10 Don’ts of eDiscovery

Electronic discovery is about technology, it’s about workflows, it’s about costs and it’s certainly about the professionals who do the work. But it’s important to remember that, at its core, eDiscovery is a serious component of the litigation process, fraught with all of the compliance responsibilities and risks that entails.

To help litigation professionals gain a tighter grip on the most important things in the universe of eDiscovery, LexisNexis hosted a recent webinar to highlight 10 Don’ts of eDiscovery.

“There are obviously a number of things that litigators and their staff members need to navigate in eDiscovery, but these are 10 things that you really shouldn’t do,” said Michael W. Mallory, an eDiscovery technology consultant. “If you avoid these common errors, you’ll be on your way to effectively managing risks throughout the eDiscovery process.”

Mallory identified the following 10 “don’ts”:

1. Don’t Ignore eDiscovery
   The challenge of dealing with huge volumes of documents in eDiscovery is obvious, but so is the importance placed on the professional treatment of eDiscovery by the courts. American judges are no longer tolerant of litigants who are behind the learning curve when it comes to eDiscovery and the risk of sanctions is real.

2. Don’t Go It Alone
   There is no need to feel like a lone wolf when it comes to carrying out eDiscovery responsibilities. The in-house legal team should work closely with its outside law firms, many of whom now have dedicated eDiscovery practices of their own, and with appropriate outside service providers who can assist with delivering the software tools and specialty counsel necessary.

3. Don’t Neglect Litigation Hold
   Courts have found “gross negligence” and imposed sanctions on litigants for failing to issue written litigation holds (e.g., Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC). Make sure you conduct pro-active compliance by identifying key personnel impacted by the hold, instruct them to preserve in writing, review document retention policies on occasion and document all actions.

4. Don’t Rely on Clients or Vendors
   Lawyers in private practice take note: three in 10 organizations don’t have a formal legal hold program and barely one in 10 are confident they could demonstrate, if challenged, that their management of electronic information is accurate, accessible, complete and trustworthy, according to an ARMA survey. Outside counsel can’t afford to take a “hands off” approach to the collection and relevance determination phases of eDiscovery.

5. Don’t Rely on Custodians
   The U.S. District Court in New York (National Day Laborer v. US Immigration and Customs Enforcement Agency) has established that most custodians cannot be “trusted” to run effective searches because designing legally sufficient electronic searches in the discovery context is not part of their daily responsibilities. Still, 74 percent of in-house counsel continue to rely on self-preservation in eDiscovery, according to the 2015 Norton Rose Fulbright Litigation Study.

6. Don’t Neglect the Meet & Confer
   This crucial element of the process has become even more important under the new Federal Rules of Civil Procedure (FRCP) guidelines. Make sure to bring representatives of each team – in-house counsel, outside law firm, litigation support provider – and be prepared to get very granular on the scope of eDiscovery, production formats and timetables. The Meet & Confer should be a productive first step that leads to a collaborative ongoing discussion.

7. Don’t Forget the Local Rules
   Each local court is likely to have its own unique preferences and interpretations of how eDiscovery should be conducted within the rules of civil procedure. For example, some judges may choose to place time limits for searching and reviewing documents for responsiveness, confidentiality, work privilege, etc.

8. Don’t Forget a Claw Back Agreement
   The new FRCP rules also create a “claw back” process whereby the producing party may inform the other side that privileged material has inadvertently been produced and it must be promptly returned or destroyed. However, the amended rules also stipulate that the Discovery Plan “must include whether the parties agree to a claw back and if they want the court to include the agreement in an order under Rule 502” of the federal rule of evidence.

9. Don’t Forget Hosting and Culling
   Today, even small cases involve thousands of documents, spreadsheets, printouts and vast quantities of digital information on CDs, DVDs, USBs and hard drives. Technology must be a key part of the eDiscovery workflow in order to achieve maximum efficiency and accuracy, such as using affordable software solutions to filter documents before review.

10. Don’t Forget About Social Media
    Social media communications are no longer a quirky fringe element in eDiscovery. They are now a mainstream source of electronic information that is pertinent to virtually any case. Indeed, the advisory notes to the new FRCP guidelines stresses the importance of litigation teams becoming familiar with their clients’ information systems, including social media. Beware of the social media risks in eDiscovery and make sure to incorporate an approach to collecting social media communications in your discovery plan.

To review any of the materials presented by Mallory in the “10 Don’ts of eDiscovery” webinar, please click here.

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This post is by Daryn Teague, who provides support to the litigation software product line based in the LexisNexis Raleigh Technology Center.