Included in the 45-page document are an ESI glossary and fourteen guidelines that, as stated in the introduction, are intended “to provide New York practitioners with practical, concise advice in managing electronic discovery.” However, we feel that practitioners from any state can benefit from reading this document. Here are some of the more salient points:

• Preserve as much ESI as possible. When in doubt on whether to save information or not, be conservative and keep your spectrum broad. The hassle of over-preservation is better than being sanctioned for spoliation.
• Create proactive programs to help contain the cost of eDiscovery. For example, implement document retention policies, hold and collection procedures, and user education.
• Become familiar with your client’s information technology as soon as litigation is anticipated. Counsel should give themselves an in-depth look into their client’s information technology, sources of ESI, etc.
• Prohibit destruction and monitor preservation efforts through written legal hold notices issued by counsel.
• Make sure that the cost and type of production demanded is not unreasonable — transforming native ESI can become pricey.

The “Best Practices” guide gives any eDiscovery professional an attractive, pragmatic guide to refer to for ESI solutions. The New York State Bar Association has also announced a plan to host a series of CLE events on its document’s guidelines – check their website for updates.

EDRM.net

Search Guide has a good page discussing the use of sampling , covering statistical details but also how it works in e-discovery data targeting specifically.   Many of the details can apply to sampling document review as well.

Appendix 2: Application of Sampling to E-Discovery Search Result Evaluation

Sedona Conference

The Sedona Principles contains information about sampling in the e-discovery process

The Sedona Principles : 2nd Edition

The following discusses different types of sampling and how they may be appropriately used for verifying the quality of e-discovery.

Commentary on Achieving Quality in the E-Discovery Process

DESI

Sampling in e-Discovery is an ongoing topic of discussion and implementation.  DESI IV (Discovery of Electronically Stored Information Workshop) in June 2011 sought to specifically address standards setting and benchmarking in e-discovery searches with several papers discussing the use of sampling in the litigation process.  You can find out more about the DESI IV workshop and review submitted papers at:

ICAIL 2011 DESI IV Workshop

Small companies complain that they do not have the resources for extensive preservation, and large companies lament yearly preservation costs in the millions with little of the data ever being produced. Thus small companies would prefer fewer requirements and large companies more requirements in order to cull down information without fearing sanctions.

One suggestion was to expand on Rule 26(f) which requires pre-trial e-discovery conferences, but some argue these discussions happen too late in the litigation cycle to be of any use. In addition, the committee considered three different amendments — yet no decisions were reached except that more research needs to be done.

The three amendment options are:
1) Create specific rules on how to preserve electronic evidence and to what extent.
2) Provide only a general preservation rule.
3) Provide a sanctions-based rule, no preservation rules.

Interestingly, judges present at the conference said that less than 1% of their cases had preservation conflicts. So would a specific rule cause more trouble than its worth, particularly for small companies and individuals?

But isn’t it time for better defined guidelines, anyway? Whether this takes the form of a specific rule or a required conference (e.g. Rule 26(f)), it is high time we all have an improved knowledge of e-discovery and proper preservation methods. A clearer understanding of e-discovery is the start to more prudent data preservation, after all.

Thanks to Fulbright & Jaworski for the meeting recap.

Legal holds are also being debated on many levels. There are varying opinions on whether the notice can be oral or must be written and if the promptness of issue affects data preservation. Perhaps the most interesting questions being posed are those regarding hold protocol for social media. For example, should traditional privacy rights apply when collecting data from social media sources? So far most courts have held that they do not.

Gibson Dunn also brought up one of the year’s most interesting cases: National Day Laborer Organization Network v. U.S. Immigration & Customs Enforcement Agency. In response to a Freedom of Information Act (FOIA), Judge Scheindlin stated the government was obligated to preserve and produce metadata. Four months later she reneged on her decision. Gibson Dunn speculates that, despite Judge Scheindlin’s change of mind, when dealing with ESI both courts and litigants will reference her rulings on metadata’s importance in all productions.

In conclusion, the Mid-Year Update says that it is too early to tell whether there will be much conclusive e-discovery reform in 2011, but today the Civil Rules Advisory Committee meets in Dallas to discuss potential changes. We will keep you posted.

As could be anticipated, the plaintiff filed a motion seeking an order finding that six documents produced by the defendant were not protected from disclosure by the attorney-client privilege. The court did take into account the Sixth Circuit’s three-step inquiry on whether produced documents may retroactively be considered as privileged.

1. Is the document privileged?
2. If it is, was the disclosure inadvertent?
3. Even if the privileged document was inadvertently produced, the court can still determine if the privilege was waived.

The court also applied Federal Rule of Evidence 502 which states that privilege will not be waived if:

1. The disclosure is inadvertent
2. Proper measures were taken to prevent disclosure
3. The holder promptly addressed the error

In its memorandum, the court concluded that the defendant did produce privileged documents inadvertently, but that these privileged rights should be waived because there was no proof that the production had been thoroughly reviewed before submission.

The defendant tried to blame the e-discovery vendor by claiming they thought documents marked as privileged should be understood to be withheld from production. The court didn’t buy this argument noting that it had “little confidence in the reasonableness of the [defendant’s] precautions.”

The vendor was spared in this particular instance yet there are myriad scenarios that are equally plausible and could result in a different outcome. Whatever future outcomes may be, it is important that counsel has an understanding of the e-discovery process.

Although it is important for counsel to understand relevant e-discovery issues and thoroughly review their work product, service providers can and should be a security blanket when possible. For example if tags can be deemed as privileged and the service provider has a protocol in place  to report this  to counsel at the time of production, there is a level of service and value provided to counsel.

For more information about the advantages of PDF over TIFF, see the white paper.

We’re frankly surprised that no one had written on this topic before, and we will have more to say on it in the future …

OCR, while perhaps not absolutely necessary to litigation, is a tool that greatly decreases the time and effort counsel must invest in searching and examining documents. Presumably, each party would perform the OCR process in a cost-effective manner to minimize their costs. Requiring the parties to incur this cost, when the OCR process is likely to streamline the discovery process and reduce the chance that either side will employ tactics designed to hide relevant information in a mountain of difficult-to-search documents is neither unreasonable nor burdensome.

In other words: Yep, it’s worth every penny.