What to Consider Before An eDiscovery Meet-And-Confer

22 January 2022 by Anith eDiscovery

Takeaway: Here are 6 broad topics to consider before your first meet-and-confer: (1) Where’s all the eDiscovery data stored, and who controls it? (2) How much of it will you preserve? (3) How will you collect it? (4) How will you search it? (5) How will you handle privileged information, (6) What production protocols will you follow?

Meet-and-confer discussions are a great opportunity to streamline eDiscovery and cut costs.

‘Proportionality’ is a huge factor in eDiscovery, so you want to make sure you don’t spend more on a case than it’s worth. And this means evaluating each stage of eDiscovery to see what you can streamline. Meet-and-confer discussions are the perfect place to start doing this by setting the scope of eDiscovery up front. Both parties can agree on things like how you’ll identify responsive files, where you’ll store them, how you’ll produce them, and more. And deciding on these specifics in advance can help guide how you spend your time and eDiscovery budget.

So here’s what to consider before going for your first meet-and-confer.

These are 6 questions to discuss with opposing counsel.

1. Where’s all the data stored? And who controls it?

Your first task will be to agree on what data you’ll be gathering, which devices you’ll gather it from, and which custodians’ computers you’ll need access to. The thing is that deciding who a potential custodian is can get tricky in a digital world. For example, imagine there’s a contract on your desk, and it has your name on it. We can be pretty sure you’re the custodian here. But what if it was a PDF document on your laptop? And what if you shared it with your team on Google Chat? Are you still the custodian? Because you don’t own or control it anymore since it’s on the group chat and your colleagues have probably downloaded copies of it. And those files are likely also in the Cloud (on Google servers). So, there’s a chain of custodians for that single PDF – you, your team, and even Google – and who ‘controls’ it will depend on the specifics of your case.

2. How much of the data will you be preserving?

You’ll want to decide how much data to preserve. For example, you might choose to list the job titles or descriptions of custodians whose files you’ll consider (e.g., ‘HR team’ or ‘marketing heads’). Or you might decide to discount all files with creation/receipt dates outside a particular range (e.g., January 2017 to April 2020). Or files that would be too complicated to collect. And if there are any data retention policies in place, you’ll need to decide whether they should continue or not.

3. How will you collect the data?

You’ll want to explore your data collection options. For example, will you collect all the data at one go or do it in phases – perhaps starting with particular departments or custodians and computers that are easiest to access? And how will you get the data into your eDiscovery software? The challenge is to not mistakenly skip custodians or misplace/corrupt their files. And you’ll also have to account for custodians who delay sending in their data. For this, you might want to use an eDiscovery data collection tool that can gather files directly from custodians’ cloud accounts (accounts like Gmail, Google Drive, Dropbox, and more).

4. How will you search your data?

The eDiscovery software you select will determine how effectively you can search your data. For example, GoldFynch offers multiple types of searches, depending on how in-depth you want to go. With a ‘basic’ keyword search, you’ll type in a single keyword like ‘accident,’ to see how many of the hundreds (or thousands) of emails, PDFs, Word files, etc., have information about the car accident you’re researching. But if you want to go a little deeper, you’d combine keywords to make an advanced search query like “accident AND car AND Jim’. And by also pulling in metadata (e.g., the ‘sent’ date of an email), you’ll go a step further with advanced search commands like, “Find emails sent in 2019 discussing Jim and Pam’s car accident.” Learn more about advanced searches.

5. How will you handle privileged information?

You’ll want to redact privileged information, and the best eDiscovery applications do this by ‘burning in’ redaction boxes over words, sentences, or even entire pages. (Learn more about eDiscovery redaction). But what if someone makes a mistake while redacting files? You’ll need to go over contingency plans for if sensitive information is produced. And it’ll also help to agree, in advance, on what makes a piece of data redaction-worthy.

6. What production protocols will you follow?

You’ll need to choose your production format for structured and unstructured data. (Structured data = databases, collaboration sites like Slack, etc.; Unstructured data = Word documents, emails, etc.) You’ll also want to decide what metadata fields you’ll produce (if any). eDiscovery applications like GoldFynch offer 4 production formats:

  1. Native productions, where you’ll produce your documents in their original format. So, your productions will have a mix of different file types – e.g., Word documents, Excel sheets, Outlook emails, etc.
  2. PDF productions, where all your files will be converted into PDFs (Portable Document Format). The advantage here is that you won’t need an array of parent applications to open different file types in your production (E.g., Microsoft Word for Word documents, Notepad for .TXT files, etc.). Instead, you’ll only need Adobe Acrobat Reader.
  3. TIFF productions, where your files are TIFFs (Tagged Image File Format). TIFFs were the original standardized, universally-accessible file type – the credentials that PDFs are now known for. Generally, PDFs are better than TIFFs for eDiscovery productions, though.
  4. A mix of native files, PDFs, and TIFFs: Here, you’ll set formats depending on file type. For example, you might decide to produce word documents as PDFs, but spreadsheets as natives.

How to decide which production format to use.

Remember, the eDiscovery software you use will affect each of the above steps.

All the tech decisions you make at a meet-and-confer depend on the eDiscovery software you plan to use. And we designed GoldFynch to be the kind of efficient, cost-effective eDiscovery tool worth reviewing before you meet with opposing counsel. Here’s why GoldFynch might interest you:

  • It costs just $27 a month for a 3 GB case: That’s significantly less than most comparable software. With GoldFynch, you know what you’re paying for exactly – its pricing is simple and readily available on the website.
  • It’s easy to budget for. GoldFynch charges only for storage (processing files is free). So, choose from a range of plans (3 GB to 150+ GB) and know up-front how much you’ll be paying. You can upload and cull as much data as you want, as long as you stay below your storage limit. And even if you do cross the limit, you can upgrade your plan with just a few clicks. Also, billing is prorated – so you’ll pay only for the time you spend on any given plan. With legacy software, pricing is much less predictable.
  • It takes just minutes to get going. GoldFynch runs in the Cloud, so you use it through your web browser (Google Chrome recommended). No installation. No sales calls or emails. Plus, you get a free trial case (0.5 GB of data and a processing cap of 1 GB), without adding a credit card.
  • It’s simple to use. Many eDiscovery applications take hours to master. GoldFynch takes minutes. It handles a lot of complex processing in the background, but what you see is minimal and intuitive. Just drag-and-drop your files into GoldFynch, and you’re good to go. Plus, you get prompt and reliable tech support.
  • Access it from anywhere, and 24/7. All your files are backed up and secure in the Cloud.

Want to find out more about GoldFynch?