What small firms need to know about e-discovery

Lawyers today must take great care to protect clients’ data and personal information. And when that data becomes part of a dispute, they also must be concerned about how to handle the process of procuring and disclosing electronic information relevant to their clients’ cases.

Regardless of office size, attorneys have an ethical duty to competently preserve, produce, process and review electronic information relevant to a case. This can be especially difficult for smaller firms.

To help attorneys through the weeds of electronic discovery, the Virginia Bar Association held a free CLE on the subject on March 19 at their headquarters in downtown Richmond.

As with any form of discovery, presenters said that it is important to balance one’s duties to clients with the duty to preserve evidence.

“You can’t preserve millions and millions of documents,” said Richmond lawyer Meghan Podolny. whose practice focuses on e-discovery issues in complex commercial litigation.

“We have to define the contours of what is reasonable and proportionate to preserve based on the level of the stakes, the breadth of what is relevant to the claims and defenses and the burden of and expense of keeping that information,” she said.

The best-laid plans

Podolny and other presenters said their advice for small firms is very similar to that for large firms: Above all else, plan.

This process begins long before litigation has even been threatened. Attorneys should have a plan in place with each of their clients, noting where information is stored, who is in charge of retaining digital records and what the client’s record retention policy is. For instance, it is up to the attorney to know if the company they represent automatically deletes old emails every six months so that they can step in to preserve them when litigation is imminent.

It is also incumbent on the attorney to understand when the duty to preserve digital information actually begins. As a plaintiff, Podolny said that if you wait until the complaint is filed to start preserving information, you have waited too long. As a defendant, your preservation obligation begins when you receive notice of a complaint, but this can also extend to when litigation was threatened or when it became apparent that a lawsuit was likely.

“It’s very fact-specific,” Podolny said. “That’s your obligation as the lawyer: to advise your client when your preservation obligation has been triggered.”

It is also important to inform the opposition of what information may be needed long before the discovery process begins, in order to ensure the preservation of specific information.

Podolny recommended sending a legal hold notice to the opposition as early as possible. The notices should go to parties with unique and relevant knowledge of the situation, ask for specific documents and offer an explanation of the rationale for the holds. Attorneys should also require a notice of receipt to ensure that the other party received and is aware of the notice.

When it comes to requesting information, Natalie Harris said attorneys should spend time making a collection memorandum, including relevant date ranges, topics, custodians, sources of information and parties, before making a request. Harris is an attorney with Cognicion, an independent e-discovery service provider.

Requests should be detailed and specific, as this will save time and money when sorting through the information that is received. Conversely, this can incentivize the opposition to be concise and specific when making their requests.

Podolny recommended making a list of priorities and asking for information in phases.

“After you have received and reviewed the tier one priorities, if that is not enough, go to your tier two priorities, and always have a good reason for asking for materials,” she said.

Harris said it is especially important to take time to consider where the needed information may be stored, whether on an email server, a cellphone or an internal database. But she said to also consider other less-obvious locations, such as a social media platform or on an outdated server.

Trust the process

Once the planning stages are done and it comes time to sort through collected data, it becomes important to know what resources are available, whether that be help from an outside e-discovery service provider, a readily available software or a short-term hire to help with research.

“It’s important to consult with resources, talking to people who work in this area on a daily basis and to get help early,” Harris said. “This will streamline the process and make it more efficient and manageable financially.”

While the services provided by a e-discovery provider may be useful to many attorneys, they may be outside the range of what others can afford. Whether it be an algorithm to prevent document duplication or software to search and organize documents, attorneys should research the existing technologies on their own. Even if they choose not to use the services of an e-discovery provider, attorneys should speak with others in the field to get a better idea of what is available, how much it costs and if there is a more cost-effective option for getting a similar service.

“There are tools out there that can allow you to do more self-collection,” Harris said. “It may not be your full-blown forensic investigation that a vendor can do, but you may not need that.”

Duty to disclose gets broader?

While lawyers have to balance their duties to their clients with ethical duties to preserve evidence, the Virginia General Assembly has passed a bill which would make it easier to be penalized in the state for failing to retain evidence, including digital evidence.

Senate Bill 1619 allows juries to infer that missing evidence is unfavorable if a party handled the evidence in a reckless manner, regardless of their intent.

Podolny said the new law is just another reason why attorneys must know the ins and outs of e-discovery.

“Spoliation can be scary,” she said. “Your best defense, as an attorney, is to be sure you are documenting what you are doing, what you have found out, the decisions that you are making and why they are reasonable in the context of your particular case.”