Electronic Discovery – Identification

After the subpoena is received, there is a constant stream of activity between the attorneys, the client in-house counsel and the opposing counsel. Litigation Support should be involved at some level during this stage.

The attorneys will discuss the subpoena requests with the client and begin to identify potential people (custodians) that will be able to help locate or provide documents in response to the requests. These documents could be in electronic or hardcopy format. Through this process the attorneys will identify custodians that they would like to interview to get more information.

At some point the attorneys may need to tell opposing counsel a turnaround time they need to begin producing documents. Before they can produce documents, they need to collect the documents and review the documents.

Sometimes the attorneys will multiply the estimated number of custodians by an estimated volume of data per custodian. They will use this information to explain to opposing counsel how much work and time will be involved before the first document production can be made.

Estimating the volume of data per custodian is difficult. There are so many variables. I have seen estimates of 5 gigabytes per custodian used. However, I've seen data sizes per custodian that are all over the place. So, even if the attorneys are comfortable making these estimates, I make a point to remind them they are just that — estimates.

Through discussions with the custodians via phone or in person, the attorneys will identify locations that pertinent data is stored. There is usually an assumption that email will be collected for a particular date range that corresponds with a date range mentioned in the subpoena as well as the custodian's date range holding a particular position in the company.

There is also usually an assumption that electronic data from shared network drives will be collected. The custodial interviews will shed some light on which folders are relevant.

Organizational charts can be important at this stage. They usually span a period of time and there will be different versions of the same organizational chart. These are used to remind everyone who was working in a particular position in a given timeframe. The attorneys may need to speak with some of those people.

It is a good idea for litigation support to get their hands on the draft versions of the custodian list as the attorneys are editing it. The custodian list should list the name and title of each person. Keep in mind that even if the attorneys draft a custodian list as a result of initial conversations, there are always custodians added to the list at the last minute once the attorneys conduct the custodial interviews. The process of asking the custodian questions will often shed light or trigger a memory of another custodian who may have had relevant documents in their possession at one time.

Again, litigation support should keep looking for the latest version of the custodian list. It is important to make sure that all references to custodian data will use the correct spelling of their names. The custodian names are used to label data as it arrives, to name subfolders on the server and to reference custodian datasets when working with the service provider. The attorneys may forget that litigation support needs the custodian list. I usually go looking for it myself on the server or in the document management system.

Another topic of discussion during these custodial interviews is the type of electronic documents that exist. For instance, in addition to email and eDocs, there might be a database the custodians used and we need to figure out whether we need to extract information from the database or collect the entire database. Often times, reports from the database that were generated in the ordinary course of business will suffice, but it depends on the nature of the case.

Do you have any additional tips for the identification phase of eDiscovery from your experience?