These days discovery is haunted by the twin specters of high compliance costs and sanctions for failure to meet compliance obligations. Nowhere are these more evident than in the class or collective action context, since the scope of discovery in such actions is generally substantially broader than in an individual claim.
The greatest contributing culprit is, of course, electronically stored information (ESI). ESI is created and proliferates at alarming rates. ESI is dynamic and persistent. These characteristics create preservation challenges, as discussed in the last issue of the Class Action eAuthority. These characteristics also increase collection complexity. Even “deleted” items may reside in other, harder to capture, sources such as slack space on a computer or on backup media. End-users may be wholly unaware that certain relevant ESI exists. They are unlikely to fully understand the details of business system functionality and data retention. Without such knowledge, a reasonably complete response to discovery requests may be impossible.
For these and other reasons, any employer faced with a matter in which significant discovery is likely to be undertaken needs to build an effective discovery response team.
Finding Information
Working with lead counsel, the discovery response team identifies the nature of the information that will be needed to defend the claims, as well as that which is sought in discovery. While lead counsel often will guide the team to individual custodians who are important decision-makers, the discovery response team will ferret out where those key custodians store ESI, as well as find subsidiary sources of ESI. In so doing, the discovery response team provides feedback to lead counsel on expansion of the litigation hold or steps necessary to implement a hold, thus helping to ensure effective deployment.
To be effective in these efforts, the discovery response team generally will include among its members the cast described below. Note, however, that depending on the size, schedule and discovery demands of a particular case and the size and complexity of the employer, the number of people may vary widely. In some instances, one person may have multiple roles. In other instances, one role must be subdivided among multiple people.
- Discovery counsel. This attorney has an ongoing involvement in overall case handling and strategy. Discovery counsel ensures that the relevant types of information are understood, evaluates information from other members of the team, and provides synthesized feedback to lead counsel.
- Interviewers. Some cases require a significant investment in detailed fact-finding relating to information sources – particularly cases that are highly dependent on structured data (data that resides in business systems comprised of databases and applications) and systems information, e.g., wage and hour cases. Management ordinarily will not know where to look for data that it may never see (e.g., access logs) or data that is ordinarily used for entirely different purposes (customer billing data or point of sale data reflecting transaction time stamps but also establishing when employees are engaged in work activities). Such information can be crucial in off-the-clock claims. Interviewers may include both in-house counsel and outside attorneys. However, to meet its ethical obligations to the court, outside counsel must have hands-on involvement with this process.
- Internal IT representative. An internal IT expert who has an overall sense of the employers’ IT infrastructure, history, and organization is an essential resource. Often, the IT representative knows where to find significant stores of information and what challenges to preservation and collection may exist. Alternatively, the IT representative can identify the right people within the organization to contact for such information, and serves as a liaison to those subject matter experts to ensure that attorneys and IT are on the same page. (In this regard, an ability to speak “tech,” plain English, and legalese (or at least understand the latter) are very helpful. Framing information requests in a way that elicits IT’s active involvement in trying to find information and solve preservation challenges is often difficult for the layperson/lawyer. Without active partnership between the legal team and IT, the right results are very difficult to obtain.) If the IT representative excels in public/adversarial speech, he or she also may serve as a witness either pursuant to a 30(b)(6) deposition notice [1], or because of local court rules requiring identification of an internal IT liaison as part of the court’s case management conference process [2].
- In-house case manager. The internal case manager represents the non-technical equivalent to the IT representative. Breadth and depth of experience with the organization are important criteria to consider, along with an ability to get attention and results from busy managers for whom discovery demands are a nuisance taking them away from their “real” job duties. The internal case manager not only provides invaluable organizational insights, but keeps the investigatory process moving. The internal case manager ordinarily is associated with the Legal Department or Corporate HR, and may be a lawyer, but also may be a highly experienced litigation paralegal, or HR professional with substantial litigation experience.
Producing Information
In addition to the identification and preservation of relevant ESI sources, the discovery response team’s task list also encompasses the more mundane, but time-consuming and often expensive, collection, review, and production of ESI. In many instances, these tasks will require vetting, arranging, and overseeing vendors and contract personnel who augment internal resources as well as outside counsel staff. All of the talents identified above have roles in one or more of these steps. However, additional components of the discovery response team may be needed.
- External case manager. The external case manager specializes in collection, review, and production of ESI. He or she is expert in available technology and techniques, and serves as a resource on collection methods, technical review issues, and vendor selection. The external case manager also oversees the production process and may supervise vendors. He or she may be affiliated with outside counsel, or may be an independent consultant retained by the employer or counsel. External case managers may save costs by streamlining processes, and taking on activities otherwise performed by discovery counsel, e.g., overseeing collection or first tier review, both discussed below.
- Collection staff. Structured data is often best harvested by the IT personnel charged with its ordinary maintenance, under the supervision of the IT representative. Self-collection, although criticized in several recent court decisions, remains an option for at least some discrete categories of ESI that do not require the custodian to make unfettered relevance determinations. However, with regard to undifferentiated types of unstructured ESI like email, collection is best left to appropriately trained personnel armed with the necessary tools.
