Electronic Discovery Institute Course - Class 20 - Litigation Data Management and Policies

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on April 8, 2018. Go to https://www.lawinstitute.org/ to sign up for it.

This course is taught by Scott Cohen, the head of eDiscovery support services for Winston & Strawn LLP; Marla Crawford, a Goldman Sachs general counsel responsible for electronic discovery; and Julie Heller, AIG's global head of eDiscovery Programs.

What is Litigation Data Management?

Litigation data management is a component of information governance. It's making sure data that is subject to discovery is available and is protected from alteration or destruction. Companies should have in place procedures controlling who has access to data. A company should be aware of what both law firms and their service providers do with its data.

Companies' policies should be in place before litigation arises. There is a risk that policies will not be followed in some business units. Inconsistency will lead to questions about what other actions may not have been performed correctly. The risk of sanctions will drive the monitoring data management policies.

Litigation Data Policies

Practices should be consistent and repeatable. Cost effectiveness is also an important concern.

Data Sources & Formats

A key initial focus should be on what information is relevant to a legal dispute. Email may be collected from a live exchange server or from archives. User content may exist on shared drives or individual hard drives. Producing an entire database may be overkill. A snapshot or partial download may be sufficient.

Outside counsel must get a good idea of the data types used by its clients. Audio, social media, and structured data are all potential sources for discovery. Voice recordings are an important source of information for many financially regulated businesses.

Metadata may be visible or invisible to the user of electronic files. It can be used to determine who had possession of some types of data.

Paper records are still an important source of information. Best practices govern the collection of paper records and help to plan for the scanning of documents - which can be very time consuming. Some electronic discovery vendors will decline to process paper records.

ESI Protocol

ESI protocols should be drafted at the beginning of a litigation matter. The parties should reach an agreement on how to deal with the review and production of electronically stored information. This road map will cut down on disputes about electronic discovery. The court may help resolve disputes about the ESI protocol. A key question to consider is whether or not de-duplication across custodian sets should take place.

One of the key components of the protocol is to determine which custodians data may be collected from. It is not necessary to 'boil the ocean' and collection data from an excessive number of custodians. The parties may give access to productions in read only databases.

Working With Outside Counsel

Vendor management processes should be communicated by in-house counsel to outside counsel. A robust data management plan will make the task of outside counsel easier. Outside counsel should help decide the scope of the collection.

Vendor Management

Every corporation should structure its vendor management policies based on its appetite for risk. Companies with serial type litigation may try to save costs by performing electronic discovery in-house. For work that cannot be done in-house, a list of approved vendors should be prepared.

The basics of a vendor management program include pricing, the terms of an engagement, and how to monitor compliance with service objectives.

From collection through production, there are several steps to take.

1. Determine the scope of the project.

2. Understand how vendors accomplish certain tasks.

3. Have a closure meeting to determine what worked and what didn't.

There must be cooperation between the stakeholders in order to have an effective program.

Master Services Agreement

Master services agreements will allow for the re-negotiation of terms to be avoided for new matters. The agreements should address the security of data and what happens to data after a case is concluded.

Metrics

The time frame, cost, conformance with objectives, and involved personnel are metrics which should be continuously tracked. There are lots of different categories of information which a company should request from a vendor. The metrics can be used for trend analysis.

The more granular the available metrics, the easier it is prove a vendor relationship is working.