As business organizations become more sophisticated about the costs and mechanics of e-discovery, many decide to forgo the expense of outside counsel and undertake the collection and production process alone. Of course, not every legal department has the horsepower to handle this type of work and, even if they do, many complex cases are best left to outside lawyers who do this work regularly. But for businesses that understand the process and decide to go it alone, here are some good tips:
Just as importantly, be sure to prevent any spoliation (or inadvertent destruction) of the metadata. All too frequently, well-meaning inside IT professionals will simply copy requested data into a special file or drive without taking appropriate precautions. Even the simple act of dragging and dropping a document can change (and thus destroy) important metadata like the directory structure or last-access date. This is another reason to not simply have key players send in their data. Often the best DIY collection system involves copying data over to an external hard drive using a program like Robocopy that won’t change anything. When the collection has been finalized, make a working copy of that drive for use in the review, and keep the original pristine in a sealed envelope with a memo sufficient to guarantee and verify a proper chain of custody.
- Chose a good service provider and check it carefully . Unless you will be producing a small volume of data in native format, even the most sophisticated business usually will need an e-discovery service provider to process the data into a form that can be used with the most common litigation databases (e.g. Summation and Concordance) for production. If that is all the vendor will be doing, it can usually be done for a reasonable price. Unless you have a service provider that you’re already comfortable with, be sure to get two or more estimates.
There is tremendous price completion in the field, and if you are clear on what you need, these businesses often will be willing to negotiate. But, and this is important, never assume that even the best e-discovery vendor is infallible. You absolutely must check every disc that gets forwarded to an opposing party. Horror stories of inadvertently copied privileged files abound. So never rely on the vendor to forward any production discs to anyone but you, and then be sure to review the disc yourself before sending it to the other side.