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Don't miss any steps in the eDiscovery Process

The eDiscovery Checklist Manifesto is

  • An iterative, adjustable, and comprehensive list of items to consider throughout the eDiscovery process
  • A joint project of Digital WarRoom & ACEDs
  • Designed to serve a broad audience of eDiscovery practitioners 
  • Written and edited by industry thought leaders including President of ACEDs Mike Quartararo, Consultant Tom O'Connor, and Digital WarRoom Senior Consultants


From the moment litigation becomes imminent until a settlement or judgment, practitioners in e-discovery cannot afford to miss anything. It is crucial to both meet the necessary legal requirements to the court and zealously represent your client while at the same time managing time, budget, and risk.


Add the free checklist to your toolkit and make sure you and your team have every step in the eDiscovery process covered.


A one hour ACEDs webinar discussing the Checklist Manifesto is available below, as well as a previous version of the Manifesto targeted towards Digital WarRoom users.

Download PDF Checklist

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eDiscovery Checklist Manifesto Webinar



The eDiscovery Checklist Manifesto - Your Comprehensive Guide To The Entire eDiscovery Workflow


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eDiscovery Checklist Manifesto Written by:

Tom O'Connor - Litigation Technology Consultant at Gulf Coast Legal Technology

Bill Gallivan - Managing Director at Digital WarRoom.


Litigation is complex, dynamic, and unpredictable. A good checklist is designed to be your guide book in forming a consistent, repeatable process. From the moment litigation becomes imminent until a settlement or judgment - you cannot afford to miss anything. Because of the high stakes of litigation, it is crucial that you meet your requirements to the court and that you justly represent your client while managing time, budget and risk. This manifesto will serve as a complete eDiscovery litigation checklist covering the entire legal discovery process.

The traditional Electronic Discovery Reference Model (EDRM) was developed in 2005 to provide litigators with common language and baseline steps for which to evaluate service providers. While the EDRM is still useful, the industry has matured.

What has changed since 2005?

1) It no longer takes a collection of teams and experts to navigate eDiscovery

2) DIY eDiscovery is now available at affordable rates for small and medium sized litigation

3) Attorneys are now expected to be technologically educated on issues relating to eDiscovery

Because of the advances listed above, the cost of litigation has dropped significantly and the job description of a litigator has expanded. Educational content must evolve to encompass the newfound technological requirements of litigators in alignment with their traditional role of risk management, cost management and time management. Digital WarRoom recognizes that all of these responsibilities constitute an iterative, nonlinear process. In this checklist, we establish a complete list of points which form a more accurate depiction of the workflow of the modern day litigator.


Electronic Discovery Reference Model (EDRM)

EDRM grayscale


The EDRM model, originally designed by George Socha and Tom Gelbmann and now owned by the Duke University Law School, is intended as a basis for discussion and analysis of the eDiscovery process. The EDRM is defined as a framework for approaching the e discovery process.


The eDiscovery Checklist Manifesto Diagram

Our diagram shown below, is based in part on the EDRM diagram. The outer circle represents unique steps while the inner circle represents more common steps which may occur at any
point in the process. Like the EDRM chart, this is not a literal, linear or waterfall model. The ordering of the stages are only important conceptually. In reality, you can cycle back to earlier steps at any time, refining your approach as you gain a better understanding of the data or as the nature of your matter changes. The diagram is intended for discussion purposes, not as a prescription for the one and only right way to approach the eDiscovery process flow.

eDiscovery Checklist Manifesto Wheel Diagram - EDRM

Given this context, all stages outlined in the diagram should be considered at one or multiple points as you move through litigation. The goal of our checklist manifesto is to include a high level checklist associated with each stage. Because of the intended simplicity, we recommend that you consider every bullet. Throughout the document, we will link to more specific and detailed information. At that point it is up to you to decide your level of granularity.


