Identifying data before collections has big gains for law firms, clients
Without proper knowledge of how to identify Electronically Stored Information (ESI) at the outset of a case, lawyers step into risky territory. Improper collection methods can potentially cause sanctions and loss of a case. Today the courts have no tolerance for eDiscovery impropriety, which is leading to unfavorable rulings unrelated to the actual merit of the case.
The 2014 case “Small v. University Medical Center of Southern Nevada, Dist. Court, D. Nevada” highlights these risks: UMC performed a collection using an IT employee. Although custodians’ emails were collected, some personal directory files were missing. The judge ruled that “UMC failed to establish a documented process collection or collect in a uniform, defensible, and documented manner.”
UMC made a number of electronic discovery errors during the court case, which caused the case to drag on. Ultimately, the judge appointed an electronic discovery special master in the case, which led to five in-person, all-day hearings with the special master, 14 telephone hearings, more than 20 declarations or amended declarations from UMC agents and employees and written testimonials by ESI experts. Delays in this case wasted not only time but also money.
In the U.K. case of “Smailes v. McNally,” a claim for £50 million was thrown out, without consideration of the merits, due to poor disclosure. Numerous missteps occurred, including the claimants failing to make a reasonable search for documents and unresolved issues using Optical Character Recognition on scanned documents, which left documents unable to be searched for keywords.
However, by using a consultant early on in your case, you can avoid the risks faced by UMC, Smailes, and many others. An experienced consultant understands the legal requirements, the technological landscape and what types of information could be potentially relevant to a matter.
Consultancy offers creative solutions to clients
For consultation to be effective, adding value while reducing the potential risk for clients, the consultation timing at the onset of a matter is key. Understanding clients’ objectives early on allows for consultation with the big picture in mind, eliminating inefficient or duplicative efforts throughout the matter while also ensuring clients’ ESI obligations are met. Every matter doesn’t need to go to eDiscovery, or even to collection. Through consultation, companies may find that simply the identification of data is enough for their specific case needs and legal strategy.
That was the case when LDM Global was contacted by Darwin Gray, representing a large public health organization that had large volumes of data stored, including medical records. A potentially complex, multi-party litigation was in sight, and it was crucial that the firm understand which documents were available, what they contained and where they were located on the servers. However, because of the confidential nature of the documents, a standard collection process was not possible. It was decided that only appropriate data could be imaged and that no data could be removed until and if disclosure was required.
After a thorough consultation, the solution to the confidentiality and data protection challenges was for LDM Global to do a pseudo-collection; this did not remove any data but ensured that the servers were “mapped” to provide a searchable database of the types of documents available while also imaging the servers for the client to ensure a defensible preservation strategy.
“LDM Global’s advice was very useful in portraying the client’s position and helped in settling the case,” said Herc Ashworth of Darwin Gray.Read full details of the case here.
Upfront consultancy saves huge costs via reduction in data at every stage
In a recent U.S./U.K. cross-border intellectual property matter, the client benefited from upfront consultancy and saved on collection and processing costs while avoiding the risk of sanctions or delays in court.
The U.S. law firm was confronted with a client involved in an American litigation. A U.S. company engaged a law firm to litigate against any potential competitors, driving up costs to force anyone else to simply roll over, settle and sign a commercial waiver not to use similar materials in their business. The client believed it had a strong case and needed a proportionate way to combat the claim.
As part of the claimant’s strategy, the client had received an extremely broad production request, and company officials thought that the material could be spread anywhere – in the total 15 TB of data. At one point, they considered only collecting emails. However, during the consultation process, LDM Global’s Director Sean Theron, acting as the lead forensics consultant, noted that the judge had a reputation for being very eDiscovery savvy and would not accept an incomplete eDiscovery exercise.
LDM Global’s solution for the client was to offer fixed fee consultancy to scope and identify data across their infrastructure. Sean Theron reviewed the case documents for a thorough understanding of the matter, then directed LDM Global staff to go on site and map the client’s ESI. Nothing was actually imaged. Screenshots, including directory listings, were taken to get a snapshot of the data. Through the data mapping, LDM Global then helped to identify what information was actually needed to comply with the production request, identifying only 1.8 TB of data out of the original 15 TB.
After the 1.8 TB of data was collected, it was then culled using forensic tools and following the ESI protocol agreed to between the two parties. This further reduced the data by about two-thirds, to only 615 GB needed to be processed.
LDM Global’s team then assisted outside counsel in applying search terms. Modified terms were tested for the purpose of preventing overly broad results per the guidelines outlined in the ESI protocol while at the same time ensuring the discovery deadline was met. The final result was 53 GB promoted to review.
The client was able to significantly reduce its data – and thus costs – and was able to achieve a tight deadline through LDM Global’s consultancy. This would have been nearly impossible had the client collected all of the original 15 TB of data.
The process was defensible in court, and although the plaintiff challenged LDM Global’s client on whether it adhered to the discovery protocol – including the identification of data and chosen custodians – the judge sided with the client. The ruling proved that the consultation with LDM Global went a long way in ensuring a positive outcome for the client.
Up-front costs vs. risk
Ultimately, when deciding whether to hire a consultant at the outset, it comes down to the risk of making a mistake that could lead to sanctions or cost orders, case delays, missing important documents or not realizing the creative solutions that can get you the necessary information quickly to make an informed decision on your case strategy. Spending a proportionately small amount on consultancy up front can save drastically down the road.
Given client and court pressure for increased proportionality and reduced costs, it is not acceptable to unnecessarily process and review data that should have been removed through the identification phase for a repeatable and robust discovery process.