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Management System for E-discovery Means More Control

This article originally appeared in Michigan Lawyers Weekly on December 5, 2008 Technology – Lawyers have looked too hard for an e-discovery silver bullet. In reality, only careful and proactive management will avoid potential pitfalls while, at the same time, drive your cases to a more efficient and successful resolution. A simple yet detailed checklist can do that.

The earliest stages of a dispute are when the most significant steps of e-discovery are best carried out. This can be well before a suit is filed, running up through the early periods of discovery.

Post-engagement phase

This is the first one to two weeks after you are engaged to handle a dispute. It can vary, though. As an example, for patent litigation, if you are a defendant, sometimes counsel is not engaged until after a complaint has been filed and served. Often, though, parties on both sides know a suit may be coming well before that.

However it happens, you should not only provide your clients with a “litigation hold” instruction (including wide-ranging anti-spoliation guidelines), but the client should be counseled on e-discovery process. He needs to be aware that information will be gathered from a wide range of corporate servers, and may even require gathering information from third-party servers.

Your client also needs to provide you with information sufficient to form an initial estimate of the time needed to gather such information, and how much it may cost.

Ask for documents and data retention policies, and information about where and how electronic data may be archived. Also, learn about any corporate document-management systems or the like, and formal or informal document-retention policies or practices.

Pre-Rule 26(f) conference

Once all pleadings have been filed, consider your Rule 26 disclosure obligations, which now include the obligation to provide complete disclosure concerning the nature and location of electronically stored information (ESI).

Interview your client’s information technology personnel, and be sure to ask for an architecture diagram showing the location, accessibility and relevant details (operating systems, software applications, etc.) of all corporate servers.

You also need to identify all corporate computers, including individual users’ desktop and laptop systems. Focus on those used by employees who are most knowledgeable about the facts of the dispute. Be sure to ask IT personnel to identify instances in which data have been lost or corrupted, because your opposing counsel certainly will.

List all of the different file types in which relevant electronic information may be stored, and that list should further identify any metadata (i.e., data about the files such as author, created and modification dates) that may be associated with various files.

You also should consider what keywords may be used to obtain relevant data from electronic stores.

Rule 26(f) conference

Be prepared not only to discuss what documents may need to be produced, but also to specify desired file formats, keywords of interest, as well as metadata that you expect to be produced or are willing to produce.

Producing bankers boxes of documents for your opponent to plow through no longer works, but be prepared to negotiate e-discovery obligations that you know will be unduly burdensome or expensive for your client.

Beginning discovery

Once discovery begins, regularly return to your e-discovery checklist to make sure:

Electronic information is being properly maintained.

Search keywords are being properly used.

Documents are being properly coded and formatted for production.
Careful construction of, and repeated attention to, your e-discovery checklist can prevent horror stories and can allow you to maintain control of the discovery process and gain tactical advantage for your client.

Charles A. Bieneman and Leigh C. Taggart are partners in the intellectual property law firm of Rader, Fishman & Grauer PLLC, in Bloomfield Hills. Contact them at (248) 594-0600, cab@raderfishman.com and lct@raderfishman.com