Table of Contents

Specific Unique Steps

eDiscovery Requirements & Obligations: Relevant rules and standards for attorneys

Client Interview: Consider and discuss these points in the initial client meetings

Identification: Identify and validate all potentially relevant ESI sources

Preservation: Issue litigation holds and stop the unintended destruction of potentially relevant ESI or associated metadata

Custodian InterviewsGet in contact with system administrators who may be relevant to the litigation

Collection: Acquire potentially relevant ESI in a forensically sound manner

Processing: Prepare ESI for filtering, analysis and review by storing metadata, indexing text,

MetadataExplore types of metadata which may play a role in electronic discovery

Early Case AssessmentBegin to understand your data as it relates to the case in order to make reasonable agreements with the opposing party during the ongoing 26 f conference

Review: Make decisions on each document for disclosure and claim construction using tools such as filtering and keyword search.

Analysis: Examine trends in your data set using early case assessment tools in concordance with your risk and budget management strategies

Production: Disclose ESI relevant to the investigation in agreed-upon formats while not producing privileged documents


Common Steps

Strategy: Create a comprehensive game plan for controlling your litigation

Risk Analysis: Consider liabilities, requirements, sanctions and business impact

Budget: Understand contemplated costs and assess if damage is proportional to the burden of litigation and eDiscovery



eDiscovery Requirements Checklist

These are issues every attorney should be aware of and conversant with themselves.


Federal Rules: The Federal Rules of Civil Procedure (FRCP) (Link)

Rule 1: Just, Speedy, and Inexpensive

  • The FRCP should be utilized in manner to secure the just, speedy, and inexpensive determination of every action and proceeding.

Rule 26 (b) (1) - Scope and Proportionality (Link)

  • A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost

Rule 26(f)- Meet and Confer Conference of the Parties (Link)

  • In conferring, the parties must consider settlement, make or arrange for ESI disclosures; discuss any issues about preserving discoverable information; and develop a proposed discovery plan.

Rule 34 - Form of Production and Specificity (Link)

  • A party may serve on any other party a request for production of documents. This request must specify with reasonable particularity each item or category of items to be inspected. The request must also specify the form in which ESI is to be produced

ABA Model Rule 1.1 has been adopted by 34 of the states and proscribes a mandatory ethical duty of technological competence (Link)


State Bar CLE Requirements. (Link)


Client Interview Checklist

These are consultation points that every attorney should cover or consider in the initial discussion with the client. This interview should provide insight for other EDRM steps such as Identification, Preservation, and Collection. Consultation can occur at any time and should occur before any specific litigation in order to adequately prepare the client in a proactive manner for issue that may arise should litigation occur. Consultation may then occur cyclically throughout any project and will flow into the Strategy checklist set out further below.


Meeting Checklist:

Consider these points when litigation becomes imminent
Business Type: What is the business type?
Business Specific Practices: Are there specific document types, technology and/or training of personnel common to the client’s business and the employees who will be involved in this discussion?
Data Management Questions: What is the current data management strategy? Does the client have any formal data retention policies and procedures? If so, what is it and what tools are used? If not, how do employees save, retrieve and share documents?
Information Governance Considerations: What are the information governance (IG) policies and procedures? What are the document management systems (DMS)?
Legal Preservation Requirements: What documents fall under a legal requirement such as HIPPA, banking, privacy regulations, insurance, etc?
Data Map: Does the IT department keep a data map? If not, they should. The data map is also related to org chart
Employee Chart: You will need a complete employee organizational (org) chart with name, positions, business locations; all linked to the data map.
Privacy Considerations: You will need to cover privacy considerations with HR people and discuss any and all document retention areas where privacy issues may apply.
Insurance Considerations: Gather copies of all Insurance Coverage(s) including policies and analysis of coverage for disputes that may arise. Don’t forget policies on individuals including life insurance policies that may have E/O or DI coverage.


