Everything I ever wanted to know about eDiscovery
Every now and then the stars align and you find yourself in the right place at the right time. All I did was raise my hand; the electronic one sometimes referred to as email, in response to a query looking for folks with the desire to volunteer time and effort to create something intended to be shared with others for the purpose of education and awareness. The Task Force, as we were called, was made up of participants of the Law Firm Information Governance Symposium (“LFIGS”). This was the beginning of a journey that would teach me everything about eDiscovery I ever wanted to know. The end of this journey would result in the white paper eDiscovery and Information Governance Task Force Report – Applying Information Governance to Law Firm eDiscovery Data.
For the sake of time, and making this a shorter paper than it could be, let’s just agree that client eDiscovery data should be handled differently than firm work product or administrative data. Then, if we can also agree that the stakeholders for eDiscovery range far beyond just the Litigation Support staff, we can jump right into the heart of the matter, no pun intended.
Historically, Litigation Support has always worked as an independent team within the Litigation Practice Area; making an alliance with Records & Information Management ("RIM") difficult to envision. However, as Best Practices have been defined for Information Governance ("IG"), the partnership between the Litigation Support, RIM, and other areas of compliance has become clear.
What did I learn?
Every stakeholder in the process views the management of eDiscovery from the standpoint of the role they play and what they need from the data collection. Armed with a greater understanding of each role I am able to fully appreciate the big picture.
Have you ever stopped to think about all the ways eDiscovery data enters the firm? I am personally familiar with eDiscovery that is part of a matter transferring in from another firm. This data is easy to identify, track chain of custody and manage as part of the matter file, at least until the Litigation Support Department turns that original data set into various different repositories.
What about eDiscovery data that enters the firm directly from the lawyer on the case, or via FTP directly to the Litigation Support staff. What are the Best Practices for identifying, securing and tracking chain of custody then? I've worked at 4 different law firms, and while some say litigation is litigation, every legal team works a little differently and their requirements for each individual litigation may vary.
This experience taught me how to best manage the original source media, collected data, processed data, reviewed data and produced data; this is no walk in the park my friends. Much to my surprise and alarm there can be so many copies of the data, from various stages in the process, that the firm is obligated to know about and keep track of, not to mention those folks that want their own personalized copy of the data, or want a DVD maintained in the physical file.
It's not enough to know that there are multiple copies of the data in various databases if you aren't managing them throughout their lifecycle. When was the last time your firm actively managed the disposition of eDiscovery data at the end of matter? Well, the eDiscovery and Information Governance Task Force Report – Applying Information Governance to Law Firm eDiscovery Data provides answers that will help you avoid the typical project to try and clear up space on the server for the next big case by making backups of unidentified data with no plan on what to do with it, etc. There is an entire section on Data Retention and Disposition that is full of Best Practices.
Finally I was reminded that it's not enough to manage and secure the data inside the firm; knowing how to work with third party vendors that might be needed to assist in the processing and management of the data is key.
It's important to remember that Information Governance is about all of the information in the firm, and applying consistent rules, policy and procedure across the organization; that includes eDiscovery data.