This is the third and final part of a series on the identification stage of eDiscovery. Part one was an overview of purpose, process and practical considerations. Parts two and three are a detailed review of the five step process of identification.
Step 4: Targeted follow-up
In step 3, a target list of relevant ESI was developed using custodian questionnaires and interviews. The next step is to circle back with the IT contact. It may also be helpful or necessary to follow up with records custodians, employees who don’t have substantive knowledge about the case but are most familiar with the actual ESI, such as records management staff and database administrators.
Follow up will be needed on some or all of these issues:
- Data volumes – Inventory the data volumes of the various sources identified by the custodians.
- Verify and translate responses – Some employees give confusing answers because they don’t know where or how their files are actually stored on the company’s IT systems. The IT contact may be able to directly translate what the employee said based on experience; at other times a little legwork may be required.
- Access restrictions – Assess potential access restrictions such as security rights, encryption and passwords. While not IT issues per se, IT staff can help flag non-technical access restrictions like cross-border data transfer and privacy.
- Third-party data – Note any sources that are under third-party control. Common examples are employee-owned mobile devices, cloud-hosted data and files of company agents (g., accountants, law firms).
- Archives and backups – Custodians may not be aware of archived or backup versions of their files; however, these should be identified and evaluated as potential sources of deleted or legacy files. A common example is archived email mailboxes created during a data migration from a prior to current email system.
- Former employee data – Understanding the data practices of current employees is often extremely helpful in evaluating the potential relevance of former employees’ data, particularly where the current and former employee worked in the same department or had overlapping job duties.
As discussed in detail in part one of this series, knowing data volume is important for many reasons including discovery planning (deadlines, budget, etc.). In addition, most of these points are pertinent to proportionality and other fact-based arguments to limit discovery. Finally, this step is an essential precursor to formulating an effective collection plan because it flags technical and logistics issues.
Step 5: Document, document, document
Each step of the identification process should be documented. The last step is to finalize the documentation.
These are the most common types of documentation used in identification:
- Memos summarizing meetings, interviews, decisions, etc.
- Spreadsheets collating detailed data map information
- Emails, meeting notes, custodian questionnaire responses and like documentation created in the course of the project
- Decision logs primarily memorializing responsiveness calls
- Documentation generated by litigation hold and/or data mapping software
The critical point of step 5 is that the documentation must fulfill its underlying purpose, which is three-fold. First, to aid in tracking and managing the identification project itself. Second, to prepare for and guide the collection process. The data map is especially important in this respect since it lists the collection targets with necessary descriptive information. Third, to defend against subsequent challenges to preservation, scope of collection and other defensibility issues. Both the content of the documentation and its existence – if thorough and contemporaneous – are significant for defensibility.
Identification in eDiscovery involves both law and technology, with some steps weighted heavily toward technology. It’s advisable to bring your eDiscovery or forensic services provider into the project as early as possible. Your provider is a valuable resource in navigating the technical complexities of the process. Following these five steps will lay a solid foundation for your eDiscovery project.
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.