Manage Expectations

A lawyer cannot provide a specific budget or pricing until the items in this checklist are considered and agreed upon. Wrap your checklist conclusions into a timeline with action items and Project Management items from the Strategy section. For a good overview discussion of Project Management, listen to Mike Quartararo on Youtube or visit his website.


eDiscovery Identification Checklist

In the EDRM, the legal team uses the identification phase to identify and validate potentially relevant sources of ESI which could include people and systems. One common way to do this is by creating an ESI data map. This information will be crucial to issue an effective litigation hold in the Preservation stage. The scope of potentially relevant data may be uncertain in the early phases of a legal dispute, so after you gather insight from the initial client consultation and custodian interviews, the next step is figuring out where to look.

Data Map (Link)

A successful electronic discovery project must include an accurate picture of the target company’s data sources. The data map will consist of all hardware and software deployed to accomplish routine tasks such as managing company e-mail or creating data backups.

You may have to be creative to uncover all the information and data maps tend to vary widely from organization to organization and even within separate units of a sufficiently large individual company.
This identification process will locate servers of all types with data of all types (e.g. file servers, collaboration servers, e-mail servers, web servers, litigation servers) as well as any data management systems (e.g. document management systems, financial systems, disaster recovery, and backup systems).

Thus the map will cover servers with overall company data as well as user data such as user home directories or departmental shared directories. It should also include all BYOD (Bring Your Own Drive) sources such as laptops, tablets, smartphones, memory cards and access from home computers.


Communication Tools

  • Email
  • Text
  • Social Media
  • Messaging Apps like Slack, Google Chat, Facebook Messenger, Whatsapp


  • Marketing & sales information
  • Product development/IP – notebooks, patents, R&D database, etc
  • HR - Identify if there is an HR department with specific policies and procedures
    • Available data search tools
    • Information Governance (IG) - internal data storage and deletion policies
    • Structure - How is the data available? Internet, website, local?
    • Policy - De-facto rules or company policies approved by management?
    • Document Management System (DMS) - How are documents named, saved and stored?
  • Customer Service / Help Desk
  • Accounting & Billing
  • IT

Org Chart

  • Who are all the possible custodians?
  • Who has access to what data?
  • How does each employee relate to each data source?


eDiscovery Preservation and Litigation Hold Checklist

The underlying legal responsibility here is to isolate and protect against the intentional or unintentional destruction of potentially relevant data. This process must be reasonable; proportionate; efficient and auditable. The phrase often used by courts is that this should be a “repeatable, defensible process.”


The duty to preserve relevant data does not always flow from a litigation hold notice. It may arise under a common law obligation, a statute or regulation. In Federal court, the obligation arises when the party has received notice that the evidence is relevant to litigation OR when a party should have known that the evidence may be relevant to future litigation.


In the federal and most state courts, there is no tort cause of action for the intentional destruction of evidence after litigation has commenced. However, since such destruction constitutes the abuse of the discovery process, it is subject to a broad range of sanctions. These sanctions are intended to remedy discovery abuse rather than punish the offending party.


Finally, remember that the duty to preserve is not the same as the directive to produce. Theoretically, preservation is broad while production is more targeted.  Begin with your strategy and work forward from there.


Preservation Checklist

  • Litigation Hold (Lit Hold) Strategy: What is the overall strategy? Consider the points listed in “What Is A Litigation Hold” from Zapproved as well as “The Perfect Preservation Letter” by Craig Ball.
  • Data Preservation Sources: What sources need to be preserved? Refer to existing IG policies and relate it to the org chart.
    • Documents or databases
    • Company owned devices- Drives, servers, Backups, email,
    • Employee owned devices: Bring your own drive (BYOD)
    • Company owned data held by third parties
  • Find Relevant Custodians: Which custodian would be relevant to reach out to regarding a lit hold?
    • General counsel, Head of HR, Head of IT - Issue permissions to deviate from the current IG policy
    • Specific named users or users of relevant collections - “Do not delete data from your personal devices”
    • System Administrators - Use separate, more specific instructions to stop automatic deletion policies


Litigation Hold Directive

The EDRM defines a litigation hold as a “ … communication issued as a result of current or anticipated litigation, audit, government investigation or other such matter that suspends the normal disposition or processing of records. “  (Link)

    • Preservation Letter: Write and send a preservation letter to specific custodians which is intended to prevent the deletion of potentially relevant data
    • Follow Up: Continue to follow up with custodians as needed
    • Stay Proactive: This is an iterative process with an expiration protocol. This is not a one and done. Case law suggests you must reissue and/or alter litigation holds periodically.

