eDiscovery: The Ultimate Guide
Updated: Mar 2
A Comprehensive Overview for Lawyers and Clients
This guide will help you understand basic eDiscovery issues and is a jumping-off point for exploring these concepts in more depth. It flags key decisions for eDiscovery planning and how to save money on eDiscovery costs.
Why care about eDiscovery?
Clients can save substantial time and money on eDiscovery costs if they know the right questions to ask and there is a strategic eDiscovery plan for their legal dispute. This ultimate guide will help make that happen.
This eDiscovery guide also provides a comprehensive overview of eDiscovery for young lawyers, in-house lawyers, associates, partners, contract attorneys, paralegals, law students and others looking for a primer on eDiscovery or a refresher on key concepts so they can be prepared in tackling eDiscovery issues for their cases.
Review of ESI - Document Review
What is eDiscovery?
eDiscovery is the exchange of electronically stored information, generally as part of litigation. The goal of eDiscovery is for parties to find evidence to support their case.
The term eDiscovery (aka e-discovery or electronic discovery) also refers broadly to the preservation, collection, processing, review, and production of electronically stored information (ESI) as part of legal proceedings.
Scope and Types of Proceedings Involving eDiscovery
All attorneys and litigants should have a basic understanding of eDiscovery principles.
A basic objective of eDiscovery is to find and produce the key electronic evidence for a legal matter in an ethically sound and legally justifiable way. All attorneys and litigants should have a basic understanding of eDiscovery principles.
Courts have the power to issue sanctions against both parties and their attorneys for unsound discovery practices. And eDiscovery is often the most expensive aspect of legal proceedings.
The scope of the eDiscovery permitted depends on the type of legal proceedings involved. ESI is preserved, collected and provided for various types of legal proceedings, such as lawsuits, arbitrations, administrative proceedings, and for subpoenas.
This guide will focus primarily on litigation and subpoenas. But the basic principles are generally applicable to other types of legal proceedings.
In American lawsuits, both plaintiffs and defendants are generally required to participate in discovery. The parties must provide relevant information when required, even if the information may hurt their case.
Understanding the specific procedural rules that apply to the legal proceeding is key. Rules differ depending on the jurisdiction, tribunal, governing body, and, in some instances, by local rule and even by specific judge, arbitrator, or other decision-maker.
At the beginning of any dispute, attorneys should familiarize themselves with the eDiscovery rules so that they can make informed and legally defensible decisions on how to treat eDiscovery in the case.
For example, in federal civil lawsuits and many state district court civil lawsuits, eDiscovery is very broad.
In American lawsuits, both plaintiffs and defendants are generally required to participate in discovery. Usually, the parties must provide relevant information when required, even if the information may hurt their case.
In county, city, and other lower courts, there may be limits on the type of discovery permitted. This is often due to the fact that the disputes at issue are less complex or there is less money at stake to warrant substantial discovery.
While the parties may not have to exchange eDiscovery with each other, parties often will still want to collect, process, and review eDiscovery to support the merits of the case.
See our post on eDiscovery Planning: Why the Forum Matters.
What is ESI?
The scope of ESI is incredibly vast.
ESI is information stored in electronic form. In today’s digital world, the scope of ESI is incredibly vast.
It includes what people typically think of as electronic documents such as word processing documents, PDFs, spreadsheets, presentations, and e-mails that may be saved on a computer or company server.
But ESI also includes other types of electronic data such as information stored in apps, in the cloud, and on other types of devices like cell phones, tablets, smartwatches and other “smart” devices (e.g., smart speakers, security systems).
ESI can include chats and text messages, social media content, financial information, audio and video recordings, logs, geo-tracking data, and even biometric data.
EDiscovery is just the largest category of “discovery” that is permitted in the American legal system.
Other discovery involves preserving, collecting, and providing copies of or access to tangible things, such as relevant hard-copy documents, paper files, and handwritten journals, diaries, and logs.
These hard-copy documents are often scanned to electronic format and processed and reviewed in the same way as ESI.
Duty of Preservation & Litigation Holds
A lawsuit does not yet have to be filed to trigger the duty of preservation.
It is the norm in American lawsuits for each party to have a duty to look for and preserve information that may be potentially relevant to the claims and defenses involved in the case.
This duty of preservation attaches as soon as a party learns information that reasonably puts it on notice that litigation is likely or inevitable - a lawsuit does not yet have to be filed.
The need to preserve ESI requires that the party take steps to protect relevant ESI from being altered or deleted while the dispute is ongoing.
