4 eDiscovery Best Practices that Courts Expect, But Your Small Law Firm May Not Know About

18 May 2018 by Anith Mathai eDiscovery small-law-firm Cases

Courts regularly pass rulings that set eDiscovery best practices. And your small law firm needs to know about them to survive and grow. Here’s a quick primer to help you get started.

Small law firms are starting to pay attention to eDiscovery.

That’s because courts now regularly pass eDiscovery rulings that affect the way small and solo firms practice law. Let’s take a look at some eDiscovery truths that these rulings teach us.

Best practice #1: You’ve got to be systematic about eDiscovery.

Small cases grow fast and catch you off guard. So you’ve got start off with systematic eDiscovery for even the simplest cases. Here’s an extreme example of bad planning, incompetence, and (possible) subterfuge that a court caught onto.

Home Instead, Inc. v. Florance, 2013 WL 5979629 (D. Neb. Nov. 8, 2013)

  • Defendants Home Instead failed miserably at preserving their electronic data. They destroyed evidence, deleted and discarded files, and sold/shredded information.
  • They also ignored other important eDiscovery steps. They ‘did not review client paper files, did not look at relevant caregiver logs or client-care plans, and were unable to explain what efforts their employees used to find responsive information.’
  • The plaintiff wanted to know if the defendants had placed a litigation hold, ‘who the litigation hold letter was sent to, the directions for preservation, the sources identified for search, the terms used for the search, how the defendants’ were ensuring compliance,’ etc.
  • The court upheld this request and ordered the defendants to provide the requested affidavit. It wanted to know how thorough the defendants’ search was, and how guilty they were in failing to preserve evidence.

Best practice #2: You’ve got to protect your metadata.

Metadata is (embedded) information about a file, like who created it, when they created it, when it was last opened, etc. It’s a digital footprint that tracks the history of the document. Metadata is now a part of public record (as we see below), so you’ll need to learn how to keep it safe

Lake v. City of Phoenix, 218 P.3d 1004 (Ariz. 2009)

  • A police officer wanted access to the metadata of his performance notes. That included – when it was created, how many times it was accessed, and who accessed it.
  • The question is, should embedded metadata be released along with a ‘public’ document? Or should people have access to only the ‘visible’ text of the document?
  • The court decided that ‘metadata is in fact part of a public record,’ and should be accessible to the public. After all, the same information would have to be produced if the reports had been written manually on a paper public record.
  • There are other similar cases. For example, with John M. Irwin, 895 N.Y.S.2d 262 (N.Y. App. Div. 2010), a court used the same logic, ruling that metadata is subject to FOIL (the state’s Freedom of Information Law). And with AtHome Care, Inc. v. Evangelical Lutheran Good Samaritan Society, No 1:12-cv-00053-BLW (D. Ohio Apr. 30, 2013), a court ruled that plaintiffs can request ‘system metadata’ (stored on a computer’s operating system – rather than embedded with parent files) be produced along with documents.

Best practice #3: You’ve got to ‘produce’ files the right way.

‘Producing’ files means getting them in order, Bates stamping them, and converting them into an agreed-upon format. You’ll need a clear plan, or risk having to ‘do-over’ your production.

Mitchell v. Reliable Security, LLC, 2016 WL 3093040 (N.D. Ga. May 24, 2016)

  • The defendant and plaintiff wanted files produced differently. The defendant wanted them as PDFs, but the plaintiff wanted them in their ‘native’ format.
  • The defendant said it that a native production would cost $3,000 more than a PDF production and that the case itself was worth less than $10,000. But, the plaintiff argued that the case was actually worth $50,000 to $300,000, ‘plus lost wages and benefits and reasonable fees and costs.’
  • The court agreed with the plaintiff. It ruled that the case was important enough that having access to the metadata in the ‘native’ files warranted the extra $3000 in cost.

Best practice #4: You’ve got to pay attention to email eDiscovery.

Businesses today talk to each other via email. So, it’s no surprise that email is a huge part of eDiscovery. Here’s an example of how important it is to have an acceptable email-retention policy.

Peterson v. Seagate U.S. LLC, 2011 WL 861488 (D. Minn. Jan. 27, 2011)

  • In 2004, Seagate fired some employees, as part of a reduction in workforce.
  • In 2008, the Equal Employment Opportunity Commission (EEOC) accused them of destroying email (and backups) of terminated employees. This was part of normal policies, whereby emails were deleted after 30 days and backups were deleted when computer servers were full.
  • The court ruled against the EEOC. It stated that for sanctions for ‘spoliation of evidence,’ Seagate should have intended to destroy evidence and suppress the truth. Here, this wasn’t the case. Seagate could not have known that a nationwide class action would be filed for a matter that was limited to Minnesota. And its actions were part of an acceptable email retention policy.

So, how do you keep the courts happy? Get the right eDiscovery software.

For example, a powerful-but-affordable eDiscovery app like GoldFynch can help you deal with all the issues we just covered: protecting your metadata, expertly handling email, and producing your files in the appropriate format.

GoldFynch is cool for other reasons too.

It’s an easy-to-use eDiscovery app, and small law firms are excited by it because:

  • There’s no set-up required. It runs in the Cloud, and you use it through your web browser. So you can start working immediately. No sales calls or emails. And no credit card. Plus, your trial case is free.
  • You can work from anywhere. All you need is an internet connection. Perfect for when you’re on the go.
  • You get the best technical support. Its designed, developed and run by the same team. So, the technical support isn’t outsourced. Which means prompt and reliable service.
  • Most importantly, it’s affordable. Just $25 a month for a 3 GB case. That’s much less–every month–than the nearest comparable software. And hundreds of dollars cheaper than many others. Plus GoldFynch can grow with your case, as you keep adding more data, the billing pro-rated. So you only pay for the data you uploaded. Cases can range from 3 GB to 100s of GB.

Intrigued? Here’s how you can find out more.

Special thanks to Max M. Miller (Assistant Attorney General – Consumer Protection) and J. Bradley Horn (Assistant Attorney General – Dept. of Human Services) for the case studies.