Appraising an eDiscovery Case

The Four Most Important Things You Need To Know

By Rich Finkelman

The Beach Boys song, “Wouldn’t it be nice?” is a good way to think about the topic of appraising an eDiscovery case. Wouldn’t it be nice if you had all the information you needed to do an evaluation that gave you the anticipated costs, efforts and timelines required to complete a project before it was well underway? Wouldn’t it be nice if there was a roadmap that you could follow that allowed for course adjustments in a timely manner? And wouldn’t it be nice if the output of your appraisal gave you a detailed and executable project management plan that could be shared with your team members. 

Appraising an eDiscovery case is no simple task. It is easy to get off track or to overlook key information that can adversely impact the costs and effectiveness of managing an eDiscovery project, particularly once you are knee deep in discovery. This article will cover the four most important things you need to know to properly appraise an eDiscovery case. If done correctly and early in a matter, you can develop an appraisal that you can take to your client that includes reasonable and practical advice about the case and its likely costs.

I have worked on hundreds of cases and have learned that the type of case, the venue, the types of data and the deadlines are the four factors that drive any good appraisal of an eDiscovery matter. If you know these pieces of information and know the decision trees that flow from each of them, then it becomes far simpler to prepare cost estimates, timelines and risk factors about your case. Explaining all of this to your client becomes simpler, too.  Armed with a proper appraisal, it is far easier to walk a client through the steps required to conduct eDiscovery on your project. Finally, knowing these four factors and creating an understandable appraisal allows you to outline possible scenarios that may impact your case as it unfolds. Being prepared for things changing is a skill that will make communications easier and course corrections more understandable for all involved.

The four most important things you need to know should be ascertained in the following order:

    1. Type of Case

    2. Venue

    3. Data – Types, Volume and Complexity

    4. Deadlines

Case Type

The most common types of cases fall into several categories including investigations, regulatory, intellectual property, securities, product liability, employment and contract disputes. Knowing the type of case has several downstream benefits, including allowing you to determine what types of data you may need to identify, preserve and collect. You can also determine who you need to interview and what types of questions you want to ask the client as part of the subsequent steps in the process. This information is also helpful in finalizing custodian interviews, collection methods, and what their associated costs are likely to be.

The following table of Case Types illustrates and highlights the data sources that should be considered in your initial evaluation.

Data Sources

Internal
Investigations

Government
Investigations

Regulatory

Intellectual Property

Securities

Product
Liability

Employment

Contract Disputes

Custodian Email and Documents

Yes

Yes

Yes

Yes/Limited

Yes

Yes

Yes

Yes

File Shares - Doc Management, SharePoint

Maybe

Yes

Yes

Probably

Yes

Yes

Maybe

Yes

Intranets and Wikis, Blogs

Maybe

Yes

Yes

Yes

Doubtful

Probably

Doubtful

Doubtful

Software, Code Libraries

Doubtful

Doubtful

Maybe

Yes

No

Doubtful

No

No

Company Website, Social Media

Probably

Maybe

Yes

Probably

Doubtful

Yes

Doubtful

Doubtful

ERP Data - Accounting, HR, Payroll

Maybe

Maybe

Yes

Probably

Doubtful

Yes

Yes

Doubtful

Other Databases

Maybe

Maybe

Maybe

Doubtful

Maybe

Maybe

Maybe

Maybe

Investigations can be internal company investigations, such as theft or corporate malfeasance, or they can be external investigations brought by government agencies. If your case type is an investigation, you should be looking to quickly identify custodians and where they stored data.  Investigations can include the need to image hard drives of custodians and this should be something at the top of your evaluation list since response timing is important. Another consideration that comes into play in investigations is how much work you’ll need to accomplish without the parties who are being investigated knowing what you are doing. In both internal and government investigations, it’s often the case that current employees should not know what is happening and that can present some challenges such as to how you preserve and collect data. One other important decision point in investigations is determining whether Internet information such as Social Media needs to be identified and captured. Some investigations will require an analysis of what people were doing on the Web and, while it may seem counterintuitive, it’s not that uncommon to find employees doing things on the Web that could be important to an investigation.

Regulatory matters almost always include the need to identify custodian’s email and electronic documents. They also tend to be broader in scope than an investigation and often require an analysis of whether file shares, Intranets, Internet sites and structured data from a company’s ERP systems needs to be identified and preserved. Sometimes even software and software libraries need to be identified and preserved. A good example of a Regulatory matter that would require all of the above would be an HSR 2nd Request where the Federal Government wants to review a proposed M&A deal of two technology companies.

Intellectual Property (“IP”) cases present a different set of decision points for consideration. Typically IP matters do not focus as much attention on custodians and their email accounts, although a list of people and their data sources do need to be identified. When appraising IP matters it is important to identify collaborative workspaces such as Document Management Systems like SharePoint, where engineers may have worked together on documents, as well as blogs and wikis. Other sources of data to consider include engineering libraries, source code libraries and product information that exist on Internet and Intranet sites.

