E-Discovery In Litigation
While discovery is nothing new, the issues that arise from the preservation, collection, review and production of electronic discovery is an area of law that is still evolving. Moreover, the technology available to assist clients and attorneys with e-discovery is changing.
The business litigation lawyers at Houston Harbaugh, P.C., have experience representing clients in complex litigation involving electronic discovery, or e-discovery, in both the federal and Pennsylvania state court systems.
Our firm has experience guiding clients through the e-discovery process from the beginning of a matter, even before a suit is filed, through the end of the case. We work with clients at the outset of litigation to develop an efficient, cost-effective plan tailored to the client’s needs based upon the facts of the case and litigation strategy.
Storage and Preservation of Electronic Information
The preservation of electronically stored information can be a complicated issue for companies. Some courts have found that companies are under an obligation to preserve electronic data before a lawsuit is even filed. However, companies cannot be expected to save all data indefinitely.
Preservation and document retention policies require, among other things, an analysis of the company, the type of data generated and kept, any applicable statutory compliance requirements and the type of litigation that the company can reasonably expect. Houston Harbaugh can help with this analysis.
Planning and Protecting Relevant Information at the Beginning of Litigation
Once litigation is filed, it is critical that a person or company determine at the outset who may have relevant information and where all potentially relevant information may be stored and that the company issues an appropriate litigation hold. Additionally, all parties should, and in federal litigation must, meet to discuss the scope of e-discovery in light of the issues and amount at stake in the case. The goals for such a meeting include attempting to reach an agreement that will keep e-discovery costs in proportion to the amount of damages asserted in the case.
Our attorneys have experience assisting clients with large scale e-discovery. We have worked with vendors and have led an e-discovery team through all phases of discovery.
Collection of Client Documents
The collection of documents requested in discovery involves considerations of how to best narrow the scope of collection to the information requested. Depending upon the amount of electronic data at issue, the determination of which documents will be produced may be reached by utilizing human document reviewers alone, or by utilizing technological review tools, such as search terms or predictive coding, a relatively new technology. Additionally, the collection of documents requires parties to decide whether metadata will be produced and what types, and whether documents need to be collected “forensically” such that metadata is not modified in the collection process.
Review of Client Documents
Data that is collected will likely need to be reviewed prior to production for attorney-client privileged communications and attorney work product. “Clawback agreements” are used to plan for the possibility that a privileged document could be inadvertently produced, especially when thousands or even millions of pages of documents are produced in a case.
The next step in the process involves production. Document production format agreements are a useful tool in outlining the parties’ agreements as to how documents are to be produced by all parties. Options include production in native format, image files or a combination of both. Putting these details in writing prior to production may avoid costly discovery disputes later in the case.
Review of the Other Party’s Documents to Develop Case Strategy
After documents are produced by the opposing party, counsel must determine the best plan for reviewing documents produced by the other side. Such review typically combines human review with effective technology to organize, categorize and make use of the information produced. Depending upon the amount of the documents produced, Houston Harbaugh either performs these tasks in-house or uses vendors to perform the review in a cost-efficient manner. As the information is reviewed, the litigation strategy is further developed and refined to make the best case for our clients.