Because ESI can be modified over time, some ESI preservation techniques involve collecting forensic images – essentially a particular method of copying data as of a particular moment in time without altering any of the original metadata.
Sound eDiscovery preservation practices, including maintaining the original metadata, is important to avoid challenges from adversaries alleging that there has been "spoliation” of evidence because ESI has been tampered with or deleted.
What is metadata? Metadata is electronic information about an electronic file, such as document type, filepath, file size, author, version, time and date stamps, and hash values.
Because the duty to preserve ESI and other sources of information is so important to protect potentially important evidence from being lost, one party may send a preservation letter to the other side or to a third party to put it on notice of its duty to preserve relevant data until it can be formally requested through legal process.
Companies and other organizations typically use litigation hold procedures to protect and preserve ESI.
They may implement these procedures in-house, use software to assist with implementing the procedures, or even have an outside vendor or legal counsel manage and implement the entire process to ensure that necessary data is preserved.
Because many organizations have data management policies under which certain data is automatically deleted after a certain period of time, they must take steps to stop these processes from going forward.
Similarly, individual cell phone users may have settings enabled on their phones that automatically delete content, such as text messages, after a certain number of days. These settings must be disabled as soon as the duty of preservation applies.
Collection of ESI
After the data is preserved, it is then necessary to collect it so that it can be reviewed to determine what information must be produced.
Given the volume of ESI in today’s world, parties usually do not collect everything they preserve for review. Rather, they must select some portion of the preserved data to collect so that it is accessible to review.
Collection may be done manually by transferring forensic copies of the data to a hard drive, file transfer site, or dedicated server location.
There are also embedded eDiscovery collection tools within some operating systems, software, and applications that can be used. Third-party applications and vendors can also perform collections.
The decision what to collect must be weighed carefully. Some collections can be overinclusive, expensive, and time-consuming. They may collect more data than is necessary or that can be reasonably reviewed for the case.
Both lawyers and clients can face sanctions if unsound collection methods are later successfully challenged in court.
Other collection methods can be underinclusive, fail to collect the relevant data you actually need, and can expose both the lawyers and their clients to sanctions if the collection methods are later successfully challenged in court.
The key is to strike a middle ground and collect important, relevant data to the dispute in a legally defensible way, considering the specific procedural rules applicable to the proceeding.
A central concept to determining the appropriate scope is whether the discovery is proportional to the needs of the case. See my post on What Proportional Really Means.
It is important to fully document the decisions made regarding what ESI was collected and how the collection was done.
Parties may be required to reach an agreement regarding what data will be collected. Or they may choose to do so to avoid later disputes about whether the appropriate data was collected.
Review of ESI
After the ESI is collected, a review is done to determine which documents and other data must be produced to the other parties in the case or, in the case of a subpoena, to the party requesting documents.
This review is often called document review or doc review, although it can involve the review of other types of ESI than documents.
Parties review their own data to find evidence to support their case. Parties also often issue requests for production (RFPs) to each other as part of the overall discovery process.
RFPs request specific categories of information a party wants the other side to produce in the hope that the information will help support their case.
If these requests are too broad, vague, seek impermissible information, or seek volumes of information that are not proportionate to the needs of a case, a party typically may serve objections to the request and refuse to produce some or all of the documents requested.
A similar process is used to request documents from third parties through a document subpoena.
If a person or entity has relevant information to the dispute, a party may be able to subpoena the person or entity to obtain discovery of the information. A subpoena that seeks documents from a third party is sometimes called a subpoena duces tecum.
Where appropriate, a subpoena recipient also may serve objections to the requests set forth in the subpoena.
There are numerous options and strategies for how to structure and carry out a document review.
While preservation and collection are often done by clients in-house, eDiscovery review is usually done by lawyers or lawyer-supervised support staff, such as paralegals or case assistants. There are numerous options and strategies for how to structure and carry out a document review.
In some situations, typically involving small amounts of ESI, the documents may be reviewed manually, one-by-one, to determine what to produce.
In using this approach, lawyers need to be careful not to inadvertently alter the content or metadata of documents while performing their review. It can also be difficult to track and organize documents and handle redactions of privileged information when doing everything manually, which is why many law firms use discovery databases and review platforms.
In larger volume cases, analytics and processing are run on the ESI and it is placed in an eDiscovery database for review using an eDiscovery application or platform.
The expense involved with using these platforms can vary widely. It is important to ask questions and understand what additional costs will be incurred through the use of an eDiscovery database and review platform.