Audit trail

    • Record of issued and acknowledged lit hold
    • Record of scheduled and completed custodian interviews
    • Document the release of the litigation hold

See Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Duty to preserve and relevant sanctions)


eDiscovery Checklist of Custodian Interview Questions

Identify and review all custodians and system administrators who may be relevant to the litigation. Simple and straightforward questions often elicit the most helpful answers and should be focused on the time frame and data questions at the center of the dispute.


Some areas to consider in an e discovery questionnaire include:

  • System Administrators: Identify administrators of each major system from the identification phase
  • Custodian Duties: Identify job duties, company tenure, and prior job titles for each custodian
  • Custodian Involvement: Define custodians involvement in issues related to the matter
  • Custodian Preservation Activity: Determine if the all affected custodians are on hold for other matters.
  • Computer Equipment: List all computer equipment used
  • User Accounts: List all user account info
  • Email Aliases: List all email aliases
  • Email Accounts: List all personal email accounts
  • Mobile Devices: Identify any mobile devices used to access email accounts
  • Passwords and File Security: State use of passwords and/or file encryption on relevant files
  • Data Archiving: State all data archiving and backup practices
  • Specific Sources And Folders: Identify locations and folder names of relevant information
  • Colleagues Of The Custodian: List names of people who the custodian worked with on the matter
    • Internal
    • Third party
  • Accuracy: Certify that the responses provided are complete and accurate, to the best of their knowledge.
  • Audit: Notify custodians of the release in writing to create an audit trail.


eDiscovery Collection Checklist

Collection is the acquisition of potentially relevant electronically stored information (ESI) as defined in the identification phase. The process of collecting ESI will generally provide feedback to the identification function which may then influence or even expand the scope of the ediscovery project.


Form Of Collection

  • Self collection - In-House collection
  • Archiving Software or Document Management System
  • Hire a forensics expert - Need someone to testify that the data was collected without altering the metadata (forensically sound acquisition)Collection (1)

Format Of The Data

  • Native vs TIFF w/Text
  • Stored in the Ordinary Course of Business
  • Agreed Upon Protocols


  • Stake in litigation
  • Budget (See Budgeting Section)


Documentation Of Process:

Prove to the court that you collected data in an appropriate manner.

  • Audit Trail: Good software will provide an audit log automatically
  • Manual Collection - We recommend keeping an audit log with detailed, timestamped notes
    • Screen Shots
    • Testimony
    • Forensic Images
  • Process - How is the data collected?
    • Forensics Collection
    • Third Party Collection
    • Agreement - Come to an agreement with the opposing party on how the data will be collected
    • Court Order - The court requires a certain form of collection
  • Authentication: All evidence presented in court needs to be authenticated
    • Federal Rule of Evidence (FRE) 902 - Self authenticating social media preservation
    • Standards of authentication vary by state


Electronic Discovery Processing Checklist

After collection, it is often necessary to “process” data to prepare it for review. The goals of processing are for the reviewer to first identify what is in the data set to develop a sense of the organizational TechBlogPostImagestructure. When the documents are processed in an eDiscovery tool,  all item-level metadata will be recorded as it existed prior to processing. To enable defensible reduction of data, the user can create initial filter criteria in the policy wizard such a relevant date range which will carry only appropriate items forward to the "review" view. (Link)



  • Plan Out File Organization: Check the existing folder structure of your data and decide how you will organize it in the tool
  • Processing Segmentation: Quickly sift through your data in file explorer, see what you have and decide if you would like to process it in chunks or as one big upload


What Happens During Processing?

