10 Tips for Creating a Good Electronic Discovery Plan

The ever-changing technology landscape has increased the volume, complexity, and costs of discovery in litigation. Many clients who find themselves in litigation, however, are not as familiar with the rules, practices, and protocols related to electronic discovery. The purpose of this blog is to help potential litigants understand the process of electronic discovery and how to work with their counsel to reduce the associated time and costs.

Courts typically expect parties to agree on practical electronic discovery protocols such as search methods, custodians, search terms, privilege screens, and/or production formats, to avoid unnecessary judicial involvement. But before the parties can meaningfully confer on these issues, it’s important for the client to meet with their counsel to develop an internal plan for identification, collection, review, and production of electronically stored information (ESI).

Here are 10 tips for creating an electronic discovery plan that is efficient and may be acceptable to all parties—the client, your attorneys, the opposing party, and the court:

1. Appoint a contact person. The client should appoint a contact person who can answer any questions from counsel related to key players, timeline, and issues in the case.

2. Develop a statement of work. The statement of work should lay out the basic information for electronic discovery in the case, including:

• Names and email addresses of key players from the client who are familiar with or were involved in the conduct at issue in the case.
• The date range of the issues in the case to determine how far back the client should go for preservation and to search.
• Identify potential devices with stored ESI on them, i.e., computers, work phones, personal phones, etc., and the types of hardware for each device, i.e., Mac or Windows, type of mobile device, etc.
• Identify potential sources of ESI on devices, i.e., email, text messages, WhatsApp, social media posts, etc.

3. Work with your attorney to draft a legal hold notice to circulate internally. A legal hold notice is sent by the client to key players in the organization telling them to preserve certain ESI. The client and attorney should discuss and draft the legal hold notice instructing key players how to change settings of any devices that automatically destroy records and to not destroy any records relevant to the particular issues in the case.

4. Decide on a search and collection strategy. To begin the ESI process, there must be a trustworthy procedure in place to ensure that all relevant ESI is searched for and collected. There are multiple options for how search and collection can take place—you can engage a third-party vendor, use your in-house IT department, use your law firm’s IT department, or allow key players to personally perform the search and self-collection. When key players execute the search and collection process themselves, however, they should have detailed directions from an attorney and work closely with the attorney during the entire process. You should also be mindful that, while hiring a third-party vendor to collect the data is a good practice, it can be a lengthy process.

5. Select a review strategy. Once the ESI is collected, the data must be reviewed for accuracy and responsiveness. Prior to review, you can apply filters and/or index and cull the ESI, which helps to reduce the amount of data that is collected but is perhaps not relevant, does not involve a key player, or is outside the date range needed. Then there are various tools to help with the review process that the client and counsel should discuss, including technology assisted review (TAR), predictive coding, and language analytics. You should also decide who will be performing the review.

6. Develop a quality control process. A quality control process is very important in making sure that an electronic discovery plan is defensible to the opposing party and the court. You and your counsel should work together to draft a quality control checklist that will be applied after both the search and collection process and the review process.

7. Determine how production will occur. ESI can be produced in many forms such as PDF, native format, TIFF images, and a particular load file type. The circumstances of the case and conferrals with the opposing party will likely help dictate the format of ESI production. The electronic discovery plan should also address whether and how the production will be protected, and how a privilege/redaction log will be maintained. As production occurs, it is usually advisable to have counsel maintain a production log to keep track of exactly what data was produced and when.

8. Set a budget. When developing an electronic discovery plan, you should address with counsel the anticipated costs of ESI search, collection, review, and production. Setting a budget for these costs will help to set expectations early and to address issues that may arise throughout the process.

9. Identify other sources of ESI. The electronic discovery plan should list key players from the opposing party who may have ESI relevant to the issues in the case and identify what kind of data they may have. Likewise, the plan should list any third parties who might have relevant ESI (and any key players if the third party is an entity) and attempt to identify what kind of data may be in their possession.

10. Counsel should send a preservation letter to the opposing party. Similar to a legal hold notice, you should discuss a preservation letter with your counsel to draft and send to the opposing party and any third parties identified as having relevant ESI. This letter will notify the opposing party of their obligations in preserving ESI relevant to particular issues in the case.

A good discovery plan will incorporate the above tips so that the electronic discovery process is manageable for the client and defensible to the opposing party and the court. Once the plan is in place, it can lessen the burdens and costs of electronic discovery, more so if the parties and their attorneys are willing to cooperate in negotiating how electronic discovery will be handled in the case.