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E-discovery: Memorializing the e-discovery process

A well-documented e-discovery record can prevent sanctions and save litigation costs

This article is the first installment in a series on e-discovery issues impacting inside counsel and areas that offer the greatest opportunity to reduce risks and save costs. This column looks at one of the most fundamental yet often ignored aspects of managing the production of electronically stored information: memorializing the process. 

Creating a well-documented record of the e-discovery process is critical. In determining whether parties have complied with production obligations in civil litigation, courts are guided by the touchstone of reasonableness. Even the simplest e-discovery project requires many decisions on various technical, legal and factual issues. And while every case is different, parties must generally be able to explain what they preserved, collected and produced—and why.

Retention policies, systems architecture, data maps and custodial interviews 

Another sea change from the Zubulake opinions came out of that court’s admonishment that counsel should become “fully familiar with her client’s document retention policies, as well as the client’s data retention architecture.” This, the court found, “will invariably involve speaking with information technology personnel, who can explain system-wide backup procedures and the actual (as opposed to theoretical) implementation of the firm’s recycle policy” and will involve “communicating with the ‘key players’ in the litigation, in order to understand how they stored information.” This implicates several areas that also should be memorialized. 

Collecting, culling and sampling

Obviously, the process of collecting data from custodians, remote devices and company servers should be carefully documented. There should be chain-of-custody memoranda for every physical device or hard drive collected, as well as a thorough written explanation of the collection process. Usually, parties will over-collect, then preserve and cull the data.

Contributing Author

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Alvin Lindsay

Alvin F. Lindsay is a partner specializing in complex commercial litigation at the Miami office of Hogan Lovells US. He frequently writes and speaks on...

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