  • Extraction Of Metadata (See Metadata Section)
  • Indexing Of Plain Text: All plain text in your documents will be scanned and can be used as a keyword search filter
  • Exceptions: Documents that could not be opened during processing will be return an exception


Next Steps

  • View exceptions and make risk adjusted decisions to triage documents based on the likelihood of relevancy and the difficulty to resolve the exception (Link)


Policy Wizard

This wizard is also known as the “26f Wizard”. This is a way to create preliminary filters which quickly remove documents that are repetitive or outside the scope of the investigation. As both parties continue to define potentially relevant, you will be able to strengthen your eDiscovery policy, thereby reducing data volume and dramatically lowering ediscovery costs.

  •  Deduping Policy - Understand how deduplication relates to your review workflow, marks and issue codes. (Link)
  • Date Range: Define a relevant date range
  • Keyword List: Enter a negotiated keyword list
  • De-Nist: Identify and remove unimportant system files
  • Exclude File Extensions: Stick with the default, or add your own file extensions to exclude


Processing a Loadfile

  • Overlay Metadata: Use the overlay metadata wizard to match up the fields of the loadfile to your local fields in DWR
  • Review All Loadfile Documents: Make sure that you do not remove any documents from opposing or third party imports in the policy wizard


Metadata in eDiscovery

Metadata is "data [information] that provides information about other data". There are many types of metadata out there. You should know what data you were given, what data could be missing and how this information could help you.


Metadata is data created by the computer that the user does not see. As such, track changes comments are technically not metadata but it is often referred to as such and metadata such as vendor added blur that distinction.  


Many Distinct Types Of Metadata Exist, Including:

  • Descriptive Metadata: a resource for purposes such as discovery and identification. It can include elements such as title, abstract, author, and keywords.
  • Structural Metadata: indicates how compound objects in containers of data are put together, for example, how pages are ordered to form chapters.
  • Administrative Metadata: provides information to help manage a resource, such as when and how it was created, file type and other technical information
  • Reference Metadata: describes the contents and quality of statistical data
  • Statistical Metadata: describes or documents statistical data, i.e. microdata, macrodata, or other metadata
  • System Metadata: data that can be obtained or extracted about a file from the file system storing the file and not the file itself
  • Application Metadata: data stored in a document about the document
  • Vendor Added Metadata: data created and maintained by the electronic discovery vendor as a result of processing the document. Often used for process reporting, chain of custody, and data accountability


Within an eDiscovery tool, open up the metadata selector window and decide which metadata is most relevant to view based on the types of documents that were collected. Different file extensions can have completely different metadata


Early Case Assessment and Customizing Your Software Environment

Document review is where your team will likely spend most of their time during an eDiscovery project. The duty to preserve is not the same as the directive to produce. People tend to over-preserve out of an abundance of caution. During review, you will have the opportunity use your legal discovery software to cull down your data. In fact, in our opinion, the goal of early case assessment is to reduce data volume, lower costs and save time. Keep in mind that early case assessment occurs throughout the EDRM and ties in closely with the common steps included in our eDiscovery workflow infographic. The points mentioned in this “early case assessment” section can be completed continuously and in any order.


Reviewing Techniques Are Used To Identify:

  • Responsive documents to produce
  • Relevant documents to review and tag
  • Privileged documents to withhold


Quick Review (Early Case Assessment and Analysis) (Link)

  • Document Overview: High level overview of documents to get a sense of the data
  • Smoking Gun: Look for an obvious smoking gun or a specific name/topic
  • Privilege: Assess potential privileged data
  • Budget Expectations: Assess the data volume and other factors which should be considered to determine budget expectations (See Budget Section)
  • Scope: Determine the scope of potentially relevant data for discussion at the ongoing 26f meet and confer conference between the two parties


Pre-Review (Link)

  • Custodians: Assign a custodian to each collection
  • OCR: Use a built-in OCR tool to scan for words in documents that could not be indexed - PDFs, images, etc
  • Set Up Marks: These marks are designations to determine whether to produce a document
  • Create A Claim Outline: During your review, you will likely find documents that support points in your claim outline
  • Issue Codes: Create issue codes. Issue codes are custom made by the user to represent points in your claim construction outline.
  • Review Protective Orders: Determine if you have or need a protective order


26 f Conference

According to the FRCP, the plaintiff must initiate a conference between the parties to plan for the discovery process after the complaint was served to the defendants. ... The parties should attempt to agree on the proposed discovery plan, and submit it to the court within 14 days after the conference. For a good discussion of this practice area, see Chapter 6, Section of the Federal Practice Manual for Legal Aid attorneys.

