Navigating Ediscovery: A Look at Data Mapping
Attorneys are continuing to become more educated regarding a host of ediscovery issues that pose significant challenges, such as preservation, review and production. However, many attorneys are not yet taking the next step towards understanding the computer systems and electronic data at issue as well as the technical intricacies of the ediscovery process itself. First and foremost, attorneys must recognize that they have a duty to understand their clients' IT systems so they can quickly and competently decrease ediscovery response times and prevent ediscovery errors. Mountainous volumes of material can quickly overwhelm and slow the process; thus attorneys must develop smart strategies for organizing evidence by encouraging their clients to create an application inventory and data map.
Application Inventory and Data Map: What and Why?
In order to encourage corporate clients to institute an application inventory and data map, attorneys need to understand what this tool entails. Data maps are essentially outlines of a company's information systems and processes that can help litigators plan and pilot the ediscovery process. In the context of litigation, data mapping is critical to other processes, such as early data assessment (EDA), because it helps build an effective electronically stored information (ESI) collection plan by providing a clear and accurate picture of the project's scope from the beginning.
Too often, litigators faced with massive amounts of ESI find it best to simply "dive right in" and sift through the data as it comes. Unfortunately, the collection and production of ESI can be a very complicated process and most litigators quickly find themselves lost and overwhelmed among heaps of data. Without a thoughtful collection plan, managing the vast amounts of ESI commonly produced in ediscovery can prove to be an insurmountable task. Data maps assist with the creation of collection plans by identifying potential custodians, relevant third parties and specific ESI sources from the outset. Data mapping also allows concerns such as preservation, format and privilege - which are often overlooked - to be properly addressed and integrated into the collection and production process before it begins. Having this information early allows response teams and litigators to create an efficient process by properly allocating resources and assessing the scope and timing of discovery.
Beyond streamlining your ediscovery process and reducing costs, having this information early can also create a powerful strategic advantage over opposing counsel at the Rule 26(f) conference. Ediscovery remains a complex and often intimidating process, so a well-informed, prepared counsel may find itself in an elevated bargaining position capable of dictating advantageous terms and possibly even inducing settlement considerations. Data mapping can also help strengthen pre-discovery inaccessibility arguments by providing credible evidence of undue burden and cost.
Although data maps are critical to creating an effective ediscovery plan from the beginning, they remain important throughout the entire process. Since organizations' technology environments are constantly changing, data maps and the processes to keep them up-to-date must be routinely updated to reflect that change. Periodic updates should intertwine with the technology asset management processes, storage planning, information security assessments, vendor management and other peripheral processes. When applications or systems are retired, information should be included as to where the final set of data will be kept and what the restoration process may require. Properly updating the data map ensures that information which may become important at a later stage in the litigation can be preserved and located expediently.
Avoid Ediscovery Hazards
Responding to large ediscovery requests can be daunting without carefully delineated procedures in place prior to the review and processing stage. Although EDA bridges the gap by helping to reduce costs and increase ediscovery efficiency, attorneys must take the time to understand their clients' IT systems as well. Not understanding clients' IT systems creates unnecessary delays and can lead to ediscovery misconduct if information is inadvertently misplaced or shared. For example, in Qualcomm Inc. v. Broadcom Corp.,1 the plaintiff was sanctioned $8.5 million for "egregious discovery misconduct" for withholding critical information that the defendant sought pursuant to a patent infringement claim. In that case, sanctions were also levied against individual attorneys who had represented the plaintiff. On appeal, the court determined that communication failures between the attorneys and the plaintiff were largely to blame for the discovery misconduct. In addition, the court noted the attorneys failed to educate themselves about the plaintiff's computer systems, including where the e-mails were stored and for how long, how often and to what location laptops and personal computers were backed up. Despite the "number of poor decisions," the court decided sanctions against the attorneys were unwarranted as they did not act in bad faith.2
In another case, In re A & M Florida Props. II,3 the plaintiffs' counsel was unable to escape sanctions for "not understand[ing] the technical depths to which electronic discovery can sometimes go" when the plaintiffs failed to produce 9,500 e-mails, causing "needless costs and frustrations." Just as in Qualcomm, the court made clear that attorneys have an obligation to understand their clients' information systems in order to conduct an efficient and accurate ediscovery process.
Not knowing where data, metadata, files, communications, e-mails, etc. are stored on clients' computer systems severely jeopardizes ediscovery effectiveness and frustrates the judiciary. Creating and implementing a data map can help prevent these problems from arising by providing attorneys with the necessary understanding of their clients' information systems and processes. After all, the ultimate responsibility of ensuring that all relevant information is produced in discovery generally falls upon the attorneys. Attorneys must educate themselves in regard to their clients' computer systems and take advantage of tools that foster greater ediscovery efficiency and effectiveness. 1 2008 WL 66932 (S.D. Cal. Jan. 7, 2008). 2 No. 05cv1958-B (S.D.Cal. Apr. 2, 2010). 3 2010 WL 1418861 (Bkrtcy.S.D.N.Y. Apr. 7, 2010)