E-discovery tips for attorneys

Start ASAP. Gathering, processing, searching and analyzing documents during e-discovery can be a time-consuming process. Attorneys should seek to involve an e-discovery professional on the front end. It can be a tricky predicament when there is more information to review than the allowed time. Hire an e-discovery expert. While your client's IT staff may be very qualified and is certainly an excellent source of information as to the whereabouts of electronic records, they may not be versed in the legal aspects associated with gathering and searching electronic documents during litigation. This type of specialized knowledge that an electronic discovery expert brings will become especially important in the event that you are required to defend your document collection protocol. IT infrastructure is key. Understand how your client's computer system works and where their documents are stored. Documents can reside in multiple locations. Involve your client's IT staff and an expert in the electronic discovery process to efficiently and comprehensively locate all sources of relevant documents. Reach agreement with your adversary. It is important in both large and small cases to seek agreement with your opponent as to what format e-discovery will be exchanged in, including the specifics such as which metadata fields will be exchanged. A mutual understanding from the onset can avoid costly consequences in the end. If you cannot reach agreement, seek the guidance of the court. While a "meet and confer" is mandatory in Federal cases, it is just as important in other cases. Time is of the essence. Many company's backup systems are designed for disaster recovery only and not for record retention. This means that backup media are rotated far quicker than in traditional backup schemas. If backup tapes are even remotely likely to be involved in your document production, you need to communicate with your client quickly to avoid the inadvertent overwriting of what may be key pieces of evidence. Understand the costs. E-discovery costs can be managed efficiently, but can also add up quickly if care is not taken in the planning and execution of your collection and search. Having to re-do a collection because the first attempt was ill-planned is a prime example of unnecessary cost. Discuss with your vendor to establish proper cost reporting milestones appropriate to your particular situation. Identify all of the custodians. Too often parties in a lawsuit gravitate to just the "key players." During The Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of America Securities, 685 F. Supp. 2d 456, 471 (2010), Judge Shira Scheindlin wrote: "[T]he failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to just the key players, could constitute negligence." Failure to identify the appropriate custodians or to agree with your opponent as to which custodians will be searched could lead to expensive penalties and sanctions. Published: Tue, Jun 21, 2011

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