If you're looking for a quick way to become overwhelmed and discouraged, type "ediscovery" or "ediscovery resources" into Google.
You'll quickly be drowning in long-winded blog posts and whitepapers full of alphabet-soup acronyms, technical language, and legalese. Mainly, it's software or service providers whose primary intention is to increase their google search result rankings; helping prospects or clients is secondary.
I am not an attorney; I'm an MBA that was recruited into the eDiscovery industry to help scale a services business and launch a software business. The kicker? My first day was literally the day Indiana shut down due to COVID. So my industry training and onboarding consisted of reading articles and blog posts I found on Google, listening to podcasts, watching Youtube videos, downloading whitepapers, and consuming every digital resource I could find. I literally spent my first 30 days in this industry doing nothing other than consuming as much digital content as I could (I continue to read industry news or analysis at least 30 minutes/day). There are some really incredible resources out there, and I'm incredibly grateful to the many, many people in the industry who took time to speak with me over Teams and Zoom as I was learning.
My goal here is to compile a plain-language, no-nonsense resource that is accessible to business and IT leaders (who are key stakeholders in eDiscovery), as well as paralegals and attorneys who are not as well-versed in eDiscovery. To that end, you'll see a fair amount of bullet points and lists instead of long-winded paragraphs. If you're looking for traditional legal-style writing, you've come to the wrong place.
By no means is this an exhaustive resource. Dense textbooks have been written about this topic. But reading this will give you enough information to be conversant with practitioners, and can guide you to dig into other areas you may need to learn more about. This resource will be updated and expanded over time, so bookmark it and check back regularly. Comments, suggestions, and constructive criticism is welcome.
Enjoy!
Ryan Short
Indianapolis, IN
April 2021
Most commonly, eDiscovery is the process by which parties to litigation or a regulatory investigation determine what data is relevant (and must be produced to opposing counsel) and what information is irrelevant or protected by attorney-client privilege and does NOT need to be produced to opposing counsel.
While litigation and regulatory investigations predominate, other valuable use cases include:
You certainly don't need to be an expert, but you should understand some core concepts.
Discovery accounts for 70% of the cost of litigation, so it has the potential to blow a massive hole in your legal department's budget.
Plus, if your organization is proactive about data mapping and implements defensible data destruction plans, you can:
Look, I'm an MBA, not a JD, I'll be candid with you: disciplined data management and eDiscovery isn't sexy and it won't immediately generate massive returns for your shareholders, but it can absolutely become a very expensive nightmare if you aren't careful. This is especially true considering the Cambrian explosion of data creation (emails, tweets, Slack, Teams, Zoom, etc.).
Lucky you, at the nexus of business leaders who want to maximize revenue and the legal department who wants to minimize risk.
You are responsible with the architecture and maintenance of the policies set forth by the organization, including data preservation, destruction, and legal holds. The hardware and software controls are your responsibility, as is assisting the legal team when data collection is necessary. Your ability to troubleshoot and make proactive suggestions can help avoid catastrophe when it's too late to adjust course.
An attorney lacking the required competence for the eDiscovery issues in the case at issue has three options:
Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-193, California Bar
While the requirements and standards of eDiscovery may be relatively new to the legal profession, an attorney's core ethical duty of competence remains constant. The Federal Rules of Civil Procedure also contains extensive sections with respect to eDiscovery.
Globally, eDiscovery is projected to be a $25 billion per year industry by 2025. That revenue is a combination of software and services.
Image source: #GreatExpectations, Part V: Cloudy with a Chance of Digital Disruption (220), Jae Um, Legal Evolution.
Software performs functions such as collecting Electronically Stored Information (ESI) from disparate data sources, processing ESI (that is, converting file types so that all information can be reviewed in one platform), and document review.
Document review is typically the most expensive component of eDiscovery, so it was the most problem many early entrepreneurs aimed to solve. A few key players include: Everlaw, iCONECT, IPRO, Reveal, and Relativity.
Relativity is the 800 lb gorilla that has spawned an entire industry. Channel partners host the on-prem version of their software and commonly layer in professional services to complement the data hosting; developers customize the platform and license their technology through channel partners or directly to law firms, corporations, and government entities.
Examples of other software providers include categories like: Information Governance, Legal holds, and Translation.
As these companies have grown and taken on more investment capital, many of them have expanded to provide other services, but these generally represent the areas in which they first earned success.
Neither of these lists is exhaustive by any stretch of the imagination, but they are examples of names you'll hear time and again.
Private equity has made a huge push in eDiscovery for the last 3-4 years and consolidation is happening quickly. Previously, services were highly specialized and highly localized; now, there are a handful of companies growing quickly through merger & acquisition, with many attempting to build an end-to-end solution capable of handling entire matters internally.
