How to run a well-documented, defensible eDiscovery process

Jean E. Kordenbrock
BridgeTower Media Newswires

It is commonplace in almost every litigation matter today, but it still strikes fear in the minds of many lawyers: electronic discovery.

From collecting data to protecting it in a secure environment, the federal and Michigan rules require lawyers to competently gather the relevant information and defend the process used to collect it.

The reasons many lawyers distress over eDiscovery are twofold: (1) the process can be complex and (2) a flawed process can lead to serious, negative consequences — including adverse rulings and sanctions.

The good news is that, with greater understanding and careful planning, every litigator can handle eDiscovery.

Michigan eDiscovery rules

In 2015, the Federal Rules of Civil Procedure were updated to create a modern framework for addressing eDiscovery. In 2020, Michigan followed suit, with significant updates to its Michigan Court Rules.

Michigan Court Rule 2.401 sets forth, among other things, a number of processes and protocols related to eDiscovery that lawyers — and their clients — must adhere to.

For example, Rule 2.401(B) provides that one of the issues that should be addressed at an early scheduling conference is the “disclosure, discovery, preservation, and claims of privilege” of electronically stored information, or “ESI,” which Rule 2.310 defines as “electronically stored information, regardless of format, system, or properties.” ESI is included in the definition of “documents,” which attorneys have a duty to preserve.

Pursuant to Rule 2.401(J)(1), “where a case is reasonably like to include the discovery of ESI,” the parties may agree to, the court may order, or a party may file a motion requesting an “ESI Conference,” at which the parties must consider a host of ESI-related issues. These include but are not limited to:

• Issues relating to the preservation of discoverable information, including adoption of a preservation plan for potentially relevant ESI

• Identification of potentially relevant types, categories, and time frames of ESI

• Identification of potentially relevant sources of ESI and whether the ESI is reasonably accessible

• Disclosure of the manner in which ESI is maintained

• The parties’ ESI discovery plan must be presented to the court within 14 days of the conference.

Failure to abide by these and other rules may result in sanctions.

Practical tips

Once a lawyer learns of an imminent or actual legal claim against a client, it is critical that eDiscovery becomes an immediate area of focus. The process of determining whether the appropriate steps were taken to identify ESI in litigation is evaluated using a standard of reasonableness.

The first step in the eDiscovery process involves the legal duty to preserve potentially relevant ESI. This includes the identification, preservation and collection of relevant information.

The identification of ESI begins with gaining an understanding of what current information policies and procedures the client currently has in place. To the extent the client has an information technology department in place, meeting with the relevant IT professionals can be a good way to gain a holistic understanding of the client’s past and current information governance practices.

Some of the questions that should be immediately addressed include:

• What are the client’s document management systems?

• What hardware and software applications are in use?

• What is the current data management strategy?

How do employees save, retrieve and share documents?

• What backup procedures are in place?

During the process of identifying ESI, it’s important to keep in mind the scope and breadth of the ways clients create, store and share information in 2021. Email, text messaging, instant message software such as Slack, chat functions in Zoom and Teams, social media applications, file servers, cloud-based applications, mobile devices ... the list goes on. While not every source of ESI will contain relevant information, it is nonetheless incumbent upon the lawyer to identify all sources in order to make that determination.

Once sources are identified, a data map should be created, which is a comprehensive inventory of an organization’s data which could be potentially relevant to a legal investigation. A data map typically includes what types of data the company generates, uses and stores; where the data is stored; who is in charge of the data; and whether and when it should be archived or deleted.

Another important aspect of creating a defensible process is determining the key people involved in events giving rise to the dispute who may be custodians of information. This requires analysis of who the custodians are, what the reporting structure is within an organization, who has access to what data, and what systems and applications custodians use.

As you can see from this merely cursory review of the many steps involved in the identification, preservation and collection of ESI, there is a lot to take into account. And the risks of failing to take the appropriate action are real and significant. At worst, lawyers can expose themselves and their clients to sanctions or adverse rulings in litigation. At best — and this is still bad — the eDiscovery process may have to be redone, leading to substantial additional costs for clients.

A lawyer who is handling a case involving eDiscovery has a few different options. First is trying to go it alone, which is risky if they don’t have the requisite experience and expertise. Second is hiring an outside eDiscovery vendor, which can be helpful but still poses risks because the lawyer may have no way to evaluate the appropriateness of the process. A third option is to team up with another outside lawyer who specializes in eDiscovery who can help ensure that the process is defensible.

Regardless of the approach, one thing is certain: in our increasingly digital and remote-working world, eDiscovery will continue to gain more significance — and become more complex — in litigation.

Knowing the court rules is an important first step. Creating and running a defensible eDiscovery process requires a deeper understanding and expertise born of experience.

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Jean E. Kordenbrock, an experienced legal professional and entrepreneur, leads the eDiscovery practice group at Fraser Trebilcock.