Trial Magazine

Unlike corporate defense attorneys, most plaintiff lawyers do not have the kind of practice that requires their clients to produce large volumes of electronically stored information (ESI). But without a working knowledge of the software and the series of necessary tasks (workflows) used on the production side of e-discovery, you are at a disadvantage when negotiating or arguing Federal Rule of Civil Procedure 26 (or its state counterparts) proportionality challenges that seek to limit the scope of discovery due to costs.

The e-discovery software and ­workflows that a defendant uses largely determine the efficiency—and costs—of production, so understanding some essential features will help you counter defense arguments about disproportionate costs. The more a producing party objects to a discovery request based on claims of burden and costs, the more it opens the door to transparency—and scrutiny—of its information sources and production workflows during an evidentiary hearing on the Rule 26 challenge.

An e-discovery software platform is a bundle of discrete but integrated ­software applications, each of which supports a different element of the ESI production cycle. These software features include ESI preservation, collection, processing, analytics, and document review. A plaintiff typically uses only two of these features to handle inbound document productions: data analytics and document review. You should also understand the features that only defendants typically use for e-discovery: ESI preservation, collection, and processing.

Preservation and Collection

When a corporate defendant first becomes aware of a triggering event that requires the preservation and collection of evidence, it can use e-discovery ­software to perform those tasks very efficiently. For example, when individual custodians are identified as likely to have responsive evidence, some software products generate an email to those people to begin the preservation and collection process. The custodian opens the email, acknowledges the litigation hold of his or her information, and fills out a customized questionnaire. This activates an additional software application that searches for targeted information in the custodian’s storage locations, makes a copy of the files, and transfers the file copies to a central collection point for a legal hold.

Do no permit a defendant to claim that ESI preservation and collection is burdensome if the defendant is not using appropriate, cost-reducing tchnology for the task.

Most jurisdictions have held that a party’s preservation and collection activities are not discoverable absent evidence of spoliation or other good cause.¹ At a Rule 16 scheduling conference, however, when you are negotiating the scope of information sources and the number of custodial collections, a producing party’s use of e-discovery software to efficiently execute these tasks is generally fair game for informal inquiry. Do not permit a defendant to claim that ESI preservation and collection is burdensome if the defendant is not using appropriate, ­cost-reducing technology for the task.

Processing

Processing is one of the least understood e-discovery functions, and it is a major price point in a large-scale ESI collection and production. Processing simply changes collected ESI from one format to another to make it compatible with document review software. When being used in its original business environment, ESI is not in the same format that makes it compatible with document review ­software. Processing bridges these two formats by breaking apart data files into their constituent parts so the file’s information content and its associated ­metadata can be loaded and viewed in document review software.

But something else can happen during processing: culling. This involves the application of filters and other criteria to eliminate certain types of collected ESI from further evaluation for responsiveness. Generally, a requesting party should agree to using objective criteria only to delete collected ESI at this point in the production workflow. Objective criteria would include date ranges, file types, and files that are exact duplicates of others.

When reducing the amount of collected ESI based on subjective criteria is justified—such as by the presence or absence of specific search terms—the development of that criteria tends to require a substantial amount of trial and error. Best practices dictate that when subjective criteria are used to discriminate between responsive and nonresponsive information, its accuracy should be validated using statistical sampling and other methods.²

Because processing software typically does not have the functionality to perform these tasks, processing is not the appropriate stage to cull a data set using subjective criteria. Features such as analytics and document review are usually better suited for accurately identifying and segregating nonresponsive information before production. Using these features at a later stage in the production workflow allows initial, but inaccurate, filtering criteria to be corrected and refined before responsive information is permanently culled.

A party’s contract with its e-discovery vendor often bases the cost to collect and process evidence—at least in part—on the volume of data that remains after processing. The producing party then claims that unless ­non-validated culling occurs during processing using search terms, the overall costs will be disproportionate. But this method—deleting documents without checking to see what was left behind—is very inaccurate and results in substantial amounts of responsive information being deleted.³ Many vendors, if asked, will agree to pricing structures that permit further culling to occur after processing, at a point in the production workflow when the software allows subjective criteria to be tested, refined, and validated.

If you have a basic understanding of e-discovery technology and workflows, you can prevent a producing party from relying on its own inefficiency to justify limits to the scope of discovery.

Chad S. Roberts is a principal and founder of eDiscovery CoCounsel, a Miami law firm providing e-discovery services for plaintiffs only. He can be reached at chad.roberts@edcc.legal.

Notes

1. See generally Major Tours, Inc. v. Colorel, 2009 WL 2413631 (D.N.J. Aug. 4, 2009).
2. In re Broiler Chicken Antitrust Litig., 2018 WL 1146371 (N.D. Ill. Jan. 3, 2018).
3. See generally Dan Regard & Tom Matzen, A Re-Examination of Blair & Maron (1985) (June 14, 2013), http://users.umiacs.umd.edu/~oard/desi5/additional/Regard-final.pdf.