“4” Copyright by Eva the Weaver

We’re answering our 5 Questions to Ask Your Law Firm About eDiscovery — If you’ve missed our previous posts, check the links at the bottom of this email. This week we’re exploring the questions:

Does Your Firm Provide a Discovery Report?  If so, what does it include and why?

Have you EVER seen a discovery report from your outside counsel on a matter?  A report that tells you what steps have been taken to date in discovery, what custodians have been interviewed, what data/information has been collected, what the process was to handle the data, why specific decisions were made?  Whether third parties have been contacted?  Anyone?  Bueller? Bueller?

I ask because in 13 years of litigating cases — often very high profile, bet-the-company class action litigation — I never did one.  I thought about it — and even started them — as I knew they could inform decision, but I never finished one.  No client ever asked for one either.

But with ESI now making up 99% of all discovery, reporting is a MUST.  It’s a must because there are so many minute decisions made about what to collect, who to interview, what date ranges of preservation to maintain, etc.

Creating a discovery report is something that we do as a matter of course now, and you should too.  We create a specific report for each case, using a set template of content that’s pertinent for every case and then add additional, case-specific information. Here’s why:

If you don’t keep a running tab of what you are doing and why in eDiscovery, and you have to explain your actions to the other side or the court,  you will pay 10 times as much to recreate and justify those decisions AND you likely won’t be able recreate everything.  

Do the sensible thing instead, and create a template report that you can use for each case. REQUIRE your counsel to fill it out and provide it to you for your review.  It will also allow you to be involved in the decision making process and provide input as to whether you need to question decisions made by outside counsel.

Bah, humbug, you say.  Creating a report is just another way for counsel to run up fees.  Or, from outside counsel’s perspective:  I don’t have TIME for that.  We are slammed already with this case and ten others.

Here’s just a few of the questions that a discovery report will answer for you.  And, trust me on this, you’ll use the report at least 5-10 times to answer these questions — it happened just the other day in one of my matters that we needed to revisit whether data was de-duplicated and if so, at what stage, so we’d know how to handle the data in the review tool.  Any of these sound familiar?

• Jason is being deposed in two days and he didn’t provide his cell phone for collection, but now says that he may have texted the other side about issues related to the case.  Hmmmm.  Check the report. His custodial interview notes say that he dropped the phone and broke it two months before the legal hold went into place for this case.  He threw away the phone and did not have it to preserve. Now you know how to prep him for his deposition on the subject.
• Why did we decide not to interview Eric about this case?  Check the report — custodian notes indicate that Eric left the company before the legal hold went into place and his data was purged after departure.
• How/why did we decide on the date range for the case?  Check the report — oh, yeah, we agreed with counsel following an email exchange on March 11, 2011.
• Did we ever follow up with counsel on the additional information that we asked for?
• What vendors are we using on this case and what do they cost?  (This is helpful when you get a bill for a huge sum and you wonder what it could possibly be for, or just need to call someone.)
• What open issues do we have?  How much do we have left to do in discovery?  (This helps for budgeting purposes.)
• What potential risks do we face with eDiscovery in this matter?  What do we need to plan for?  (This can be huge especially if you have insurance coverage for a matter, or need to plan for a larger budge in the event of a sanctions issue.)

So, what should the discovery report look like?  Of course, that will depend on the case.  We organize our reports into main categories for each of the following and provide a table of contents with hyperlinks that you can jump to at any point.  That way you don’t have to read everything to find out what you want to know.  It sounds simple — just creating a searchable pdf — but it really makes a lot of difference when you need to know something fast.  We’ll be adding a sample discovery report to the eDiscovery Assistant app soon.  Here are the categories of information we use:

• Report Basis — This section details our role in the case as well as others that we work with, outlines individual’s roles, etc.
• Case Summary — Pretty self-explanatory, but with a bent towards discovery.  Might include any specific goals or issues for the specific matter that need to be considered (i.e. company about to be acquired, want to resolve quickly, or multiple employees are leaving the company and information needs to be preserved quickly).
• Provider/Counsel Contact Information — You got this one.
• Witness Summaries — Notes and summaries from custodian interviews.  This can include custodians or anyone — we often include notes from counsel as well as they inform decision making.  Each witness has a separate section with a summary of their role, ties to the case, specifics on types of information and locations of ESI as well as what has been collected for each.
• Legal Hold Information — As it suggests, everything about the legal hold or lack thereof including when it was sent, who it was sent to, where information about the responses to the legal hold live and who to contact to get them, scope of the hold, etc.  We include the date range of the hold/preservation here as well as the basis for the decision in setting it.
• Correspondence with Counsel — Quick write up of correspondence with counsel on discovery issues.  This should reference the actual correspondence but not include it. We keep a running appendix that can be provided or used for motions as needed.  No need to bulk up the report.
• Data Identification and Collection — What’s collected and why for each source of ESI. This section includes decisions on what to/not to collect and why.
• Treatment of Data — What’s done with the data after collection — did you Index it? Using what tool and at what provider?  Process it?  At what cost?  Put it in a review tool?
• Metrics for the case — This section is a development in progress, but will tell you the costs per custodian for a matter, along with other very useful metrics. We outlined exactly what you’ll want to look for and expect and why metrics are so useful here.

Our post on #2 on our list — Does Your Firm Have an eDiscovery Process? — talked in detail about the ability to leverage costs for eDiscovery instead of reinventing the wheel each time.  Reporting goes hand in hand with that notion.   There’s no magic to it, and it’s pretty darn easy.  For example, my assistant now knows to log entries into the report when new correspondence comes in, or I send her a quick email with an entry that she adds.  Very little cost to the client — HUGE payoff when we need it.

Reporting is just part of the mindset that you need to make your firms get into.  Include it on your RFP’s for firms, lay it out in your outside counsel guidelines, or just plain ask for it. Even if you use different firms for different matters, you’ll start to see who stands out.

Leverage your work across matters through reporting.  It’s just good business.

Better discovery = better business.

What will it take to get you on board?

Check out our earlier posts in this series:

• 5 Questions to Ask Your Law Firm About eDiscovery
• #1 Who’s in Charge of Your eDiscovery?
• #2 Does Your Firm Have an eDiscovery Process?
• #3 What Technology Does Your Firm Use and Why?