Melanie Ryan, Manager of Information Logistics at Freehills, explores how successful management of ediscovery hinges on the relationship between a lawyer and their client.

The following scenario is increasingly familiar to most of us working in the fields of law and information management. A company is facing a potential litigation, and their legal advisor has requested that they send in all information relating to a particular event over a range of dates.

The company officer responds that there are a lot of emails on the matter, some hard copy documents plus Word documents on the company network, but they are not certain what other team members have or even where it may be located. The legal advisor says ‘That sounds a great start, send in everything that you have.’

In practice what happens next is this. The litigant will gather the information they have and send it to their legal advisor in a format that they can manage quickly. How they tackle this will depend on whether they have an IT team, and their technical skills and resources.

Without the proper legal advice to the effect that mismanaging electronic records can create problems for discovery, a client may attempt to burn documents to disks in different formats, resort to printing all emails, or send in every backup tape they can find. Responses to managing electronic documents can be as varied as the formats available.

How much information is ‘unmanaged’?

What we are seeing now is that businesses are increasingly sophisticated in the way that they capture and share information, but the way they manage that information hasn’t necessarily kept pace. Our working day is filled with the creation and review of electronic information, whether it is simply writing emails, authoring electronic documents, querying databases, updating financial systems or sending text messages.

It has been found that electronic records are more than twice as likely to be described as “unmanaged” than paper records.
Uniform email management policies instructing each employee on how to save, store or delete emails are rare, enforcement rarer. Integrated document management systems that contain all communications created by a company are expensive to set up and difficult to deploy.

If records are not clearly managed for general business purposes, the problem is generally exacerbated when it comes to litigation. When seeking advice on a possible litigation, a litigant will rarely reflect on the legal ramifications of how they collect, preserve and manage potential evidence. If their lawyer does not advise of potential legal issues, the litigant will assume that there are no issues to manage.

The challenges for legal advisors

At this point a lawyer is focused on getting the information in front of them as fast as possible so that they can review, assess and advise the litigant on the matter. They are generally not considering: ‘How does my client manage information on their servers or backups? What are the document retention policies in place? Will they be able to transfer the documents without corrupting the metadata?’

A lawyer may conclude that because their client is sophisticated in the use of digital technology, they are just as sophisticated in the management of it.

When a request is made to send in all documents for a specific period, for specific employees, a lawyer can’t assume their client has systems and methodologies in place to manage such a transfer. Litigants who don’t have such systems may literally send over everything they have. This can result in mountains of information and significant costs as the legal teams is then left with the gigantic task of sifting through it.

Most organisations have varying degrees of experience with electronic document discovery and many will find the issue unsettling. They will not always understand the technical language or concepts that are raised.

Some may believe that ediscovery is a case management tool for large scale matters with large numbers of documents. This is a hangover from the days of using databases to assist in large, complex matters by digitising hard copy material.
For smaller matters, litigators may be tempted to deal with electronic documents as if they were paper (i.e. print out electronic documents for the purpose of discovery). The courts generally agree that this is ineffective and a waste of time and money.

Many may not be aware that by printing out the documents they are restricting their ability to identify where information was held, by whom, who created it and who has seen it.

In addition, litigators are not always aware that this information about a document, often held in the metadata of a document, is deemed a ‘document’ also and should be discovered.

Legal advisors with experience in ediscovery techniques on a matter may assume that they can replicate the same techniques for their next client and may not be aware of the implications of the clients’ differing platforms, software and methodologies. They may not at first think through the implications of the facts of the case requiring different sources of evidence or a higher standard of evidence.

So where does the ediscovery expert come in?

The first thing is that each case must be assessed at the beginning, keeping the issues in dispute and the evidence required at the forefront of any ediscovery strategy. The strategy must relate to the individual organisation’s information management configuration.

Litigators do not need to be specialised in the technicalities of ediscovery and electronic document management. They need to recognise the issues and rely on those with the expertise such as ediscovery consultants to address the detail.

