Documenting E-Discovery Workflows: Tips for Promoting Long-Term Defensibility
In this article for Bloomberg Law, of counsel Amber Whipkey discusses the Electronic Discovery Reference Model (EDRM) lifecycle and things to consider when organizing and documenting a review workflow.
Documenting discovery processes is an important part of effective representation during litigation. It can be hard to remember why certain search terms were used, or which custodian used a unique, proprietary database with structured data, or how certain hard copy materials were reviewed. These and other numerous questions about the discovery process often arise as litigations and investigations progress. In fact, it's not uncommon for long-dormant issues to suddenly reignite after months or years of inaction. Whether discovery has been stayed, or prior discovery efforts were undertaken by separate counsel, it is not uncommon for refreshers about early discovery strategy to be not only useful, but crucial.
To be able to answer these questions, taking steps to document the daily decision-making process during e-discovery is critical. The solution is simple in theory, but more difficult to implement in practice—especially in the rush to meet deadlines: keep dependable and organized records tracking strategic discovery decisions—such as data identification, preservation, and collection—and strategic discovery execution—such as document and data processing, review, and production—through all phases of the e-discovery lifecycle.
Beyond buttressing your ability to understand the discovery history in a case, there are many other scenarios in which keeping discovery process documentation will prove beneficial. Comprehensively documenting these decisions and processes will enable you—or a future team member—to respond to future inquiries. One example is if an auditor requests an investigative memo detailing custodians subject to e-discovery procedures, data collected, and methodology of review. Creating documents with the requisite level of detail for such a process is typically very difficult as an after-the-fact exercise. Detailed documentation of the steps taken during discovery concurrent with those acts provide the ability to answer questions that arise now or in the future, both defensibly and with specificity. It also minimizes inefficiencies of resources.
Documentation of strategic discovery decisions and execution requires a certain level of dedication in the beginning, but there are ways to implement this process without causing pain points in each stage of discovery. Below are some points to consider when organizing and documenting a review workflow. Not all of these are right for every case, it depends on the complexity, timeline, and other factors. But keeping these points in mind at the start of each matter will help frame the discussion and process from the start. While these points are not exhaustive, they can be a good reference point in your process.
Establish Overall Organization
This effort falls on all team members to support. In a shared network, set up a working folder accessible to all team members that contains all discovery documentation in subfolders for ease of reference and access at the outset of a matter. It can be used as a repository for tracking documents and other information that may be helpful for current and future team members. Periodic checks to ensure these documents are kept current are recommended.
In the document review database, a dedicated administrative coding layout can be set up to easily reference a document's collection, review and production status data points while viewing the document. Data points that can be tracked in fields viewable in this administrative layout include collection sources, review sets, exclusion criteria, and production status. In addition, these fields and tags can be easily filtered or searched. Another benefit of capturing information in database fields is the potential for analysis or reporting via pivots or dashboards. Using these fields and custom coding layout can alleviate the need to cross reference saved searches, search through prior emails, or look for other information outside of a document.
Having this information on the face of a document to answer questions regarding how a document came into the workspace, why it was or was not reviewed, and any exclusions from review or production can be extremely helpful. For example, when investigating why a document has not been produced, it is much easier to reference a document field in the database to see that the document was part of a targeted client collection upload instead of part of an email search term promotion for review.
Keep Detailed Records
As discovery unfolds, be sure to use your working folder and keep detailed records about the following.
Data Identification
A key part of data identification is working with the client to locate potential sources of Electronically Stored Information (ESI), in addition to other data sources. At this stage, note things like discussion dates, the stakeholders involved, and any determinations regarding the scope of or exclusions to the sources of data in your recordkeeping. It is also helpful to summarize data sources discussed during custodial interviews in a tracking document to easily note the data sources for each individual. This can be leveraged to confirm completeness of the collections later in the process.
Preservation
Save legal preservation notices and the list of recipients in a dedicated folder, along with any updates to the hold or list of recipients. Information such as date sent, date the recipient acknowledged the hold, and other notes are extremely helpful. This information may be part of the preservations software used by your client, but it may be helpful to have an export of the information for outside counsel's reference and to ensure the information is always available in the event the system is ever archived. It is also helpful to look back to the custodial data identification summary document discussed above to ensure all data sources are covered in the legal hold language.
Collection
Collection documentation starts with listing the data sources identified during custodial interviews and any additional sources identified by the client. It is important to note any decisions regarding specific data collection and the reasoning behind that decision, especially if the choice is not to collect the material. Other data points to include are the criteria applied at the collection source, such as date range or specific ESI type or if any search at source terms were used. This is a critical point of information if supplemental requests are received and questions arise regarding leveraging data already collected to respond.
Noting deviations or collection gaps is also helpful. If a custodian indicates during the collection interview that they used personal phones for relevant text messaging but no longer have access to the device, document it, along with whether any other collection methods are available for the data. If any client retention policies impacted the data available for collection, document that as well. If emails are only kept for 30 days in the regular course of business before automatic deletion, document the policy and its impact on collections.
Processing
Continuing to document the data throughout processing is helpful. Ensure you have visibility into discussions between the client and vendor regarding data deliveries and any potential gaps or processing issues. It is helpful to save processing logs from your eDiscovery vendor in a dedicated folder and ensure that a team member is reviewing any exception reporting to identify any pervasive issues as soon as possible in the process.
Review
Memorialize the criteria for identifying which documents must be reviewed, along with a corresponding Review Set tag in the administrative coding layout. In addition, note any document groups excluded from review. The review set tags will define a review set and provide the foundation for audit scoping. Outside of the database, maintaining documentation detailing the coding fields, coding layouts, review protocols and decision logs related to each phase of the review will help respond to inquiries regarding scope and criteria, even after a database is inaccessible. It is also helpful to closely track the revisions to search terms and culling parameters. Multiple and quickly implemented changes to these conditions during scoping of the document review can result in confusion later on.
Production
In your production documentation, include data points such as production recipients, document count, criteria for production, and a summary of the contents. Noting the password in the log will also help in the event of reproductions to later-joining parties or recipient access issues. A production status field in the administrative layout is useful to reference how a document was produced without needing to put eyes on the production images. This field is useful to leverage for analysis of documents produced such as privilege slip sheet, PI redacted, privilege redacted, natively redacted, or produced natively—to list a few—which can be especially useful when producing different versions to multiple parties.
Conduct Review Audit
On occasion throughout the review process, conduct audits to ensure all documents in a review set have undergone appropriate review, production, or privilege logging. Searches can be set up to provide a waterfall of documents subject to review, less identified exclusion sets and, ultimately a final tally for review close out.
Beginning with the universe of documents identified for review, documents groups are identified and excluded—e.g., non-inclusive threads, document sets later identified as no longer part of the review set, produced documents, privileged families, etc. The final set of documents are those left to produce, with the end goal of zero results. Performing this exercise throughout the course of the review lifecycle will also help avoid any last-minute fire drills during the review's wrap up. This process also identifies documents for privilege logging.
Engage Departing Colleagues
When team members leave a matter, transitioning their institutional knowledge is a key step to avoid information gaps in the future. Asking the team member what documentation they have that is unique to their role is a good start. Also request that they review the repository and update any documents prior to departure. Finally, ask if they can provide a summary of their workstreams to ensure another current team member is able to cover and, if not, can be brought up to speed before the departure.
Conclusion
Although it may seem daunting at first to track the discovery process through all phases of the e-discovery lifecycle, it will pay back in dividends throughout the course of the matter.