E-Discovery Traps: How to Spot Them—and Avoid Them

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Responding to an e-discovery request without proper counsel and expertise can have a major financial impact and delay proceedings. Here's how to avoid blunders.

It starts with building a game plan for how your organization will manage legal hold, data collection and legal review. Today’s software tools, such as kCura’s Relativity Legal Hold, are nimble enough to provide legal review with a built-in module for legal hold.

Next, forensic providers should be able to collect and cull data in place to minimize processing and legal review. Bringing in a reliable provider to help when an e-discovery incident occurs is not a failure. The vetting process, though, should be done well ahead of time rather than as a reaction to litigation.

The Do-It-Yourself Approach

Companies that try to self-collect data internally without the proper forensic tools as a cost-saving measurement may expose themselves to some risks. The most prominent issue is having an IT person perform the data collection. That person may in turn need to be a 30(b)(6) witness and testify in a court of law about how the data was collected.

In addition, self-collection opens the company up to what is known as good faith omission by inadvertence or bad faith omission by fraud. This is when an organization either inadvertently overlooks a data source or omits data by making a conscious effort to keep it out of the collection because it may be considered damaging to the organization.

Another pitfall of the do-it-yourself approach is metadata preservation. Metadata is essentially a document’s fingerprint or DNA, which provides authorship, date and time created among other critical information. A simple copy or file transfer by internal corporate IT will not always preserve metadata, and many times this type of information can be critical to the attorneys and to the merits of the case.

Organizations often try to tackle too much, with too little expertise, causing decisions to be made in a vacuum. It is critical to avoid this at all costs, unless you would like to spend a lot more money on discovery.

Don’t go it alone. Prior to litigation, put together a response team of key stakeholders, knowledgeable IT personnel, in-house and external counsel, and a reputable digital forensic and e-discovery service provider. Utilizing the experience and knowledge of a third-party e-discovery provider who can assist you in data mapping, data collection, processing and legal review will offer savings on existing and future discovery-related matters.

Jason Glass is vice president of client services at HaystackID, which he cofounded with Kevin Glass. He is a subject matter expert in complex document management and has implemented document management and electronically stored information standards in several vertical markets. Glass has created document management strategies for many Fortune 500 corporations and has also worked in a high-level litigation support capacity.


This article was originally published on 2015-08-17
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