Six Planning Items to Address BEFORE the Case is Filed

Guest post by Doug Austin, Editor of eDiscovery Today

I’m back with another guest post for the Avansic blog! I’ve managed a lot of eDiscovery projects for clients over the years, and probably the biggest lament I’ve heard from clients as their cases progressed was:

“I should have planned better for that ahead of time.”

By “ahead of time”, they often meant before the case was even filed.

eDiscovery projects are not the time to “learn as you go” and figure out processes and protocols that could have been addressed before the case. Parties that go into a case without a plan for how to address certain items are behind the minute the case is filed. With that in mind, here are six planning items you need to address before the case is filed:

Create a Data Map

Information Governance is the first phase of the EDRM model. But it’s the only one that happens before the case begins. That’s why it’s a circle, representing a perpetual process within the EDRM model and separately as the IGRM model. There is a lot of great technology for understanding the data within your organization today, but you first must understand where the data is located to take advantage of that technology.

These days, that data is in current in-house systems, mobile devices, cloud-based solutions, and even legacy systems. Understanding your data is more complex than ever. That’s why your organization needs to create and maintain an up-to-date data map. You can use technology to find the needles within the haystacks, but you first must understand where the haystacks are. Having a data map in place gives you a jump start in finding the data you need to meet your discovery obligations..

Have a Preservation Letter Template Ready

The duty to preserve ESI can begin well before a case is filed. That happened in this case, where a fired employee requested the day after his firing that his former employer save video footage of the incident over which he was fired. When that former employer failed to do so, they received sanctions for spoliation of ESI. Being ready for eDiscovery is not only ensuring you’re ready to produce responsive ESI, but it’s also about putting your opponent on notice that they need to preserve potentially responsive ESI too. Having a preservation letter template ready makes it easier to put them on notice as soon as the duty to preserve ESI attaches.

Sample Legal Hold Notice

Another planning item you should prepare before the case is a sample legal hold notice to instruct your own custodians to preserve ESI when a duty to preserve attaches. There are templates available to get you started, which you can then customize to suit the needs of your organization. Having that in place will enable you to get a jump start in customizing a legal hold notice for the next case and the sample legal hold notice will evolve over time as considerations and data sources evolve.

Plan for Privilege Handling and Clawback

As document collections grow exponentially in size, protecting privilege becomes more difficult (yet no less important). You need to understand your options for privilege protection before a case is filed, not try to figure them out when it's filed. Those options include the use of a categorical privilege log (instead of a document by document privilege log, which is extremely time-consuming and expensive in large cases) and the use of a Rule 502(d) order to protect your organization against waiver of privilege for inadvertent disclosures (not only in that case but any subsequent case). You’re welcome, Judge Peck!

Sample ESI Protocol

Many cases use an ESI protocol as a document that gets the parties to agree on the various aspects of how eDiscovery will be conducted and ESI will be produced. This includes everything from definitions of terms to preservation obligations and scope to forms of production and metadata to be produced to even things like defining parent-child relationships in your data, exception handling, and the use of eDiscovery liaisons. Even in cases where the parties don’t agree to use an ESI protocol, a sample ESI protocol can serve as a useful reference tool to make sure you’re considering all factors in discovery. Like the Sample Legal Hold Notice above, it’s important to evolve the sample ESI protocol as data sources change – you don’t want to find out in court that your ESI protocol failed to account for a form of data like the plaintiffs did in this case.

Evaluate eDiscovery Technology

I worked with numerous clients over the years who waited to evaluate eDiscovery technology platforms until they had a case, which forced them to make a quick decision that was often based on how they felt about the salesperson, not about their true needs for eDiscovery. Those clients usually required a lot more support to get up to speed and tended to be more frustrated than clients who had taken the time to evaluate the technology based on their long term – not short term – needs. The best time to evaluate eDiscovery technology is before you have a case, and you should be able to obtain a free trial where you can evaluate the technology before being faced with case deadline pressure to move quickly.

Addressing items early – sometimes even before the case is filed – not only saves time, but it can save considerable costs as well. Join Avansic on Wednesday, September 28th at 11 am ET for the ACEDS webinar 5 Things to Do EARLY to Reduce Your eDiscovery (or Expert) Costs by Half, where Dr. Gavin Manes, CEO of Avansic, Kassi Burns, Senior Attorney at King & Spalding, and Julie Brown, Director of Practice Technology at Vorys, Sater, Seymour and Pease LLP will discuss additional ways to prepare for your case early – even before the case begins! Waiting until the case is filed to plan for eDiscovery is too late!

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Doug Austin is the Editor of eDiscovery Today and an established eDiscovery thought leader with over 30 years of experience providing eDiscovery best practices, legal technology consulting, and technical project management services to numerous commercial and government clients.