  • An ongoing meeting to create collaboration between parties, define the scope of the investigation, discuss requirements, and agree on a range of eDiscovery protocols
  • This is not a “one and done” meeting. At this point, you will not know your data well enough to provide a full report.


Deliverables Include:

  • Scope Definition: Report to the court of the definition of potentially relevant
  • Discovery Plan: One for each party (Link)
    • Discussion of the points mentioned thus far in this document
  • Preservation Requirements
  • Clawback Agreement
  • Protective Order Designations
  • Production Protocol (Link)



Document Review Checklist and Legal Discovery Software Tips

At this point you should be well-equipped to start your review, Keep in mind that 60-70% of the total cost of an eDiscovery project will come during the review process due to both the hosting of data in a document review platform and from payroll and/or vendor service fees. It is crucial then to always keep in mind at the early stages of your project what the downstream costs will be in terms of review, including multiple levels of review, QC steps, QC personnel and additional post-production review for further case development.


This section is intentionally broad. Becoming an efficient reviewer has to do with the workflow and click stream of your particular software solution. This is not a how-to software guide, but keep in mind the following themes.


Some steps to consider during review in order to maximize savings and organize your data are:

  • Assign Protective Order Designations (PODs) if relevant.
  • Responsive: Decide if the document is responsive
  • Assign marks
  • Outline: Decide if the document fits in your case outline
  • Assign a QC policy: Who is going to conduct quality control on the review decisions that were made? Avoid repeat reviews or in-camera review.


eDiscovery Analysis Checklist

In the original EDRM model, the term “Analyze” referred to the ongoing process of understanding your data.  At that point in time, it was primarily a manual process and was mentioned in conjunction with early case assessment  and also as a standard function of the Review process. But over time, more sophisticated analytics tools have emerged and this concept has drawn more attention as an ongoing way to increase productivity.


In contrast to the modular setup of the EDRM, we believe that you should take steps to understand your data at every step of your eDiscovery project. Rather than confining you to a specific workflow stage as the correct time to learn more about your data, we provide actionable steps so that you can develop a realistic mindset of continuously adjusting your expectations and refining your workflow.


These steps include:

  • Data Assessment - How to understand your data
    • After you process a collection of documents
    • Continuously as you perform your review
      • Metrics - detail the size, file type makeup, custodian makeup and general organization of different collections
      • Use QC Search to get a quick overview of a randomized selection of content within a particular collection
      • Timing: A post-processing and review analysis of your results
      • Broad Strategies: How to analyze broadly
      • Specific Strategies: Analytic steps to understand the type of data you have collected
  • For Email:
    • Who to Whom: View the most common email correspondence
    • Thread Visualize: See how email threads connect and diverge with CCs and BCCs
    • Review the content of each PST such as: data volume, number of emails
  • For Documents:
    • Review reports regarding the number of documents of each extension type
  • Gap Analysis:
    • Date histogram - see if the volume of documents from specific dates and date ranges matches the story you expected
  • Content Analysis
    • Fact Finding
    • Search Enhancements
  • Project Management
    • Litigation Readiness
    • Process Analysis
    • Budget Tracking
  • Settlement Analysis
    • Ongoing analysis helps you be aware of key documents which may influence your settlement strategy
    • This includes documents which can either benefit or hurt your client
    • Smoking guns, which are rare, still do exist and can greatly influence settlement strategy.
  • Quality Assurance
    • Testing
    • Documentation


eDiscovery Production Checklist

The production of ESI continues to present significant challenges in the discovery process. FRCP Rule 26(f) posits that the method and format of production shall be included in the discovery plan. Be sure to specifically discuss preferred loadfile formats and test a sample set before proceeding to import a significant amount of data.

