpretations of the rules will likely surface and team members will benefit from the questions of others.

Software as a Service (SaaS) applications have also become increasingly popular in eDiscovery (especially for review and production of ESI) with several eDiscovery SaaS applications available that provide numerous benefits. However, most eDiscovery SaaS applications do not enable the user to upload their own data. Or, if they do, it can be costly.

Last week, on Wednesday and Thursday, we talked about assembling an electronic discovery team. That’s not the only team you might need. You may need to assemble a team for a specific task — for example, for a document review. It’s essential that you assign the right type of people to a task. For many litigation projects, this means deciding whether attorneys or non-attorneys will do the work.