How to Defensibly Limit Data During Discovery
August 28, 2019
Technology has revolutionized, among other things, the way people conduct business, store information and communicate with others. And, despite the many efficiencies and benefits of technology, a downside of this “revolution” is the creation of countless files that may later be subject to review and potential production during litigation /investigation proceedings. Indeed, even relatively small cases routinely involve the collection of tens and hundreds of thousands of documents and files. This in turn makes for a costly, and potentially complicated discovery process. And so, it is critically important to identify early in the litigation life-cycle, defensible ways to cull this data and isolate relevant material without sacrificing accuracy.
Although many attorneys have different approaches to electronic discovery, I believe certain steps should be taken in every litigation involving ESI (which, let’s face it, is every litigation in today’s E-age). In my opinion, among the most effective tools for reducing e-data is early case assessment efforts to analyze the data collected. More specifically, after the data collection is complete, one should review a file extension report with an eye toward eliminating file types that are not relevant. Another report that can provide actionable insight for counsel is a search term report. Indeed, this report can illustrate what search “hits” are likely to yield documents responsive to the litigation/investigation and which terms are more likely “misses.” Revising search terms (often multiple times) based upon this report is highly recommended and a sound way to cull data.
Another step that should be implemented to minimize the data universe is deduplication (either within or across custodian). What this means is that identical duplicates of documents (or near duplicates should you opt for same) will be eliminated from the data set. If you opt to deduplicate within a custodian, then any identical duplicate in an individual’s data will be eliminated and only one copy of the document available for review and production. If you opt to de-duplicate across custodians, then, for example, only one copy of the email that appeared in three different custodians’ email, will be available for review and production. However, in the latter situation, it will be disclosed through the meta-data that the document existed in the other two custodians’ mailboxes.
A final tool to implement in any review is email threading. Threading allows for only the most inclusive versions of email documents to be included in the review whereby reducing the attorney hours required to review documents. For example, the attorney will review only the most inclusive email chain of ten, rather than each of the ten chains leading up to the most inclusive version.
There are ample other opportunities to introduce additional efficiencies into the review (clustering, bulk-coding, etc., to name a few), but it is advisable to work with an attorney or vendor to develop a defensible methodology and workflow to achieve the most efficient and effective discovery outcome for the client.
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