Any good e-discovery process is an exercise in management of electronically stored information (“ESI”). The most important decisions that will affect the successful or unsuccessful outcome of this process are made before the documents are collected and before the discovery plan is signed by the judge. Determining what ESI is wanted, where it is, how to get it and how to process it in a way that is meaningful for trial is the ultimate goal.

Managing ESI involves several steps. If you are fortunate, you will be involved from the very beginning of the process.

Take a look at the ads selling e-discovery products and you see that most ads pushing e-discovery software are now aimed at corporations who are seeking to reduce the cost of complying with e-discovery before litigation is filed. Corporations have learned the hard way that a poorly managed approach to e-discovery can cost millions of dollars per case and the larger companies have enthusiastically embraced technology intended to manage their documents and ease the production of documents. By requiring all corporate operations to use document management systems that are designed from the ground up to create an easily manipulated database of information, the job of counsel becomes much easier. However, the move toward managed documents is incremental at best and many clients are still likely to be lacking any unified document management system. You will essentially be building a system for a subset of the client’s ESI as part of the discovery process. Even clients that have a document management system will have ESI and paper documents in other locations and buried in laptops, phones, and workstations.

When litigation begins or is seriously being considered, there are several steps that counsel should take:

1. Determine if the case could involve e-discovery. Many cases in Iowa still proceed as though the rules and practice have not changed since the 1950s. Much discovery is still handled through the exchange of paper. This may be less true in federal court and less true as time goes on. Given the high cost of e-discovery, pretending that it does not exist may actually work for some litigants.

2. Will litigation be asymmetric? In other words, is the burden of handling e-discovery going to fall disproportionately on one party?

3. Is there any concern over forensic evidence? Are there concerns that data has been falsified or manipulated?

4. Include the topic of e-discovery in initial client conferences. Clients need to be aware that the cost of handling e-discovery can actually exceed the attorney fees if not properly managed.

5. Consider sending out a litigation hold letter as soon as litigation seems likely. See Attachments A and B as examples. Attachment C is a letter sent to the target (the State of Iowa) warning of impending litigation and asking that a hold be placed on electronically stored information.

6. Schedule conferences with the client and IT staff as a follow up to the litigation hold letter. Make sure the client understands the duties and risks of non-compliance. Put it in writing.

7. Start trying to determine if this is going to be a complex case with hundreds of thousands or millions of documents that need to be processed?

8. Determine the level of technological sophistication of both parties. If they are involved in information technology, then they may have a heightened awareness of the complexities of e-discovery and have a different level of expectations.

9. Meet with IT staff to determine what types of challenges they may face in responding to discovery.

10. Start working on budget projections for the case and make certain that the client is aware of those potential costs.

Once you have developed the strategy for your e-discovery case, the next step is to develop a discovery plan. This will be covered in the next installment.

— James Pray