Traditionally, discovery was part and parcel of a law firm's engagement. Young associates would spend time in corporate conference rooms or in a windowless warehouse by the airport poring through bankers boxes stuffed full of paper documents. As eDiscovery evolved in the 1990s through the 2010s, it fueled the rise of Alternative Legal Service Providers (ALSPs). While law firms initially viewed (and some still do) ALSPs as competitors, the market is shifting toward strategic alliances; ALSPs can handle the work that requires higher technical proficiency and commoditized, process-based operations, while law firms can focus on more strategic legal counsel.
ALSPs come in various flavors, including captive (typically founded by and associated with a large law firm; initially formed to serve practice groups, but sometimes perform business development directly with corporate law departments or government agencies) and independent ALSPs (independent businesses who service law firms, corporate legal teams, and government agencies).
Services arrangements may be project-specific or in more of a managed services model, and vendors perform include each phase of the EDRM, which you can read about below.
I won't bother with a list of names here because consolidation and rebranding is happening so quickly I'd be making updates almost every other day.
The billable hour model takes a lot of bullets, but if it has one thing going for it, it's easy to understand. Hourly rate multiplied by hours worked equals the invoice (I know I'm oversimplifying a bit here, but you get the drift).
eDiscovery economics are anything but straightforward.
First, there's frequently a distinction between the users of eDiscovery and those paying for the software and services. Anytime these parties are different, paranoia and confusion are easily sewn. After all, the pressure to be frugal diminishes when someone else is footing the bill, right?
To a certain degree, that's a truth embedded in human nature. However, many eDiscovery providers in both the software and services spaces are actually doing a pretty impressive job of connecting the value of their tool to the pricing model.
Common formats invoices may take include:
Often, these services are assessed to a law firm, who in turn passes them through to their client, usually without a markup. In other instances, corporate legal teams have direct relationships with providers and negotiate directly.
Insourcing some aspects of eDiscovery work has gained traction as among in-house teams as the sources of data has exploded (e.g. collaboration platforms like Teams, Zoom, Slack, etc.) and software has made it easier for them to create workflows, monitor progress, etc. But many of the more technically complex or laborious pieces (e.g. data collections and large review projects) are still outsourced to ALSPs.
The EDRM may refer to two things:
Image source: EDRM.net
The steps of the current EDRM Model are:
"Before a party can be sanctioned or held liable for failing to preserve evidence, the party must have been under a duty to preserve the evidence."
Reinbold v. Harris, 2000 U.S. Dist. LEXIS 16643,
*3-4 (S.D. Ind. Nov. 7, 2000)
So, when does the duty arise, what is counsel’s responsibility and what must be preserved? That question is best answered by another citation:
"Whenever litigation is reasonably anticipated, threatened or pending against an organization, that organization has a duty to undertake reasonable and good faith actions to preserve relevant and discoverable information. This duty arises at the point in time when litigation is reasonably anticipated."
See Fujitsu Ltd. v. Federal Express Corp.,
247 F.3d 423, 436 (2d Cir. 2001)
These triggers may take multiple forms, including:
Reasonably accessible ESI, including email, shared drives, communication and collaboration tools, etc. must be preserved. This requires a legal hold, which should exhibit these characteristics:
Initially, assess if there are any eDiscovery needs and issues. If so there are:
You'll notice this is essentially the steps of the EDRM, although there is some nuance. That's because the Federal Rules of Civil Procedure (FRCP) has some things to say about eDiscovery.
When the FRCP was first published in 1938, it's safe to say no one was concerned about identifying, collecting, processing, reviewing, and hosting data from cloud storage devices.
In 2006, ESI was first codified as a discoverable data source. But case law regarding spoliation varied across jurisdictions (was spoliation a result of negligence, or did it require bad faith?), so a "collect everything" mentality to avoid potentially responsive documents meant costs exploded astronomically.
In 2015, rules were revised to emphasize proportionality, encourage cooperation between adverse parties, and mitigate motions gamesmanship by avoiding penalties in most instances when parties have demonstrated reasonable decision making and important data can still be produced.
So, what does the FRCP actually say about eDiscovery? Here is a synopsis:
This is when parties come together to agree on topics including:
At the heart of this rule is its emphasis on proportionality. If there's a $100,000 dispute, making demands that will generate a $90,000 discovery bill probably won't be received well by the bench. The court makes its decision on the following factors:
This rule attempts to drive parties toward specific requests and objections and to avoid petty gamesmanship involving motions using boilerplate language like "this is overly broad and unduly burdensome" or "this is vague and ambiguous."
Why is it overly broad? What about the request is unduly burdensome? Is that position justified by the factors counsel weights in Rule 26(f)?