Production Protocol: Review your production protocol report from your 26(f) conference

  • Format: What was the agreed-upon production format?
    • Native
    • TIFF
    • Plain
    • With extracted text & load file
    • PDF
    • Proprietary DB formats
  • Privilege Log
    • Save in a separate file?
    • Review by the judge or discovery master?
  • Redaction Log?
    • Reviewed by the judge or discovery master?
  • Test A Sample Loadfile: Agree and test a sample data set from either party by importing a loadfile and aligning relevant fields
  • Privilege Protocol: Agree on how you will handle privileged documents
  • Redaction Protocol: Agree on how you will handle redactions
  • Document Delivery Method
    • FTP
    • Available on a website or file share
    • Portable hard drive or dvd
  • Scheduling and Communication: Plan out details for communication between parties
    • Rolling productions
    • What is the timeline? What are the deadlines?
    • Who will answer technical questions? Involve vendor or consultant?
    • Who is validating the productions that came in? IT? Consultant? Attorney?


Case Strategy and Project Management Checklist For eDiscovery

A comprehensive strategy will be the single greatest factor in controlling your litigation. It should be dynamic, flexible and reviewed periodically.


Strategy Is Always Case-Specific

    • Ask More Specific Questions during the client consultation once you understand the basic facts of the case.
      • FRCP
      • Local rules
      • Rocket Docket
      • State cases
      • Your strategy begins when a complaint is served
      • Scope of the complaint
      • Type of case
      • Venue
      • Time frame and deadlines
      • Potential witnesses
    • Type Of Data: Databases? Financial documents? Email?
    • Mandatory Arbitration: Is the case subject to mandatory arbitration?
    • Agency Process Required: Is there a federal or state agency that needs to be brought in?
    • Litigation Risk Assessment (See Risk Analysis)
    • Co-Counsel Strategy: How will you divide things up? Whose protocol will you follow?
    • Project Management Strategy - What is your review workflow? Who handles the documents? Who makes which decisions?

Rule 26(f)(3) (C) Discovery Plan

    • What are the deadlines? Do you have the resources and eDiscovery expertise to meet those deadlines?
    • Will you conduct eDiscovery in-house or outsource to a service provider?
    • Which eDiscovery software/vendor will you select?
    • Around how much data are you expecting to collect?
      • Further discussions about the data
    • Follow EDRM steps as outlined in this document

“Soft” Issues

    • Public benefit
    • Groundbreaking litigation
    • Social issues


Risk Analysis

During the eDiscovery process, you will need to balance eDiscovery cost with risk. To avoid the risk of sanctions, you will need to know your eDiscovery related requirements and put together the necessary budget to meet, and go behind those obligations.


General Considerations to Manage Risk

  • Client Risk: Cost of legal defense – risk of sanctions
    • Litigation Finance - Litigation Insurance
  • Attorney Risk: Risk of DIY vs the Risk of using vendors
    • Malpractice and E&O Insurance
  • Security Risks: Loss of Privilege or your entire practice
    • Cyber Security insurance


Know Your Requirements


Duty of Technology Competence

ABA Model Rule 1.1 has been adopted by 34 of the states and proscribes a mandatory ethical duty of competence.

Comment 8: To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.


Cost Vs Risk

Avoiding all possible costs and ignoring obligations may lead to sanctions. There is a minimum and reasonable set of costs required to meet obligations. More recently, these costs have decreased and eDiscovery has become more accessible for small and medium sized firms.

On the other hand, meeting obligations does not require 100% accurate eDiscovery. 100% accuracy could call for a double review, or double the data collection which only places more burden on the review team and increases costs for the client.

Cost vs Risk


Risk of Sanctions

  • Preservation Deficiency
  • Inadequate Searches
  • Delays in Production
  • Failure to Produce


What are steps you should take to meet and go beyond your requirements?

