Defining ESI in Complex Matters

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Mar 15

Over 90% of the documents created in the world today are created in an electronic format.  Litigation costs tied to the collection, review, production, and storage of electronic evidence have become a significant piece of the litigation budget.  Electronic evidence can be found on a myriad of data sources--from laptops and desktops to IPods and cell phones.  Consequently, as the world grows smarter in its technology, it has become increasingly more difficult for litigants to understand what information is available during the discovery phase.  Most prefer to turn a blind eye toward electronically stored information (“ESI”) with the hope that opposing counsel will do the same.  However, well-informed counsel are using ESI to frame discovery disputes with opposing counsel and gain favor with the judge—especially in large, complex matters where the ability to preserve all relevant can be a significant issue.  The more successful litigators are those that have embraced technology and use it not only to gain an advantage over opposing counsel but also to save their clients’ litigation budgets.

Preparing for the rigors of complex civil litigation requires an acute understanding of the evidence supporting your case.  Complex civil lawsuits typically involve high volumes of paper documentation and electronically stored information, which needs to be reviewed and tagged for each individual claim.  As a result, the task of collecting, reviewing, tagging and producing this information involves a massive amount of redundancy and a real need to consistently categorize and produce relevant information.  Inconsistencies can lead to the omission (and possible destruction) of potentially relevant information and possible sanctions. 

Preliminary interviews with key supervisory employees and IT staff can reveal vast amounts of data that needs to be collected, culled and reviewed for relevant content.  And while the majority of the data may be centrally located in the corporate offices of the employer, key data is still likely to be located in various locations around the country.  Not only does the information reside in multiple locations but also in multiple media types--individual laptops, Blackberries, iPhones, cloud applications, backup tapes and external USB drives are just a few of the places where evidence could be found.   Media sources, office locations, key custodians all need to be discussed; only then can counsel craft a seamless, efficient discovery plan heading into the meet and confer.

The meet and confer allows the litigators to frame discovery and take out a lot of the guesswork involved in what should be preserved and what can be discarded. If unprepared for this meeting, the scope of the discovery plan could impinge your ability to focus the court’s attention on the relevant issues at hand rather than a litany of discovery disputes that do nothing but irritate the judge.  A discovery plan too narrowly crafted could require numerous requests for leave of court to supplement discovery that inevitably lead to discovery hearings before the court.  Too broadly written and your client is beset with the expense and complications of preserving voluminous amounts of irrelevant ESI.  This is a critical stage in both planning your discovery strategy and tightening the reins on discovery costs.

The most effective collection plans require careful consideration into how the data will be ultimately processed for review.  A coordinated collection strategy can ultimately save review time and production costs if done with an eye toward the final production.  Without a plan, however, review times and production costs will escalate due to the review of irrelevant data and redundant productions.  The first priority should be to identify the data sources by locating servers, laptops, external drives and other media sources containing potentially relevant ESI and putting together a list of relevant custodians who could be subject to discovery requests.  In addition, the team needs to identify which sources need to be processed for review and which need to be preserved for future use.  In complex matters, the universe of relevant data will likely expand to data sources like backup tapes, cloud applications, Blackberries, iPhones and removable storage devices.  In addition, video and audio recordings may be relevant.

Proper collection methods are vital to the timelines affecting review and production. If ESI is not collected per production requests from opposing counsel—i.e. no metadata was collected or the metadata fields were altered by the collection team--then a costly and time-consuming re-collection could be ordered by the court. Whatever means of collection is chosen, it must follow a valid chain of custody based on a legally defensible process.  Once the ESI sources have been identified and the manner of collection chosen, decisions then need to be made regarding how the evidence will be filtered for review.

All culling must be done with an eye toward how the ESI will be reviewed. The primary function of the culling stage is to filter down the large universe of ESI into a manageable and reviewable dataset.  In short, filter out as much of the irrelevant data as possible (without cutting into relevant data) thus streamlining the review process.  The most common methods to filter data include the following:

• Date range filtering: Allows the reviewing party to collect the ESI from a specific, relevant time frame. This can be done directly at the source at the time of collection or when the ESI is received at the processing center.

