Nextpoint and Tom O’Connor published a new edition of eDiscovery for the Rest of Us, a strategic and tactical resource for legal teams navigating the modern ediscovery landscape. The 2024 version features new content, enhanced design, and practical checklists and discussions that address current regulations, rules, and challenges in the ediscovery world.

This excerpt from Chapter 5 discusses the eDiscovery Checklist Manifesto (EDCM), a tangible model for the ediscovery process that serves as the framework for Section Two of the book. Each chapter in Section Two covers a phase in the EDCM, featuring step-by-step workflows, comprehensive checklists, and real-world examples of ediscovery software. On Thursday, March 14th, the authors of the book will host a panel in partnership with EDRM to share deeper insights and tips on the ediscovery process.

The Checklist Manifesto

Written by Tom O’Connor

It is my firm belief that the best way to proceed in handling ediscovery matters is to have checklists for each step of the process. To that end, I took the initial EDRM chart and adapted it into a more complete workflow for all the steps I believe every legal professional should consider as they conduct litigation and ediscovery.

The result is what I call the eDiscovery Checklist Manifesto (EDCM). The EDCM diagram (see it here) represents a conceptual iterative process with the generally prevalent common steps that may occur in the course of ediscovery. One might repeat the same step numerous times, homing in on a more precise set of results. One might also cycle back to earlier steps, refining one’s approach as a better understanding of the data emerges or as the nature of the matter changes.

The diagram is intended as a basis for discussion and analysis, not as a prescription for the one and only right way to approach ediscovery. This chapter gives a general overview of the diagram and its process. A more detailed description of the actual workflow can be found in Section Two.

Your eDiscovery Workflow: Steps of the EDCM

• Identification: Identify and validate potentially relevant ESI sources.
• Preservation: Prevent potentially relevant data from being destroyed after litigation becomes apparent.
• Conference: Negotiate and establish ESI protocols at the Rule 26(f) Meet and Confer.
• Collection: Acquire potentially relevant ESI as defined in the identification phase.
• Processing: Electronically prepare ESI for review.
• Review: Search, examine, and assess processed ESI.
• Analysis: Examine, evaluate and interpret the results of your doc review.
• Production: Share ESI with opposing counsel using established formats.

Identification

In the EDRM process, the legal team uses the identification phase to develop and execute a plan to identify and validate potentially relevant ESI sources, including people and systems.

The scope of this data may be uncertain in the early phases of a legal dispute and may change as the litigation progresses. But learning the location of potentially discoverable data is necessary to issue an effective legal hold in the preservation stage.

Preservation

Keep in mind that the duty to preserve relevant data does not always flow from a litigation hold notice. It may arise under a common law obligation or a statute or regulation. The Committee Notes to FRCP 37(e) state, in part, “Many court decisions hold that potential litigants must preserve relevant information when litigation is reasonably foreseeable. Rule 37(e) is based on this common-law duty; it does not attempt to create a new duty to preserve.”

In the federal and most state courts, there is no tort cause of action for the intentional destruction of evidence after litigation has commenced. But since such destruction constitutes an abuse of the discovery process, it is subject to a broad range of sanctions. These sanctions are, however, intended to remedy discovery abuse, not to punish the offending party.

Also keep in mind that the duty to preserve is not the same as the duty to produce. There may be numerous exceptions to production, even for documents that should be preserved.

Conference

Negotiate the items required by Rule 26(f) and establish ESI protocols to frame the exchanges of ESI. These should include specifications on metadata, production formats, technology that will be used, and any limits on the scope of the data, such as date ranges or search terms.

Collection

Collection is the acquisition of potentially relevant ESI as defined in the identification phase. The process of collecting ESI will generally provide feedback to the identification function, which may then influence or even expand the scope of the ediscovery project.

Keep in mind that collection is NOT the same as preservation. Collection is the first step in the ultimate review process and should be done subject to some specific review goal. Collection processes may be in person or remote and typically account for roughly 13% of the entire cost of an ediscovery project.

Processing

After collection, it is often necessary to “process” data to prepare it for review. This involves machine-based manipulation of all the various data sets collected into a common format for use in a software review tool.

Review

Document review is a critical component in the ediscovery process and is used to identify, classify, categorize, and prepare for the production of a variety of document types. Most analyses of the ediscovery process agree that this is the most expensive step in that process and can often account for as much as 70% of the eventual spend. Given the prominence of this cost, this stage must be handled efficiently.

Analysis

In the original EDRM model, analysis was a standard function of the review process and was primarily manual. But as more sophisticated analytics tools have emerged, this phase has drawn more attention as an area to increase productivity.

Production

The production of ESI continues to present significant challenges in the discovery process. FRCP Rule 26(f) posits that the method and format of production shall be included in the discovery plan that is the result of the Meet and Confer.

Understanding eDiscovery

This framework is the foundation of ediscovery; each step includes additional workflows, technical concepts, and specific terminology that make up the overall ediscovery process. eDiscovery for the Rest of Us dives into each stage to form a comprehensive guide to ediscovery.