Many review platforms exist that law firms can use to handle the review and production of documents. Some law firms license and directly manage these eDiscovery platforms internally. Other lawyers may pay an outside vendor to perform parts of the eDiscovery review process.
Typically, the eDiscovery database hosts both the client’s data that has been collected for review from the client as well as any ESI that the opposing party or any third parties later produce as part of the litigation.
By loading these other document productions, a party may use the eDiscovery platform and underlying database as a comprehensive repository and way to review of all of the documents and other data produced in the case.
During the processing phase, before the review begins, several different tools are used to analyze and cull the data.
For example, the data is typically culled to remove duplicate files, a process known as deduplication or de-duping. System and other files that usually do not contain relevant or responsive information are often also removed from the set of documents to be reviewed.
There are many different options and approaches to reviewing documents.
eDiscovery platforms have various functions that allow reviewers to search and track or “code” information about the documents they are reviewing so that the documents can be easily sorted and organized into document productions, witness folders, trial or deposition exhibit sets, and other collections of documents.
These platforms also usually have built-in redaction tools that allow reviewers to redact privileged or other protected information so that it is not revealed to the other side.
Some document reviews still involve lawyers looking at every document that has been collected from the client or produced by the opposing party or a third party.
Clients can realize a significant cost-savings from using advanced review techniques because fewer attorney hours are spent reviewing documents that are unlikely to be relevant or useful to the case
Other reviews use more advanced techniques to limit the scope of the documents actually reviewed.
Techniques include keyword searches, e-mail threading, predictive coding, and technology-assisted review (TAR). These methods can be used to find and prioritize the review of highly relevant documents.
Clients can realize a significant cost-savings from using advanced review techniques because fewer attorney hours are spent reviewing documents that are unlikely to be relevant or useful to the case.
Because attorney-time is expensive, more senior lawyers often do not personally review documents as part of a doc review because it is more economical for the clients to have more junior lawyers, contract lawyers, or other document reviewers who charge lower rates handle the doc review.
Clients may be able to realize lower legal fees by working with their attorneys to thoughtfully plan for who is going to review which types of documents and what methods they are going to use for their review.
Production of eDiscovery
After the review is completed, there is typically a production of selected documents to the opposing party or party issuing the subpoena. The scope of what must be produced differs based on the rules of the jurisdiction as well as the specific circumstances of the case.
Some courts require the compulsory production or exchange of all relevant information to the other side if either party could use the information to support their case.
Other courts and tribunals, including the federal courts, take a narrower view on what information must be automatically disclosed to the other side. Generally, only the information that the party will rely on to prove its case must be produced in the jurisdictions that follow the narrower view.
There are many considerations to take into account in deciding how to produce documents that can dramatically impact eDiscovery costs.
When documents are produced to the other side, they usually can be provided in their native file format or they may be converted to another file format such as PDF or TIFF.
File conversion is also common when it is necessary to redact privileged or other protected information prior to production.
Each file or document that a party produces is often assigned a unique alpha-numerical identifier, called a Bates label, that can be used to refer to and keep track of the document. In TIFF productions and some PDF productions, a Bates label may be stamped on each page of the document prior to production.
There are many considerations to take into account in deciding how to produce documents that can dramatically impact eDiscovery costs.
If the parties are both using eDiscovery review platforms, there may be specific metadata fields they would like to be included in a load file to accompany the production. By preserving and providing certain metadata about the produced files, it is often possible for the receiving party to use analytics and review tools on the data to save time and money in conducting the review.
Native file productions may be preferable for certain types of data, such as spreadsheets and presentations, which can be difficult to review when converted to PDF. Native files also cannot be redacted to remove privileged or other protected data.
On the other hand, an all-PDF or TIFF production may be more cost-effective and easier to manually review for some attorneys, especially in smaller cases.
It is important to keep in mind that an all-PDF or TIFF production can compromise or limit the production of data that would be maintained with native file versions such as tracked changes and certain metadata. This data can be crucial evidence in some cases. Steps often can be taken to preserve and provide this data.
Some parties produce both native files and PDFs or TIFFs.
A well-thought-out eDiscovery protocol can avoid costly disputes between the parties regarding production issues.
As part of the early litigation conferral process, attorneys may wish to reach an agreement with opposing counsel regarding the method and format for production.
These agreements are often called an eDiscovery protocol or form part of a discovery plan. Having a well-thought-out eDiscovery protocol in place can avoid costly disputes between the parties regarding production issues.
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Disclaimer: The statements expressed in this posting are my own and are for general informational purposes only and do not constitute legal advice or a legal opinion.