This article is part two of a series. To read part one, click here.
Would you like your appendix removed by a surgeon wielding a bone cutter instead of a scalpel? We wouldn’t. And yet when legal professionals go through the EDRM process in e-discovery, they often hack away with the wrong tools because they don’t know what operation they’re performing, what procedures to follow or how to carry them out.
When surgeons embark on a procedure, they first identify what they’re dealing with—its size and scope, and what the best and most minimally invasive way to operate will be. Similarly, in e-discovery, an early identification and understanding of the relevant custodians and the data entailed in the matter at hand is critically important for inside and outside counsel alike.
During litigation, owners and keepers of the electronic data relevant to the case, such as corporate employees, are called “custodians” because they have primary access to—or control over—that electronically stored information (ESI). Custodians generally are the primary source of ESI relevant to the matter. They typically store their information in many different formats, such as emails within a centralized server, documents stored on the local desktop or laptop, home folders located on a distributed corporate storage system, or even data stored in the “cloud” where it exists offsite on a remote server. Their ESI may be stored in centralized document management systems, or it may be scattered across many computers, programs and media such as thumb drives, CDs, smartphones and tablet computers.
The e-discovery team must ask the following questions:
- “Where is the data we need? “
- “How can we separate it from what we don’t want?”
- “How can we find and preserve it easily without inconveniencing a lot of people?”
A well-executed early data assessment (EDA) process can help answer these questions. EDA and its technology tools help legal professionals to summarize the number of custodians and their disparate sources of ESI that must be identified early on, which leads to more accurate budgeting and strategy planning. If EDA is not conducted well and critical data is overlooked, underestimated or, worse, deliberately concealed or deleted, that breakdown in processes can lead to court sanctions, news headlines or worse.
EDA tools can be used to look at various drives and folders to determine where custodian ESI is located. In some cases, the custodian can be relied upon to tell legal and IT where the data is. Other times, custodians do not know what data they have, or have no idea that their data is relevant to a case. In those instances, relying solely on the custodian to tell legal and IT where the data is won’t work so well.
Although there are myriad ways to get at custodians of interest and data of theirs that you may care about, a useful two-step strategy to consider using is:
- Step 1 – Identify and understand the systems implicated by the legal matter at hand where those systems are ones the custodians’ control or use. These may be fairly obvious systems, such as the email system, workstations and servers and the document management system, but they also could be something more obscure.
- Step 2 - Survey the custodians and managers of the data contained in the systems identified in Step 1. The goal of surveying and “identifying” ESI likely to be relevant to a particular legal matter requires a balancing of legal defensibility with IT and other costs and custodian burden (e.g., system downtime, time away from regular job duties, etc.). While you want to use defensible methods, you also want to avoid imposing unneeded burden or causing unnecessary intrusion.
A combination of new, more- affordable EDA technologies and coordinated e-discovery plans can give parties to legal and regulatory matters a more accurate assessment of the ESI. This assessment can then be used to more precisely calculate the range of costs in a predictable manner for searching, reviewing and producing a set of relevant documents.
Touching custodians a minimum amount of times can be an effective strategy, for example: by encouraging them to answer questions even as they acknowledge a legal hold or answer merit-related interview questions.
Focused, surgical ESI identification processes can make the assessment more accurate, but they require slightly more custodian involvementalbeit with small, quick touches. This is far better than the costly and time-consuming traditional method of collecting and processing indiscriminately, then searching using keywords and file filters to shrink the haystack, and then reviewing in a relatively serial way. With a surgical approach, time is better spent on determining the merits of the matter rather than on tedious IT or ministerial tasks.
An alternative approach to touching the custodians is to use the readily available ESI, including metadata and derivate data (i.e., the data about that ESI), to gain a basic understanding of the lay-of-the-land, and to focus on those areas that seem most likely to be important. In virtually all civil e-discovery scenarios, neither the parties nor the courts expect perfection. They need a reasonable, logical and defensible approach—not a flawless one.
EDA need not start in a vacuum. Often a party or its counsel already has data from an earlier matter than can be reused for the new one. Sometimes a client has a structured set of information that can serve as a starting point. Using simple, low-cost solutions and techniques to understand, early on, the scope of the data across the matter and custodians can provide a highly valuable jumpstart.
EDA is a short, but important, operation
The EDA process does not have to be an expensive or cumbersome part of the EDRM process. Rather, it is the entire EDRM process writ smaller, designed with a narrower focus and conducted on a smaller scale. EDA also can become non-burdensome and low-cost when piggy-backed on other e-discovery tasks such as legal hold notification. Therefore, the process to be followed across the entire EDRM diagram can be interwoven with EDA tasks to build a successful legal strategy and save money starting early on and continuing throughout the life of the matter.
Many e-discovery providers already realize that EDA is a productive method to use at the start of case, whether they are using the term “EDA” yet or not. At this point, there are growing numbers of techniques and technologies that can help with the effort in an efficient way.
EDA is a highly effective and useful method to better understand the scope and issues that may arise with respect to the ESI related to a matte. It also is a way to predict costs and plan accurate e-discovery budgets. In fact, performing EDA early ensures a clearer discovery strategy and more predictable budgets throughout the life of a matter. Done well, EDA can help parties carve away substantial amounts of data they do not need, allowing them to focus their attention and resources on the data that matters most to their cases.
The net message is: Don’t use a bone cutter if a scalpel will do.