If a claim is vague or ambiguous, you don't file a motion, you pick up the phone and call opposing counsel.
This all drives back to Rule 1 of the FRCP, which is to "secure the just, speedy, and inexpensive determination of every action and proceeding."
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Mistakes are inevitable. eDiscovery is not about perfect, it is about defensibility.
Can you demonstrate that you took reasonable steps to govern data?
Did you implement a legal hold as soon as you anticipated - or were served with - litigation?
Were your Rule 34, 12, and 26 processes documented, and - where appropriate - agreed to by opposing counsel?
Bottom line? Be reasonable.
"Document review" is legacy language, a relic of a paper-based era when documents were physically marked or stacked into piles indicating their relevance or privilege. So how do you account for things like emojis, online collaboration tools, the IoT, and deepfakes during document review?
And in spite of incredible advances in review platforms to categorize emails and other written documents based on machine learning, how does that apply to image-based, audio-based, or network-based information?
Despite marketing hype, human review isn't disappearing anytime soon.
Roughly 8.5 billion texts are sent per day in the Unites States alone, equating to an average of 32 texts per person per day.
Approximately 70% of Americans who text use emojis, and more than 700 million emojis are used every day in Facebook posts.
The discovery issue is that forensic tools don't always capture emojis, and different platforms (e.g. Apple, Android) can display the exact same emoji in different ways.
Eric Goldman is attempting to track every U.S. court opinion in Westlaw and Lexis that references emojis. While no major substantive rulings on emojis have been issued yet, it's likely only a matter of time. Emojis during discovery were a hot topic for CLEs during the summer of 2020.
These web-based apps offer teams the ability to work remotely on the same platform by utilizing services such as instant messaging, to-do lists, file sharing, scheduling, etc. Examples include: Slack, Basecamp, Microsoft Teams, Google Docs, Trello, Monday.
Their ability to streamline workflows and improve productivity are legendary or debatable, depending on who you ask, but they do often lead to a dramatic reduction in email communication. And incidentally, people speak far more casually in these platforms than they do via email.
While they have certainly benefited teams and companies in a variety of ways, collaboration tools come with their own problems, some of which have legal consequences. For example:
Beyond that, these apps present discovery-specific challenges, including:
The Internet of Things is the concept of connecting any device with an On/Off switch to the Internet (and/or to each other).
Examples include: Smarts speakers (amazon Echo, Google Home), Wearables (Fitbit, Apple Watch, Garmin), Cell phones, Coffee makers, Washing machines, Headphones, Lamps.
While many consumers have fallen in love with the convenience, discovery counsel is aware of some challenges, including:
Deepfakes are defined as utilizing artificial intelligence to take an existing image, video, or audio file and replace them with fake or misleading content that is difficult, if not impossible, to detect.
This area of technology is still incredibly new (and terrifying). While I don't know enough to write extensively on the topic, some of the chief concerns are how to detect deepfakes, and the age-old concern that the means to produce them outpaces the means to detect them.
The negative societal impact of deepfakes far outstrips potential concerns about he said-she said in a courtroom; they have a true tendency to destabilize countries or regions. Stay tuned, and stay vigilant.
Court: U.S. District Court, Southern District of New York
Judge: Shira Scheindlin
Significance: landmark opinion set the foundation for balancing tests on recovering and reviewing ESI from backup tapes. Her seven factor test includes:
Court: U.S. District Court, District of Maryland
Judge: Paul Grimm
Significance: Defendant deemed to waive privilege because they:
Court: U.S. District Court, District of Maryland
Judge: Paul Grimm
Significance: court wrote that eDiscovery costs were increasing exponentially because of opposing counsel's failure to meet and agree on processes and standards. The FRCP would later be amended to emphasize the importance of the meet and confer phase.
Court: U.S. District Court, Southern District of New York
Judge: Shira Scheindlin
Significance: court ruled that counsel's failure to issue a defensible legal hold is gross negligence. Case resulted in monetary sanctions and adverse inference (that is, instructing the jury to assume lost evidence is bad for the party that failed to produce it). Judge Scheindlin noted that sanctions should be moderate and proportional to the case and offense.
Court: US. District Court, Southern District of Texas
Judge: Lee Rosenthal
Significance: split emerges among the federal bench in when sanctions are appropriate; in this case, court rules bad faith must be present. More than a decade later, this is still no consistent standard among the federal courts as to when and how sanctions should be applied.
Court: US. District Court, Southern District of New York
Judge: Andrew Peck
Significance: first ruling in which predictive coding is explicitly approved (and upheld upon appeal).
Here are some key terms you'll hear over and over. You can also download a copy here.