E-Discovery Best Practices

COVID-19 has changed the world we live in. People are working from home, students are attending classes online, and all group events are handled remotely. For those of us who work in the E-Discovery field things have changed also. While we are facing new challenges, we are also finding interesting new opportunities to conduct our work more efficiently, and everything we are learning will inform our work even after the pandemic is over. 

Companies and organizations use social media ("SoMe") to gain market advantage, shape and model their own image, market and advertise to customers, track how effective their marketing campaigns might be, understand who their customers are, test new products or services and provide a platform through which customers can provide feedback. Every post or piece of analytics could be considered a “business record,” subjecting it to discovery in both civil and criminal litigation, internal and government investigations or audits. As a result, attorneys and their IT teams should understand the best practices for preserving, processing, reviewing, and producing data from SoMe sites to acquire valuable – and usable – evidence.

“But in-house counsel was copied on the email, isn’t that enough?”

When a business faces the prospect of producing documents in litigation, determining which documents are protected by the attorney-client privilege and preventing those documents from inadvertent disclosure is of paramount importance. Such a disclosure can have serious consequences for both the attorney’s and the client’s interests, including a court finding the privilege has been waived. At the same time, if an attorney is overly restrictive or indiscriminately withholds documents, they risk losing credibility with opposing counsel and the court, which can make it more difficult to assert the privilege when necessary. 

In my experience as an e-discovery project manager, I’ve found that one of the primary reasons for lengthy document reviews is the need to redact documents. While the extent to which redactions will be needed may not be known at the outset of a review, good project management should include recognizing when and what type of redactions may be needed. Factors to consider include the type of case, the extensive nature of the collection process, the type of files processed for review, the stipulations agreed to in the ESI protocol and protective order, the sophistication of the legal teams involved, the contentious nature of the dispute and, perhaps of equal importance, the technology available to apply those redactions.

Waiver of privilege and particularly inadvertent waiver of privilege is always a concern in e-discovery when producing documents to an outside party. Not only may your current litigation be affected but waiver may also affect your client’s future litigations and other litigation teams that had no involvement with your production. This is a particularly serious concern when producing documents to the government, given the power dynamics involved.

Life around the world has significantly changed in the last three months. From job losses, homeschooling, and working from home, daily life is not the same as it was in February. The world of E-Discovery has not been immune. Law firms and service providers have been forced to adapt to a quickly changing environment. From an E-Discovery perspective, the use of these remote working tools creates new data sources for preservation and collection. Diligent attorneys and clients would be wise to consider and discuss how these tools might impact the phases of E-Discovery moving forward.