In some instances, the employer may have such staff and the capacity internally. In deciding whether to use internal staff, a number of considerations should be kept in mind: forensically sound methods should be used (and sometimes forensic collection – creating a mirror image of the computer including all slack space – is necessary or advisable); chain of custody should be maintained; and collection staff may become witnesses [3].
If an employer does not have the ability to meet the demands of a large collection internally, a vendor is engaged. Unless the employer maintains an ongoing relationship with a vendor specializing in ESI collection, the decision to retain a vendor, and the process of doing so should be initiated early in the case. Indeed, the process is best begun shortly after the answer is filed, even though the first wave of production is unlikely to occur for several months. Outside counsel, the IT representative, and in-house counsel or the in-house case manager should actively partner in the search and selection process. (If an external case manager is retained, he or she also may have valuable insights.) This best assures that the vendor will be able to meet counsel’s performance expectations and the employer’s budgetary constraints. Once retained, the collection vendor is a key team member, consulting with the IT representative on technical issues, working with the internal case manager to schedule collections, and carrying out collections under the supervision of outside counsel or the outside case manager.
- Review and production platform. Small or moderate sets of unstructured data may be hosted by outside counsel for review and production purposes. However, large data sets are best hosted by vendors who can offer the latest review platforms equipped with advanced search and bulk coding tools and robust reporting capabilities. Many considerations affect the selection of an appropriate vendor. Examples of factors demanding close attention include:
– The degree of technical support and quality control offered;
– The speed of the platform (e.g., if it takes 60 seconds for a document to open
because of limited bandwidth, review costs are dramatically escalated);– Its versatility (e.g., does it support both Boolean and concept searches; does it
allow for review in native format);– The platform’s reliability, accuracy, and accessibility; and
– Ease of use by reviewers (e.g., is it intuitive; does it save searches; does it
redact).Costs and pricing structures also should be taken into account. Costs can vary widely but are generally based on volume. Many vendors charge by task per gigabyte of data at each step (e.g., ingestion, culling, application of search terms, deduplication, loading for review, tiffing, etc.). Others offer bulk or all-inclusive pricing based on gigabyte of data at the end of a series of steps. Ideally, collection strategy should inform the selection of the most suitable pricing model.
As with the collection vendor [4], starting the selection process early and carrying it out carefully is important to effective case management. The ability to efficiently winnow data sets and review potentially responsive documents is a major cost driver, while production delays and missteps can have a significant impact on the employer’s credibility with the court and the dynamics of the relationship with opposing counsel. Discovery counsel, in-house counsel and the case managers all play important roles in selecting the right review and production platform.
- Reviewers. While continued strides are being made in developing automated techniques for identifying responsive documents and protecting privilege without subjecting each document to scrutiny by a human (“linear human review”), some level of human review is inevitable and desired, hence the necessity of assembling a review team. To help manage costs, review teams are typically structured in tiers. Initial review, which is the most labor intensive, is generally farmed out to contract reviewers who are trained by and work under the supervision of discovery counsel, assisted by the case manager. (The cost of contract reviewers is ordinarily in the range of 10-30% the cost of law firm reviewers.)
Working against detailed written instructions and subject to quality control reviews, contract reviewers separate potentially responsive documents from non-responsive documents; flag potentially privileged documents; and apply a limited number of additional codes (e.g., coding for discrete issues or “hot documents”). Some form of second level review of documents marked “responsive” is then conducted by outside counsel. The second tier reviewers may include the “interviewers” or other less senior core team attorneys involved in the case so that they have familiarity with the facts and issues [5]. Finally, “hot documents” would ordinarily be subject to scrutiny by discovery counsel – to ensure that the document is responsive, not privileged, and subject to production, and to determine whether it needs to be brought to the specific attention of lead counsel for purposes of strategic decisions.
The discovery response team plays a continuing, though changing, role throughout the life cycle of a case. Its effectiveness will dramatically impact the costs of defense and potentially affect the outcome of the case. Therefore, building a solid team at the outset is essential.
[1] Under Rule 30(b)(6) of the Federal Rules of Civil Procedure, a deposition of a corporate representative may be noticed by identifying the subject matter of inquiry, and leaving to the employer the obligation to identify the person who will be designated to testify on the employer’s behalf regarding that topic. Identification of possible sources of discoverable information is often the subject of 30(b)(6) depositions early in a case.
[2] Companies that experience a great deal of litigation may have IT representatives who are devoted to litigation support. In deciding whether such representatives should be identified as witnesses in any capacity, the quantity of unrelated strategic information to which they have been exposed ought to be factored in. An individual with more encapsulated knowledge may be preferable. Even if the IT representative is not the right choice, he or she will likely be of great assistance in identifying alternative candidates.
[3] Because of the witness issue, outside counsel typically would not directly engage in collection activities.
[4] Some vendors of review platforms also offer collection services. However, the two need not be connected.
[5] Second tier review is an important aspect of quality control, it assures consistency, and increases outside counsel’s case knowledge. However, the stringency of the second tier review may vary depending upon the characteristics of the data sets. When dealing with custodian ESI, which may contain sensitive or privileged information, a more detailed review is warranted. Other data, e.g., reports on performance or sales statistics, may be suited to only a sampling at second tier as a quality control measure.