• Application of search terms:  This can be tricky since one never knows how successful the terms will be until they are actually applied. Obviously, the more that is known about the relevant issues being litigated, the more successful the culling process will be.

• File-type culling:  There are a number of file types that are generally regarded as irrelevant, such as system files and executable files. In addition, the review attorneys may deem specific file types, such as audio or video files or even spreadsheets, as irrelevant for the review.

 De-duplication:  This is done by applying a mathematical hash to each document in the collected evidence set and tagging both the originals and duplicates. The duplicates can then be culled out of each individual custodian’s ESI set or culled across the entire universe of collected evidence. Since possession of certain documents by certain custodians can be important to a matter, culling by custodian is typically preferred.

• Prioritization of custodians:  While technically not a culling method, there are occasions when the list of relevant custodians can leap into the hundreds, and paring down the list of custodians can save valuable time. It is at these times when the list of potential custodians should be reviewed to consider which custodians may truly possess relevant information. Prioritization can also speed along the review process by allowing the documents from the most relevant custodians to be processed for review first.

Successfully implementing these culling strategies can narrow a relevant ESI set by more then 80 percent and save millions of dollars in review time, production costs and storage fees.  Instead of reviewing duplicitous and irrelevant documents, the review team is focused on only the documents that matter to the case. 

The review stage is the most time-consuming piece of the litigation puzzle. In the initial planning meeting, the discussion should consider what review application will be used, how the evidence will be reviewed, and how it will be produced. By following this process, the litigation team is able to put together timeframes for the completion of processing, review and production stages that will meet the discovery deadlines ordered by the court and control costs. 

Another key driver in controlling costs is the selection of the e-discovery partner. When choosing a partner, attention needs to be paid to project-level support. What kind of status reporting does the partner offer? Will the partner offer strategic assistance with culling strategies? Does the partner offer review coordination, such as assisting in the review environment setup or making certain all of the reviewers are properly trained on the review application?  What reporting metrics are offered by the partner to monitor the effectiveness of the review?

Larger projects require logistical help beyond simple project management. The discovery partner must have the capability to assist with evidence reduction strategies and to design the ideal review environment for large-scale, contract reviewer projects.  Time-sensitive reviews require partners who can monitor reviewer progress and offer “best practices” tips on reviewing documents. Finding the right partner and forging a long-term relationship can be the difference between winning and losing the case.

Productions to opposing counsel represent a significant opportunity for efficiency and cost saving. Traditionally, the end of litigation meant production sets were discarded along with all of the tagged data from the review application.  The high cost of hosting data indefinitely outweighed the possible need for that information in the future.  However, the availability of more affordable hosting solutions has turned the tide. Enhanced searching and indexing capabilities have dramatically reduced the amount of data to be hosted. 

Instead of hosting mountains of irrelevant and duplicitous data in a costly cold storage facility, clients can now host the most relevant data in near-line storage or in a cloud at a fraction of the former cost.  Readily accessible archived data can be leveraged for future litigation requests, responding to compliance and regulatory matters, conducting internal audits regarding employee productivity, and measuring overall mission effectiveness.  In place of re-booting the entire process when the next discovery requests come in, counsel can tap into previous productions.  Further, since many of the cases involve the same or similar issues, the same media sources, or overlapping custodians, the ability to tap into that information without re-collecting and re-processing the data can ultimately save the client millions of dollars in discovery costs.  

The emergence of ESI as the chief source of evidence has left many attorneys and their clients looking for answers as to how to effectively manage the flood of information. Complex litigation is that perfect storm of electronic and documentary evidence.  The goal in any complex matter is simple--collect once, process once, review once, produce many. That is the true cost savings. To achieve that goal the client must engage experienced resources early in the discovery process and identify what issues—good or bad—must be addressed during the course of the litigation.  It gives counsel an invaluable advantage during the course of litigation. Identifying those challenges in the earliest stages of discovery, whether they revolve around collection, processing, review or production, is critical as companies try to reduce the risks, costs and time associated with the discovery process. 

David S. Weber is General Counsel for Digital Discovery and serves as a computer forensics consultant and eDiscovery expert to corporations and law firms. He can be reached at