Thursday, December 22, 2016
In the first Part of this short series, we reviewed Comment 8 to ABA Model Rule 1.1, its adoption by twenty-five states so far, and a few state-specific variations on its technical competency requirement. In the second Part, we reviewed the first five of the nine specific technical competency requirements articulated by the California Bar. In this final Part, we review the four remaining California Bar requirements.
“Engage in Competent and Meaningful Meet and Confer with Opposing Counsel Concerning an E-Discovery Plan”
Being able to fulfill each of the five expectations we reviewed in the last Part is essential to being able to fulfill this one. Competent and meaningful discussion of eDiscovery issues and negotiation of an eDiscovery plan requires that you have:
This may sound like a daunting amount of preparation, but doing the required legwork this early in the process makes it possible for you to use the meet and confer to meaningfully suggest specific scope limitations for preservation, collection, or processing based on custodians, file types, source types, date ranges, or other objective criteria. Moreover, you will be prepared to substantively discuss the proportionality of the discovery costs associated with different scopes and approaches, along with their realistic time requirements for timeline negotiation.
As with the other requirements, this one can be satisfied through collaboration with an appropriate eDiscovery expert, and many practitioners are now in the habit of involving such an expert in the meet and confer process to address technical questions, confirm the feasibility of plans under discussion, and otherwise assist in discovery planning and negotiations.
“Perform Data Searches”
Performing data searches has become a daily part of modern life, from Googling for movie listings to searching your sent folder for that one email you need, but simply typing in a few keywords is no assurance that you’ll find what you’re seeking or that your results will be reliable or complete. This requirement places the onus on practitioners to understand searching well enough to do it (or ensure it is done) effectively in their eDiscovery efforts.
Search tools are too numerous and distinct for comprehensive knowledge of their operation to be possible. From built-in search functions in native applications, to forensic search tools, to review platform search features, every toolset has slight variations in how it indexes, how it parses search syntax, and what its limitations and blind spots are. You might have the option to search metadata values in addition to text, or to search a conceptual index using more natural language. The words or values you need to search might not be indexed by default, customization may be needed.
What is important to remember is that you cannot assume one search box will work like another, so you should consult with an appropriate expert to develop (and iteratively refine) a reliable search strategy for your specific tool, dataset, and information need.
“Collect Responsive ESI in a Manner that Preserves the Integrity of that ESI”
This requirement essentially asks practitioners to understand three things: metadata; forensic soundness; and chain of custody. Forensic soundness and chain of custody are concepts that should already be familiar to practitioners from the pre-electronic discovery era. Evidence is collected in a forensically-sound manner if it is collected without alteration, and chain of custody documents the possession, storage, and handling of that evidence from its forensically-sound collection to its eventual production and admission to ensure it is what it is claimed to be. Metadata is what complicates these concepts in eDiscovery.
Metadata is simply data about data: information about a file, separate from the content visible in the file, that follows it around like a library card follows its book. Some metadata is readily visible to you and some is not. For example:
This metadata is often inherently valuable information (e.g., who knew what when?), and moreover, it is also crucial for usability, as metadata is what makes many kinds of sorting, searching, and filtering possible (e.g., all the sort options in your inbox).
Unfortunately, metadata is easily altered by copying, opening, or otherwise manipulating a file without the appropriate software and hardware tools to ensure forensic soundness. Recognizing and remembering this risk is half the battle, and the other half is collaborating with a qualified expert who has the tools to collect your electronic materials in a forensically-sound way.
“Produce Responsive Non-Privileged ESI in a Recognized and Appropriate Manner”
Just as it is no longer acceptable to collect ESI by having custodians manually copy files or forward relevant emails to the attorneys, it is no longer acceptable to just produce ESI printed out on paper or as disc of non-searchable PDFs. As with collection, practitioners must be able to collaborate with an appropriate expert service provider to produce in a standard, accepted way (e.g., TIFF images with Bates numbers, native spreadsheets and multimedia files, and a load file with extracted text and metadata for all). The specific format (and required load file fields, etc.) will vary with context and negotiation, but methods that reduce usability or omit important data or metadata will not be sufficient.
As we noted at the beginning of this short series, half of states already have some form of technology competency requirement for attorneys, and more are sure to follow. Reviewing California’s nine enumerated requirements one-by-one makes clear that they are all fairly basic eDiscovery skills that practitioners would derive significant benefits from developing (beyond just satisfying the competency requirement). And, as with all aspects of eDiscovery, your best bet is to consult appropriate experts early and often in your matters, including involving them in the meet and confer discovery planning process.