eDiscovery Checklist: Trial Attorney eDiscovery Planning

This checklist offers practical advice on how trial lawyers can obtain the evidence they need to successfully build their case and effectively advocate for their client.

Trial Attorney eDiscovery Planning

Judicial Advice on On Meeting your Rule 26(f) Obligations

Our recent webinar, Avoiding Spoliation Sanctions in 2017 Under the New FRCP Amendments, featured the honorable Judge Xavier Rodriguez, a United States District Judge for the Western District of Texas. One of the questions we asked Judge Rodriguez was “Are judicial expectations shifting as to what the parties should accomplish in early case conferences and the scheduling order before discovery commences?” He offered some valuable insight into what best practices he is seeing from the Rule 26(f) meetings and which elements are still missing.

Rule 26(f) obligations have been the source of much confusion and hand-wringing. There are several key agreements which must be met during ‘meet and confer’ sessions early in the case, which at a glance can appear daunting. Proactive approaches to the challenge are best.  With the sheer amount of electronically stored information (ESI) exchanging hands in a complex case today, and the possibility of some ESI to be not preserved, damaged or lost, Rule 26(f) forces us to do the necessary work early in the case, rather than waiting for problems to arise.

We wanted to bring you our key takeaways from the webinar on Rule 26 obligations to keep in mind as you prepare for your next document complex case.

    • Schedule your Rule 26(f) meeting with opposing counsel prior to your Rule 16 meeting with your Judge. By coming prepared to your Rule 16 meeting with agreements in place and disputes ready for the Judge to rule on, you can expedite discovery and dispute resolution.
    • Prior to your 26(f) meeting you should survey the probable ESI in your case.
      1. Interview custodians to determine key players.
      2. Each side should work with their clients to determine what document retention policies are in place, and modify as needed.  For example, are there automatic deletion systems that need to be turned off for preservation?
      3. A best practice is to prepare a “data map” of your ESI prior to your Rule 26(f) meeting.  A data map is an inventory of potentially responsive ESI by custodian, device, location and content.
      4. Put an ESI Agreement or protocol in place. Lexbe provides a sample ESI order/agreement/protocol as a starting point. Download it for free HERE.
    • Goals for the 26(f) meeting are to come away from the conference with the following structure laid out, to the extent possible:
      1. Define the scope of the eDiscovery requirements. Identify dates, custodians and places where data may be kept.
      2. Discuss how ESI will be preserved. Will all devices be imaged, or will there be a directed collection? An important consideration here is to consider what metadata should be preserved and transmitted with production.
      3. Who will handle collection?  Possibilities are an outside vendor, company IT staff and custodial self-collections.  What safeguards will be in place depending on the risks with each methodology.
      4. Identify deduplication and culling methods to reduce reviewable documents and ESI.
      5. Set reasonable deadlines for when data exchanges need to happen.
      6. Parties should agree on how they will receive opposing counsels ESI. (Lexbe and many eDiscovery experts recommend that you ask for produced, non-privileged ESI to include files in native format. We offer a checklist on Requesting Production in Native File Format HERE.
      7. Be reasonable and cooperate. Judges increasingly expect all parties to negotiate in good faith, making reasonable requests and offering reasonable accommodations.
    • Write it out.  A best practice is to recap agreements via written correspondence post-conference. Beyond ensuring that you are on the same page with opposing counsel, a written account gives you a defensible position to follow-up in court if needed.
    • Reach out to your judge for a ruling when you need it. Judges expect that you will cooperate and compromise in good faith, but if you truly find yourself at an impasse with opposing counsel you are better off reaching out to your judge early rather than waiting until the last minute.
    • With a substantive, well planned 26(f) meeting, you will resolve potential discovery issues before they arise.

CIOReview Names Lexbe a Top eDiscovery Provider for 2016

top20

Lexbe has been recognized by CIOReview on their “Top 20 Most Promising eDiscovery Vendors of 2016” list. From their website, CIOReview, an enterprise solutions publication, noted that  “eDiscovery technology tools bring transparency and control to the litigation process.”

eDiscovery software options can range from local installations to cloud based services. Lexbe’s SaaS model gives clients total control over their ESI (electronically stored information), empowering firms and organizations to completely self administer their eDiscovery process and interact with their data directly. Our expert eDiscovery specialists are available as needed, giving clients the option to access support when deadlines loom near and keep costs in check when their internal staff is able to manage the process themselves.

You can see all of CIOReview’s selections for top eDiscovery Software providers on their site, here: http://legal.cioreview.com/vendors/most-promising-ediscovery-technology-solution-providers-2016.html

Lexbe Platform Update: Bates Stamping and Production Preview

Lexbe’s innovative doc viewer gives you the power to instantly toggle between all instances of your document, from native through produced versions. Our engineers have updated this screen to include several enhancements, making this already robust tool even more powerful. As always, these updates are instantly available – no need for your IT department to deal with a cumbersome software upgrade. A brief overview of the updates:

New Tabs

  • Produced – allows you to view the selected, produced version of the PDF, with bates number
  • Redacted – view the document with current redaction in place.
  • Translated – the current document with any foreign language translated to English, for your review.
  • Annotated – view your document with notes and comments visible.

Bates Stamping

When you are viewing your produced document PDF in the Lexbe platform you will now be able to see the Bates Number stamped in the lower right corner, as you would see it if the document were printed. You no longer need to download the document, the bates stamp is visible instantly, on screen.

tabs-and-bates-samping

Drop Down Production List

If a document has been produced more than once this drop down menu will appear at the top of the page, allowing you to easily toggle between the productions. Each produced version of the document will be noted with it’s Bates Number and the date of production in the title. This is an indispensable tool for any complex litigation where you run more than one production.

drop-down-productions

Profanity and Obscenity Search Tool Released

George Carlin’s famous 7 dirty words, apparently, do not apply to today’s modern workforce. While television censors gagged Carlin’s list, work emails and texts receive no such censorship. Even Carlin might be amazed by what otherwise intelligent people include in their business correspondence.

You cannot afford to miss inappropriate language in your eDiscovery document review. Profanity in off-color emails or text messages can discredit even the strongest witness. With any eDiscovery search you will want to zero in on those documents where the writer’s tone suggests urgency, misconduct or emotion. Profanity is a good indication of stress or impropriety, so including obscenities in your keyword search should be de rigueur for most cases. In some cases (like employment discrimination) pervasive profanity and obscenity can drive case outcomes.

Based on our experience, Carlin’s ‘seven dirty words’ are not nearly enough to address usage in modern commercial cases. So we’ve preloaded a comprehensive list of 700 profane and obscene terms and phrases, to make your profanity search as comprehensive and as easy as possible. Let us know if we’ve missed any that you know!

Lexbe has built a Profanity Search Tool integrated into our platform so that you can run a comprehensive search and pull all of those documents into one file quickly. With over 700 terms there is a good chance our search tool will out perform even the most creative among you. Carlin would be impressed.

You can read more about how to launch this tool by reading our technical note on this feature by following the link below. Our team is always available for a quick demo, so if you would like to see the Profanity Search Tool in action, contact sales@lexbe.com.

Technical Note: Profanity Search Tool>

Note: The Profanity and Search Tool is available only for Lexbe customers who are practicing U.S. attorneys and legal professionals, over the age of 18, for use in connection with legal document review.

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