By Chuck Kellner, SVP, Advisory and Engineering
How would you handle these? How would you handle your work to prevent these from arising?
1. HOW DO I SUPPORT AGREEMENT TO THE RIGHT CUSTODIANS? The more we interview, the more names we get. Now we are negotiating the custodian list. My best shot to contain costs is to offer just the most relevant. Are my interview summaries good enough? Do I have hard data telling me in which custodians the most important ESI is grouped?
2. DO I HAVE TO PRESERVE DUPLICATE SOURCES? After much handwringing we sent out a litigation hold. Now I have from the IT people: (1) “My Documents” are “mirrored” to network folders. (2) Email is replicated to the Exchange server. Do I need to preserve the desktop and server versions? (3) The engineers have CADs and TIFFs and JPEGs of every component at issue. Will I need to preserve and hash everything, only to de-duplicate most of it?
3. WILL MY LOW-TECH APPROACH BE ENOUGH? This is a small case. I sat with my client and his IT contractor. My client showed me where his files and emails are. We grouped relevant emails and exported little PST files. We ZIPped up other important files which, the IT guy said, would preserve “metadata”. We picked through my client’s Cloud backup. We put everything on a thumb drive for my vendor to give me back a Concordance file I can use to review and produce. I have good notes. Do I have enough?
4. HOW FAR DO I HAVE TO LOOK? The clients have desktop and laptop computers, they have personal network shares, an Exchange server, an email archiving system, and vast storage of departmental shares containing terabytes of data. Everyone has “access” to almost everything. But most people seem actually to put important stuff where they say they do. We are fighting internally now about where we have to look and how much we have to preserve and search.
5. SEARCH TERMS: HOW MUCH TESTING? We aren’t using any new whiz-bang on this case, just search terms. We have gone back and forth with the other side about them. We tested, reviewed reports, revised, sampled, and tested again, even testing “non-hits”. We are getting to diminishing returns. We aren’t finding much more. Can we be done now?
6. THE OTHER SIDE IS COMPLAINING THAT MY PRODUCTION IS DEFICIENT: We agreed on search terms and custodians. Admittedly, I have like 50 responsive emails from some custodians and maybe 200 from others. I don’t know why the discrepancies or if there was any error. Did custodians keep things differently pre-litigation? Did some delete injudiciously later? Did reviewers on different custodians apply varying notions of responsiveness?
7. MY PROCESS IS DOCUMENTED, REASONABLE, DEFENSIBLE, REPEATABLE, AND, IN FACT, REPEATED. RIGHT? We bought and installed ESI collection and ECA tools. We have IT staff dedicated and trained in how to use them. We have a procedures manual and we stick to it, doing the same things the same way to every custodian’s data whenever there is a litigation hold. This is all we need, right?
8. YES, WE HAVE BACKUP TAPES. SO WHAT? ALL THE DATA WE NEED IS LIVE. It took years to clean up our backup tapes. Now we keep only a select few that go back 90 days for disaster recovery. Yes, we probably have relevant email on them, but so what? It is duplicative of what we already have on desktops and servers. We issued a timely litigation hold. I am not going to offer a review or even a test of backup tapes, and I am not going to suspend my DR protocol.
9. WE TRAINED OUR REVIEWERS ABOUT THE CASE. WE DID FIRST, SECOND, AND QC PASS REVIEW. WHAT MORE DO YOU WANT? I know about quality control and statistical sampling. But unless a court tells me that that’s what is required, I can’t spend more on review. We put in a lot of hours, and I get very good results from my top people doing QC review.
10. MY OPPONENT SUGGESTED A PAINLESS FORM OF ESI PRODUCTION. NOW I’M STUCK. We agreed our clients could make their own PDFs and that we could exchange these. We didn’t talk about sources or metadata. Now he’s complaining about every single document I try to use because they don’t look the same as the client’s email. How do I prove that the content is real and nevertheless the same?
Sorry, there is no answer key – YET. We will outline some common approaches in Part II. In case of emergency, please call or write.