Litigation newsletters, blogs and case law are full of cautionary tales about eDiscovery gone wrong. Hard drives that were reformatted, backup tapes that were lost and files that were never collected have cost dozens of companies millions of dollars in sanctions. In other cases, discovery disputes slow the pace of the litigation to a crawl, adding time and money to the outcome. Keeping the pace of the litigation moving is the one of the most effective way to lower the cost of eDiscovery in a small case.
- Inventory what you have. As soon as you can, determine the “who,” “what,” “how,” “where” and “when” of your client’s records. Identify who the key players in the case, and talk to them to find out what software applications they use and how they use those applications. For example, does a user overwrite monthly reports in the ordinary course of business, or does she create a new file for each monthly report? Identify locations where these files stored, such as network drives, hard drives, databases and portable devices. Determine when the files related to the case would likely have been created and/or modified.
- Preserve the files. Nothing bloats a cases’s timeline, costs and attorney fees like a claim of data spoliation, so make sure to preserve the files you have.
Issue a written or e-mailed “litigation hold notice” that informs custodians of their duty to preserve their records while the case is pending. Identify the date range and types of files that need to be preserved. Require custodians to acknowledge receipt of the hold notice and to affirm that they will comply with the request. Provide them with your name and contact information so they can call or e-mail you if they have a question about the kinds of records that need to be preserved.
Include your client’s IT employees on the hold, and talk to them about the most efficient way to preserve and produce copies of the company’s files. Isolating a backup tape from the date range at issue helps prevent a spoliation charge, but restoring data from a backup can be costly.
- Act early and proactively. Meet and confer early with opposing counsel. Rule 26 of the Federal Rules of Civil Procedure requires counsel to meet and confer about the scope of e-discovery within 120 days of the date the defendant is served, and many states have a similar requirement. Don’t wait until the 119th day to meet and confer with opposing counsel. Be proactive and act early.
- Use your client’s IT staff instead of hiring an eDiscovery vendor. Keep costs down by using inhouse resources to preserve and collect files. If your client’s IT team has the know-how to copy hard drives and transfer files, you can save thousands of dollars by letting them take the lead on data collection. Put one person in charge of the process, and make sure he or she documents, step by step, the work that the team does on the case.
- Go native. In a small case with very little data, exchange native files with opposing counsel. You’ll save your client the cost of processing the native files and converting them to pdf or tiff files. Save an unaltered copy of the files as they were collected in case a file’s integrity is called into question. In most cases, however, it’s the content of the files, not the way they were collected, that makes up the meat of the case.