eDiscovery service providers and consultants stress the importance of consistency: If you follow the same process for every case, and your process is reasonable, you stand a better chance of achieving a complete and accurate production that draws from all of the sources of relevant electronically stored information (ESI). You also build your case for defensibility if a discovery misstep occurs. Small wonder, then, that we are often asked to just give clients a checklist or template—for interviews of custodians and IT professionals, for identification and collection protocols, for discovery phase document review plans, or for Federal Rule of Civil Procedure 16(b) or 26(f) conferences and submissions. You can see why this happens. We administer questionnaires and our baseline questions are the same in every eDiscovery client interview. So, can’t we just share the questionnaire and let someone else administer the interview—for example, the outside lawyers who have the relationship with the client? Can’t we provide a checklist for the identification and collection of ESI and preparation for the Rule 26(f) conference and discovery plan?
My experience has been that while a template is a good starting point, my listening ability and knowledge enables me to ask the essential follow up questions. Here are 5 reasons why we wouldn’t be doing our jobs right as expert eDiscovery consultants and service providers, if using templates were our only strategy:
- Every case is different.This isn’t just a tag line. When I administer custodian interviews in order to identify potentially relevant ESI, I start with the allegations in the complaint. If requests for production have been served, I use those as well. The interview would serve no purpose if I sat down with a custodian and simply asked “what ESI do you have that is relevant to this dispute?”
- Every IT environment is different. Typically, I interview the IT professional first, then find that I circle back to him or her while I am interviewing custodians. The IT person may tell me that employees are not permitted to save e-mails and files to their hard drives, but custodians report that they do that all the time. I need to talk to the IT person again to assure them that we really do need to collect from the hard drives. If I were just ticking through a list of questions, I might not reach the right conclusion.
- Every custodian is different. Everyone uses e-mail and office programs today, but many users—maybe even most—have no idea where these data items live in their IT environment. If someone tells me they have “create an e-mail archive folder on their hard drive”, what does that really mean? I can ask them to show me on their work station what they mean if I am with them, or ask them to create a screen shot. I follow up with the IT professional—“is this really on their hard drive? If not, where is it?” I have to listen to what someone tells me in an interview and then make sure I understand what they mean. That won’t happen if I am going through a template questionnaire by rote.
- Databases and collaborative sites may play an important role in the case. During some eDiscovery interviews I learn that all of the relevant ESI will be found in e-mails and Microsoft Word documents. In other interviews, I learn that an array of databases, wikis, shared drives and Sharepoint sites contain important information: HR and time-keeping databases, accounting and inventory databases, order databases, contract department shared drives, marketing department wikis and intranets. Off-the-shelf databases, customized databases and home-grown databases. Is there a database owner in the IT department? Is there a business owner or power user? Are standard reports created and might they satisfy the production obligation? Again, I start out with the same questions, but I quickly reach a point where the next question depends on the answer to the last one.
- The whole is greater than the sum of the parts. All of the templates and checklists I use are part of an interconnected discovery plan. As I interview custodians and IT professionals, I build a collection plan. As I build the collection plan, I am creating the FRCP discussion points and Rule 26(f) discovery plans. The client and outside counsel have a chance to prioritize custodians and address whether a source of ESI is “not reasonably accessible.” The end product—a discovery plan that will be shared with the adversary and the court, and which spans the identification, preservation and collection of potentially relevant ESI—is appropriate for that case but for no other case. If I stuck to a set of templates—or if a client firm or corporation used them as a sole source—you can see that the job would not be complete.
Templates are essential, there is no doubt about that. However, the value-add of a good eDiscovery consultant or service provider is the experience and knowledge gained from using them and knowing how to ask the right follow-up question.