  • Preservation: Issue a litigation hold to prevent spoliation of potentially relevant data
    • What other data policies and procedures exist?
  • Collection: Collect and process a defensible amount of potentially relevant data
  • Review & Production: Invest a defensible amount of reviewer hours to produce responsive documents while not producing privileged documents


Manage Legal Risk Across the Entire eDiscovery Process

  • Project Management: Who is the managing attorney in charge of making sure all reviewers are briefed on the claim?
  • Audit Trail: Have you created an audit trail and logged all important actions?
    • Moving data sets from one platform to another
    • Assessing data for privacy issues
    • Working with outside vendors - Who had possession of the data? Who completed each action?
  • Privilege Log: Did you properly maintain a privilege log?
  • Keyword Analysis: Are your keyword list and filter criteria too narrow and not properly identifying all relevant documents?
  • Risk Adjusted Bulk Marking: Have you made any sweeping decisions to quickly reduce data volume? Were those decisions defensible?


Manage Legal Risks Related to Security

Law firms are among the top target for Ransomware attacks. Ransomware is a type of malicious software designed to block access to a computer system until a sum of money is paid. Even when a firm pays the sum, there is no guarantee that data will be returned and protected. One recent malicious attack has involved posting the name of the attacked firm on a public website, asking for $1 million to remove the name from the site and return the data. When the firm paid the sum, the attackers asked for another $1 million or they would release the data. There are several important measures we recommend to protect against such attacks.

  • Consider Using a Hosted Platform
    • Check Contractual Security Obligations - to ensure risk is outsourced to vendors
    • Indemnification
  • Use a Security Questionnaire to Select a Vendor
    • Two-Factor Authentication
    • Virus Monitoring and Breach Protocols
    • Data Backup, Archive and Deletion Policies




eDiscovery Budget Checklist

FRCP 1 requires matters be handled in a manner that is “just, speedy and inexpensive.” Having a budget will be important for discussions with not only your client but also the Court should issues arise about proportionality or eventual final cost awards.


Budget Considerations Include

Manage Overall Litigation Budget

  • Contemplated Costs - Proposed budget
  • Damage Assessment - What is the risk?
    • Risk analysis
    • Settlement assessment
  • Venue Awards Analysis - What is the best venue in terms of awards for my position?
  • Insurance Issues - Do they have insurance? What are the limits? Etc.
  • Arbitration
    • Is the arbitration mandatory?
    • Is the arbitration binding?


Cost To Insource

Hosted eDiscovery Software Costs

  • Processing Fees
  • Hosting Fees
    • Per GB
    • Flat monthly fee
  • User Fees
  • Pricing Tiers available to reduce cost for large data sets?

Desktop eDiscovery Costs

  • Licensing Fee for the eDiscovery Software itself
  • Hardware costs
    • Consider the lifespan of the hardware
  • IT Costs and time to manage the environment
  • Security Costs associated with managing protocols and risk


Training and Support

  • SLAs - Consider training packages and service level expectations (SLAs) associated with your subscription
  • Capacity and Expertise of Your Team
    • How long will it take to bring the team up to speed?
  • Outsourced Tasks - What tasks may need to be outsourced to 3rd party professional services?
    • Handling “bad data” or bad load files from the opposing party
    • Production setup
  • Ask About Service Offerings - To what extend does your eDiscovery software vendor offer training and professional services?


Costs To Outsource

  • Hourly Rate - What is the hourly rate for different tasks?
  • Not To Exceed - Is there a “Not To Exceed” price per task?
  • SOW - Agree on a conservative statement of work (SOW) to manage expectations
  • Ensure Timely Updates - Ensure that you are notified if the vendor believes they may exceed your budget


eDiscovery Budget Calculators

  • Budget Calculators - Use one that’s right for your case


Digital WarRoom offers Do-It-Yourself eDiscovery software solutions with included training for no more than $10/GB/Month. Our eDiscovery tools cover the EDRM from processing through production.

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