Wherever electronic documents may need to be disclosed (which now probably means every matter), a legal advisor needs to alert their client early on to look at their document retention and backup policies. Many are unlikely to be aware of this unless their legal advisor raises it. As part of the discovery management, normal working practices such as overwriting backup tapes or email deletion policies must be discussed, so that a litigant does not inadvertently destroy documents that are potentially relevant to a matter. Failure to stop inadvertent destruction of documents can result in criminal sanctions.

Conversely, a sensible boundary should be placed on what information is preserved during the litigation period – litigations can run for years and it would be onerous on a business to be prevented from deleting any material.

Creating a data map

Time should be spent at the beginning of a matter understanding what systems the litigant has in place and how material is stored.

We often advise creating a data map that provides this overview. When all of the sources are mapped, from servers, to backup tapes, laptops and CDs, litigants may be shocked at the amount of material that may be involved.

With a data map it is easier to come up with a strategy for data collection and also look at alternative approaches to cull data or limit the extent of the disclosure to a level that is proportional. The next consideration is to settle the extent of the collection in the data map: find out who are the relevant custodians of the information; limit the servers or directories that are searched over (if possible); and ensure the relevant time period for the documents to be retrieved is clear.

If the material to be reviewed is still voluminous, there is an opportunity to be proactive with the other parties to the dispute. There may be opportunities to minimise time and costs by using search techniques, such as keywords, to limit the material to be reviewed and speed up the process of the litigation.

Beware of the backup tape

One specific data source to be wary of is the backup tape. Locating material on backup tapes can be a burden due to the server space required and the time it takes to restore each tape. There are also an inordinate amount of duplicates created.

Backup tapes should be the last information store that you would wish to use to locate relevant material – look to the live servers and archives. Establish whether they are required to be restored.

The nature of backups has led many leading companies to make a document management statement regarding their approach to backup tapes when it comes to litigation.

They will state that their backups are for disaster recovery purposes only and that data is stored in an archival/records management systems. This is to ensure this burden is avoided through an ediscovery process.

Discuss with the legal team the facts of the case and the evidence required – should data be collected forensically, or particular material preserved. Forensic investigations may become the relevant course of action in a discovery.

The investigation should be carried out by suitably qualified practitioners who can attest in court to the methods and findings used in the forensic investigation. But most ediscovery exercises do not require this level of evidence.

An example where this might be relevant is where it is necessary to analyse actions on a network or PC carried out by a relevant person, e.g. sites visited, documents opened, documents copied, downloaded files, or to obtain confirmation that an email was sent or received.

Most importantly, keep a record of what you have done. You should be able to establish and defend where a document came from, and how it was handled once collected, so that when you are looking at the original document, you can be certain nothing has been changed or added.

To do this, it is best to create an audit at each stage of each process that is carried out, so that clear and contemporary notes can be presented in court. How you manage your collection process will establish whether the chain of custody can be preserved and defended. These records should be maintained by all parties to the process.

The volume of information we are creating in businesses today and the varying formats involved mean that evidentiary information is unstructured and this is an anathema to litigators who wish to know where information is held, by whom, who created it and who has seen it.

The electronic layer can create in litigators a sense of removal from the process and the evidence; it feels out of their area of expertise. For the litigant, the volume and production of material is onerous and distracting.

Repeated attempts to locate relevant material and then meet the subsequent legal costs are frustrating.

Whilst any litigant is engaged in a dispute and managing these issues they are not focused on their core business. Time, money and commercial imperatives all mean they are keen to deal with the task of discovery quickly.

The solution lies in consulting with ediscovery experts early on the issues and not applying ‘one-glove-fits-all’ solutions. Ediscovery issues are rarely black and white and require litigants to manage the subtleties of many shades of grey.

The benefits of employing ediscovery strategies can be laid out in terms of enhanced case planning, cost savings and improved efficiencies.

The process also provides a legal advisor with much greater knowledge of their client’s business and internal operations, which can only enhance the relationship.