The E-Discovery Field Guide
Cost-Effective E-Discovery Strategies for Litigation on a Budget: Four Cost-Saving Steps Resulting from Implementing an E-Discovery Plan
Last month, we outlined a sample E-discovery process for a modest-sized case. We did so in an effort to dispel the common misconception that E-discovery is always too expensive or too complicated. It need not be. Following a strategic E-discovery plan has the potential to reduce costs over the course of a case, and the process itself has many advantages over an ad-hoc or self-directed collection and production process. These advantages will vary from case to case, but the following steps can yield significant cost savings.
1. Centralized Collection
Relying on custodians (e.g., the client’s employees) to identify and collect data themselves has many pitfalls, including a waste of a client’s time. It is likely to be time intensive for even a few individuals to try and dredge up and review old e-mails and other electronic documents. This effort will also likely be duplicative: if an e-mail is sent to multiple individuals in an organization, all those individuals will spend time searching for, reviewing, and capturing the same e-mail. This process could happen hundreds, if not thousands, of times over a given period.
Alternatively, an automated data collection performed by an E-discovery professional will centralize and normalize the collection process. For instance, multiple custodians can be collected nearly at once via Outlook or a cloud-based e-mail server. This task can be accomplished relatively quickly, exhaustively, and without duplication of effort or disruptions to business operations.
2. Removal of Duplicative and Irrelevant Data
Once collected, the automated processing (or ingestion) phase of the E-discovery process can significantly reduce costs, if performed properly. First, a process called de-NISTing can remove standard “system” files that have no evidentiary value. Second, the de-duplication process compares electronic records and removes duplicative ones from that dataset. This can be done on the custodian level, or across an entire collection. For example, the same e-mail that was sent to individuals A, B, C, D, and E would be loaded once into the review platform, from A’s account alone (with metadata reflecting the duplicate custodians). The cost savings of this step alone can be tremendous because it may significantly reduce the volume of data to be stored, reviewed, and produced.
Further, early case assessment can aid in culling irrelevant data. There are many tools to use, but an initial examination of the dataset can often eliminate large categories of non-responsive data. It is often the case that a key search term for the case, no matter how seemingly unique, brings with it non-relevant data. For instance, the supervisor in an employment action, Wallingford, has, by happenstance, the same last name as a custodian’s kid’s soccer coach. All e-mails about upcoming soccer practices can be identified and excluded from further review.
3. Improved Workflow
Reviewing data on an E-discovery platform improves efficiency, including by allowing for detailed coding and tracking of work. For starters, an electronic review makes sure that a single document, if no further review is needed, is viewed only once by a single attorney. Key review steps such as privilege and responsiveness can also be performed at the same time. And, documents can be reviewed in an organized fashion, such as by custodian, by timeframe, or by topic.
4. Ability to Change with the Evolving Case
Rare is the case where the issues identified before electronic data is collected are the very same ones at the end of discovery. Broad collection at the beginning of a case can enable an easy pivot to any new issues as they arise. For example, new search terms can be run on collected data to target responsive documents. This task cannot be completed if documents are self-collected or only a narrow set of documents is retained originally; the dataset would be limited to the issues identified at the outset, requiring a costly and time-consuming re-collection effort.
Best-practices for E-discovery collection, processing, and review have many benefits over less-methodical (and, often, less defensible) E-discovery procedures, including reduced costs. Although the cost savings with each case will be different, the overall benefits are appreciable and only increase if experienced E-discovery professionals and attorneys are involved every step of the way.
Case Law Alert: Court Dismisses Case After Plaintiff Intentionally Altered Photographs Produced In Discovery
In Lawrence v. City of New York, No. 15CV8947, 2018 WL 3611963 (S.D.N.Y. July 27, 2018), the plaintiff filed a civil rights lawsuit alleging that in August 2014, NYPD officers entered the plaintiff’s home without a warrant and damaged her property. In September 2016, the plaintiff produced photographs that she claimed depicted the condition of her apartment after the incident. During a deposition, the plaintiff testified that her son or a friend took the photographs two days after the incident, but at a later deposition the plaintiff asserted that she had taken most of the pictures. The defendants then requested the smartphones that the plaintiff used to take the photos, and, when the defendants checked the photographs’ metadata, they learned that 67 of the 70 photographs had been taken in September 2016—two years after the incident.
The Defendant moved for sanctions against the plaintiff and her former attorney under Federal Rules of Civil Procedure 11, 26, and 37.
Rule 11 Sanctions:
The court declined to order sanctions under Rule 11 against the plaintiff or her former attorney. First, the court found that the production of fraudulent pictures was not sanctionable under Rule 11 because it occurred in discovery and thus was not within the scope of Rule 11. Second, the court found that the attorney performed a reasonable investigation before bringing the lawsuit, and the attorney acted reasonably in relying on information provided by the client.
Rule 26 Sanctions:
Declining to issue sanctions under Rule 26, the court found that, although careless, the former attorney was not objectively unreasonable in relying on the plaintiff’s representations about the photographs, including because the fraudulent photos were consistent with the plaintiff’s description of events.
Rule 37 Sanctions:
The court found that Rule 37 did not apply because the attorney did not fail to comply with discovery orders, to supplement an earlier response, or to preserve electronically stored information. Further, there was no showing that the attorney’s actions were willful or part of a pattern of noncompliance.
Sanctions Under the Inherent Power of the Court:
Although Rules 11, 26, and 37 did not provide the right fit, the court also considered its “inherent power to sanction a party for bad faith litigation conduct.” Applying that power, the court found that the creation of staged photos was the beginning of a sustained effort by the plaintiff to mislead the defendants and the court, and her continually changing story was part of a pattern of evasion and untruths. The court then considered whether dismissal was appropriate as a sanction, writing that “[a]lthough dismissal is a harsh sanction to be used only in extreme situations when faced with a fraud upon the court such a powerful sanction is entirely appropriate.” Based on the plaintiff’s conduct, however, the court concluded that the “policy favoring adjudication on the merits yield[ed] to the need to preserve the integrity of the courts.” Accordingly, the court dismissed the case.
Although the Federal Rules provide certain remedies for various types of misconduct, courts still retain broad discretion and inherent power to craft appropriate sanctions. In addition, while dealing with discovery (including electronically stored information), attorneys are obligated to conduct a reasonable inquiry into the completeness and correctness of the production, but attorneys also are entitled to rely on reasonable representations from their clients. “Reasonableness” will be judged on a case-by-case basis, but one lesson of Lawrence is that attorneys must remain vigilant during discovery, particularly when a client offers an evolving, inconsistent presentation of events. Finally, another lesson of Lawrence is the defendants’ intelligent use of metadata in E-discovery: although often a review will focus on the face of documents, sometimes the more important information is contained in the metadata, such as who worked on a document, or when a document was created or last revised.
Read the Latest!
Jack Woodcock recently wrote an article that was published in the latest edition of the Maine Bar Journal regarding Federal Rule of Civil Procedure 26(f).
Follow this link to read the full article!