Six Major Mistakes to Avoid When Conducting Electronic Discovery
The practice of law can be a delicate dance, with each step choreographed to steer clear of landmines and potholes.
For eDiscovery professionals, that foxtrot can be downright acrobatic.
Electronic discovery is fraught with potential for error. The worst kinds can lead to ethical sanctions, malpractice lawsuits, or even disbarment. Meanwhile, the mistakes that don’t quite constitute violations can still add up to costly wastes of time that delay litigation, perturb clients, or impair your ability to win a case.
In short, it pays to work with eDiscovery attorneys who know what they’re doing. Today, we tell you why with a quick look at six things that can go wrong in eDiscovery.
Perhaps the most widely feared discovery disaster, spoliation is a term on every eDiscovery attorney’s lips, and for good reason. It’s a serious legal violation and can even lead to prison time in certain jurisdictions.
Spoliation refers to the destruction, fabrication, alteration, withholding, or hiding of evidence that might be considered relevant to a case. In its most fraudulent sense, spoliation is an intentional act by people with something to hide. But it can also happen by accident, especially during discovery if the reviewing attorneys aren’t thoughtful and attentive to avoiding the risk.
It can happen, for example, when automatically removing duplicate files from the review process (de-duping) or when deleting seemingly extraneous and irrelevant system files (deNISTing), or when converting file formats (more on that below). Attorneys must be mindful of spoliation at all times when collecting and reviewing ESI, and an in-depth understanding of the risks is essential to a responsible approach to discovery.
File Format and Conversion Issues
File conversion is a routine part of electronic discovery, but it’s not without risk.
In moving from one format to the next, attorneys must be careful not to inadvertently wipe out metadata or other data attributes that might be deemed relevant down the line.
Avoiding that means knowing where to look for metadata, knowing which information might be deemed relevant for a particular case, and understanding the attributes and limitations inherent in the various file formats involved. In other words, format conversion isn’t as simple as it sounds.
Mistakes in Data Collection
The amount of data available for review during discovery can be downright mountainous, with a single case sometimes presenting tens of thousands of documents for analysis.
A purely manual review of so large a data set is virtually impossible and would present its own potential pitfalls in the form of human error.
Software, then, plays a pivotal role. But even with the aid of technology, eDiscovery professionals must draw on their own experience — coupled with a keen understanding of the case and the nature of the data involved — to establish the right parameters, run the right searches, and make sure they don’t miss even a single relevant data fragment amongst all those files.
Over-inclusive data collection is time-consuming and expensive. Even more ominously, under-inclusive data collection runs the risk of:
• Missing critical evidence
• Failing to comply with disclosure requirements
• Embarrassing the firm
Inadvertent Disclosure / Waiver of Privilege
In a case spanning years of document creation and correspondence, it isn’t inconceivable that millions of emails and ESI are on the table for review. And if even one of those contains a single line of text that is protected from discovery as either work product or attorney-client privilege, you expose yourself to inadvertent disclosure or waiver of privilege.
Ethics rules require attorneys to make reasonable efforts to prevent inadvertent disclosure of protected information. But in a case with hundreds of thousands or millions of documents, “reasonable” can seem anything but.
Mistakes are inevitable, and courts have recognized that, but make too many mistakes or the wrong kind (that is, anything deemed unreasonable or careless — a sloppy keyword search, for instance) and you could land in hot water.
Attorneys must create an eDiscovery management plan as part of the pretrial process before discovery begins. The plan should be complete with protocols for analyzing ESI and identifying privileged or protected material.
The firm should also be proactive in documenting its efforts to defend them as thorough and reasonable in the event of inadvertent disclosure.
Key to avoiding inadvertent disclosure or waiver of privilege is the redaction of sensitive files. But redaction is an art all its own, and simply blacking out text won’t always cut it in the era of eDiscovery. Opposing counsel or unintended third parties could easily undo many electronic blackouts, often by accident, and that may be enough to constitute waiver.
Rather, attorneys must take care to ensure that redacted information stays redacted from the native file to any converted file format as well as throughout all corresponding text files. This should be without regard to any cut, undo, or delete functions within the file.
This is referred to as “burning in” the redaction — an important step too often neglected by those without extensive eDiscovery experience.
Data Security Breaches
Most state bars have established rules regulating the protection of client data, rules which vary from one jurisdiction to the next and which may be updated as technology evolves (sometimes formally and sometimes in the form of a suggestive ethics opinions).
For the eDiscovery professional, there are two concerns: securing clients’ data in a practical manner (such that it isn’t actually subject to security breaches or vulnerabilities) and complying with the strict letter of the law in terms of the specific ethics rules involved (because it isn’t enough to secure the data; you must secure it in the precise manner prescribed by your state bar, if any). This requires familiarity with the client’s software and security systems as well as the applicable rules and any recent modifications to them. It might also mean working closely with IT professionals within the client corporation and/or the law firm itself.
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