“Identification” in eDiscovery is the process of learning about the client’s electronically stored information (ESI) in order to locate, preserve and collect discoverable data. The identification stage is the foundation of the entire eDiscovery project.
The aim of eDiscovery identification is to learn:
- WHAT data sources and data types are potentially relevant;
- WHERE the discoverable ESI is stored;
- WHO created it and controls it;
- WHEN it was created;
- HOW MUCH potentially relevant data exists.
This post is part one of a three part series on eDiscovery identification essentials. It provides an overview of the purpose, process and practical considerations of identification within the overall eDiscovery project. For a related primer on the main sources and types of ESI, see my article Know Your ESI, Categorically Speaking.
Purposes of eDiscovery identification
The primary purpose of identification is to determine what ESI needs to be preserved and collected for the case. The benchmarks of identification are accuracy and completeness. Because data volume is the main cost driver in eDiscovery, overbroad preservation and collection is costly and wasteful. On the other hand, preserving and collecting too little opens the door to defensibility challenges.
There are significant risks in an incomplete or haphazardly conducted identification process. Helpful evidence may be overlooked. Process inefficiencies cause unnecessary expense. And failure to identify relevant ESI often leads to it not being preserved or collected, with the associated risk of sanctions.
Identification has numerous uses beyond guiding preservation and collection:
- Early discovery requirements – Identification is invaluable in preparing for meet and confers, initial disclosures and scheduling conferences with the court. Conferences in particular are far more effective – and pose less risk of mistakes that later have to be rolled back – when the participants are educated about ESI sources, data volume and technical or logistical challenges to collection.
- Written discovery responses –Objections must be made with specificity in federal cases. Identification provides information to make specific objections to requests for production and interrogatories; for instance, the burden and expense of obtaining the requested ESI, two of the proportionality factors under Rule 26(b)(1).
- Discovery motions – Discovery motions are similarly fact-intensive. Identification gathers the supporting facts for motions for protective orders and cost-shifting or cost-sharing. Case law and judges’ surveys make clear that arguments that are specific, fact-based and discuss all relevant legal factors (g., the six factor proportionality test ) have the best success rate.
- Discovery planning –To set realistic deadlines for document production, parties must have a fairly accurate estimate of data volume. Identification provides the best available data volume estimate before collection.Budgeting and staffing, especially during the eDiscovery review stage, is likewise primarily based on data volume.
Identification as a five step process
Identification isn’t one size fits all; the details vary considerably in response to the particular needs of each case. Nevertheless the typical identification project follows the same general progression. Identification starts with a wide lens and gradually narrows the focus to target relevant ESI.
This is the basic five step approach:
- Learn about the case – Talk to the business contact and/or key custodian to learn about the facts and issues of the case, start a list of custodians (e., employees with knowledge of the facts of the case and/or who have custody of relevant ESI) and make a preliminary inventory of relevant sources of ESI.
- Create a data map – Begin creating a data map of potentially relevant ESI by conducting an in-depth interview of the IT contact about the client’s systems and practices. Ask about former employees’ data and follow up on sources identified during step 1.
- Question the custodians – Guided by the knowledge gained during the first two steps, use custodian questionnaires, interviews or both to compile an accurate and complete list of relevant ESI.
- Targeted follow-up – Circle back with the IT contact and business contact to map the data sources identified by the custodians in step 3. Flag technical and logistical issues related to preservation or collection.
- Document the process and findings – Fully document steps 1 through 4, including a comprehensive summary of the identified data to prepare for the ESI collection.
Practical considerations in the identification process
Identification is a hands-on undertaking. A little planning and coordination at the outset makes the process much smoother. Three important practical considerations are who should participate, when to begin and interview logistics.
The lawyer managing the eDiscovery project should have direct involvement throughout the process, often assisted by a paralegal. At the client, in-house counsel, the business contact and IT are the primary participants; in some cases it’s helpful and appropriate to also involve a key custodian. Your eDiscovery service provider is another valuable resource, particularly for consulting services related to collection.
Best practice is to start the eDiscovery identification process as soon as possible, even before the case is filed. Preliminary identification of ESI sources and data volume is critical for an effective discovery conference. Significant proportionality concerns and other discovery issues are best raised at the outset of the case before costs are incurred. Perhaps most importantly, delays in identification have a ripple effect on the subsequent eDiscovery stages of collection, review and production. This is likely to result in cost overruns and missed deadlines.
Successful identification hinges on frequent and transparent communications with the client. In-person meetings are ideal for the first two steps (conversations with the business contact, key custodians and IT).If a meeting is impractical, a phone conference will work. Online meetings with screen sharing are highly recommended for custodian interviews. They can also be helpful for the initial and follow-up communications with the IT contact. My article One Simple Cost Containment Strategy: Online Meetings covers the benefits and how-to of using online meetings to facilitate identification.
Because it initiates and determines the scope of the overall eDiscovery project, identification has an outsize effect on everything that follows. A careful, thorough and fully documented identification process lays a strong foundation for your case.
Helen Geib is General Counsel and Practice Support Consultant for QDiscovery. Prior to joining QDiscovery, Helen practiced law in the intellectual property litigation department of Barnes and Thornburg’s Indianapolis office where her responsibilities included managing large scale discovery and motion practice. She brings that experience and perspective to her work as an eDiscovery consultant. She also provides trial consulting services in civil and criminal cases. Helen has published articles on topics in eDiscovery and trial technology. She is a member of the bar of the State of Indiana and the US District Court for the Southern District of Indiana and a registered patent attorney.
This post is for general informational and educational purposes only. It is not intended as legal advice or to substitute for legal counsel, and does not create an attorney-client privilege.