Securities, Product Liability, or Employment matters can be Class Actions and Product Liability and Employment cases can also be single Plaintiff cases. For our purposes we have broken the Case Types into Securities, Product Liability and Employment with an understanding that your Product Liability or Employment case could be a Class Action or Single Plaintiff. Securities cases typically involve custodian emails and network collections and may include identifying and collecting collaborative work tools such as SharePoint. While data from custodian hard drives may need to be collected, the need for imaging hard drives is increasingly seen as a cost that may not be required in these types of cases.

Product Liability matters require a focus on the Product, how much of it was sold and how damage claims have been tracked. This type of data is normally found in structured systems like accounting and sales systems. There may also be customer complaint systems on the Internet site of the company that will need to be preserved. Finally, like most cases, a list of key custodians should be developed and a plan put in place to capture their email and any documents they have that could be relevant to the matter.

Employment matters can be time consuming because of the need to identify and capture some of the same information you need in an Employment Class Action. HR data is involved as well as custodian emails and documents. Depending on the claim, you may also need to identify and capture time and payroll records.

Contract disputes are generally simpler to appraise since your primary efforts are locating and collecting contracts and any supporting information. These documents are often found in a contracts system at a company and not on network shares or in email. There may be custodian data that needs to be preserved if the contract dispute involves negotiations that occurred electronically but often those sources are limited to a small group of people who worked on a contract team.

As you can see the type of case dictates several considerations for appraisal and planning. Knowing the types of data that are associated with different case types, knowing where that data lives and determining a plan to preserve and collect it is the first step in appraising your case.

Venue

Let’s discuss venue as the second factor you will need to know to appraise your case. Once you have identified the type of case you have, knowing the venue is an important factor in determining risk, local rules and research.

High risk venues vary by case type and what part of the country the case is in. Government investigations are high risk, as are cases filed in the Southern District of New York (SDNY). Many of the precedent setting eDiscovery case rulings have come from that venue and Judge Scheindlin and Magistrate Judge Peck are known for their landmark precedent rulings. Other high risk venues can be determined by case type and location. IP matters in the Eastern District of Texas are high risk for many clients.      

Venue is also important because of Local or State Court rules. Delaware has eDiscovery rules as do an increasing number of other States as well as Local Courts. Finding out what the rules are is a critical step to completing a project management plan. If there are rules, they need to be referenced against your standard processes for handling ESI. For instance Delaware’s rules were recently revised in December of last year (http://www.ediscoverylawalert.com/uploads/file/ESI.pdf).

Finally venue is important for research. Regardless of the venue some research should be done on previous eDiscovery rulings that have come from the Venue’s State or Local Courts.

 

Data Types, Volumes and Complexity

Data is as important an appraisal step as Case Type. By the time you have identified the type of case and how the venue impacts your project plan, the next step is to identify the Data you expect to capture, process and review. Ideally interviews with IT and Custodians have already occurred or there is some baseline from previous client work that you can use to calculate Data. Without some information about the environment and types of data, your estimating job becomes much harder.

Data Types is the first step in your evaluation. Data Types are a derivative of Data Sources, and once you have determined what they are, you can get information about volumes and complexity. The table below illustrates possible Data Types for Data Sources.

Data Sources

Possible Data Types

Custodian Email and Documents

Microsoft Exchange/Outlook, Gmail, Office 365

File Shares, Document Management, SharePoint

Network Data may be in application such as SharePoint

Intranets, Blogs and Wikis

Web Servers, Web Apps

Software, Code Libraries

Library Management Software

Company Website, Social Media

Web Servers, Web Apps

ERP Data - Accounting, HR, Payroll

Enterprise Resources Systems

Other Databases

Specialty Applications, Small Projects Access

 

Volume is a calculation that starts with an estimate of the volume of data that will be collected. With enough information, it’s not hard to figure out the estimated volume per custodian, the estimated volume of other data sources and get an overall data estimate. As you figure out the types of data and the volume, you should be looking for data that creates complexity in the project. Some data is harder to get at than other data and some applications are harder to get data out of than others. For example, email archives can be confusing and complicated and can require the assistance of IT expertise to get information in formats you can use. 

As you complete this phase of your evaluation you will be in a position to estimate the costs to process, review and produce data. You’ll also be able to get the project plan ready for the final piece of your appraisal, deadlines.

 

Deadlines

Deadlines should be fairly easy to figure out based on venue and agreed upon Discovery in the case. The most important date for an effective appraisal is the Discovery cut-off date since all productions are due by then. Review estimates are also based on your deadlines. You will know your data volumes and your processing assumptions (how much data will be left for review) by now and you can calculate the number of review hours needed to review population of remaining ESI. Calculate the expected total hours to determine how many months it will take a single person to review the collection. From there you can determine the number of reviewers needed by working backwards from your Discovery cutoff date. For example, an eight month review for one person can be done by four people in two months. Productions take place after review and many people forget to include sufficient Production lead time into their project plan. Make sure your calculations have the review ending in enough time for Productions to finish.

 

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