This is so important that the American Arbitration Association (AAA) recently released a set of “E-Discovery Considerations for Construction Arbitrations” in conjunction with the National Construction Dispute Resolution Committee (NCDRC). The purpose of the paper is to “highlight for arbitrators and parties the need to actively manage the ediscovery process” to achieve an “efficient and cost-effective dispute resolution.”
When you collect documents, emails, images, and files from your client, you have to store them somewhere. Regrettably, many firms simply copy them to a local server, or a cloud-based storage service such as Dropbox, or even their own computer. These are lax and risky workflows unless your firm has instituted security best practices, can track access logs, and can defensibly ensure no ESI is modified before production (see Consideration #5 on document preservation). Not to mention that these basic storage approaches don’t give you the ability to search, filter, and sort files, nor can you tag items for relevancy and privilege or indicate their use for a witness. It’s crucial to use the right tool for storing, reviewing, and producing ESI, as it will become the foundation for your defensible ediscovery workflow.
As the AAA report states, “Ineffectively managed ediscovery is a potential source of cost, burden, and delay. Because construction projects typically involve large volumes of records and data, managing ediscovery demands a careful balance between efficiency and economy on the one hand and providing the parties a full and fair opportunity to present their cases on the other.”
Here is a breakdown of some of the key themes from the AAA guidelines along with specific tips and tools to help you follow them properly and practically.
Consideration #1: Cooperation – Zealous Advocates Can Still Cooperate
In 2008, The Sedona Conference (a think tank on ediscovery issues) released the idyllic-sounding “Cooperation Proclamation,” which provided recommendations for achieving the goal of a “just, speedy, and inexpensive determination of every action” (Federal Rules of Civil Procedure 1). That goal is echoed in the first ESI Consideration from the AAA guidelines, which states, “Zealous advocacy is not compromised by conducting discovery in a cooperative manner.” Being willing and able to discuss the logistics of collecting, reviewing, and producing ESI with opposing parties is the first step in effectively managing the cost and potential burdens involved in ediscovery.
Federal Courts require a “meet & confer” between the parties where they discuss a number of topics, including the sources and types of potentially relevant ESI, as well as how the parties will produce files to each other. While there is typically no such requirement in arbitration proceedings, the AAA guidelines offer Consideration #3 – Initial Assessment and Planning, where the parties are encouraged to meet to “discuss the necessity of ediscovery” as well as the scope of such discovery. Consider using a Meet & Confer eDiscovery Checklist that provides tactical guidance for discussing and negotiating ediscovery with opposing counsel.
Consideration #3 also encourages the parties to “memorialize their agreements regarding ediscovery in a plan or protocol that outlines the types of ESI considered relevant, the timeframe for document production, and the methods for exchanging documents.” This “ESI protocol” is an indispensable instrument for avoiding unnecessary delays and costs around discovery in construction disputes, but unfortunately, it’s often overlooked or ignored. The AAA guidelines provide a helpful ediscovery checklist and ediscovery protocol template. An ESI Protocol eDiscovery Checklist can help you develop a protocol for your practice. Once you have a standard ESI protocol in place, it’s easy to edit and adapt it for different matters.
Consideration #6: Collection and Processing – Choose the Right Platform to Securely Store ESI
As you work with your client to collect the data that will help you tell their story, you must collect it all “in a manner that preserves the integrity of the electronic information” (Consideration #6) and you must store the ESI in a secure location that prevents modification of the evidence. Most storage locations at law firms (e.g. servers, cloud-based storage services, etc.) are designed to host and manage your internal work product, but they are not the right tool for protecting electronic evidence. Fortunately, there are ediscovery platforms that are specifically designed to secure electronic evidence and provide precise tools that allow you to sort, filter, search, and tag evidence, separate from your work product. For example, your personal Microsoft Outlook is designed to manage your communications with colleagues and clients, but it is NOT an appropriate tool for reviewing and producing emails collected from a client (see “eDiscovery with Outlook: 3 Reasons Why Outlook is NOT a Document Review Tool”).
In the processing stage of ediscovery, the collected ESI is typically converted into a reviewable format while still preserving the original files. For example, when you import collected ESI into a document review platform, the original files are always available for download, but the reviewer sees a simplified, imaged version of the file for quicker review along with tools to redact text and place additional annotations. These platforms also filter out irrelevant or redundant files during the processing stage for a more streamlined review, although you can always access the original files if necessary.
Consideration #8: Production and Exchange – A Smooth Handoff
The end goal of a successful ediscovery project is an effortless production of relevant ESI from one party to another. If you’ve discussed and agreed upon an ESI protocol, then you already know the “form or forms” (see FRCP 34) your production will take (e.g. native files, PDFs, TIFFs, etc.). However, you will be severely limited in which production formats you can generate without a proper ediscovery tool. Using an ediscovery platform to narrow down your production collection (e.g. all documents marked “relevant” but not “privileged”) gives you the industry-standard options for creating a production set that follows the agreed-upon parameters.
You also want to ensure your clients’ data stays in the right hands after the production has been shared. Several ediscovery tools offer secure file sharing options to minimize the risk of unauthorized access to production sets.
There are many more helpful best practices in the AAA “E-Discovery Considerations for Construction Arbitrations,” and we certainly encourage you to read through the guidelines to be better prepared for your next ediscovery challenge. Consider using an ediscovery vendor to assist you in accurately following these ediscovery considerations.
Additional Resources:
eDiscovery Collections eGuide: The Definitive Guide to Managing Modern Data Collections
Strategic Document Review eGuide: Your Complete Guide to Reviewing Electronic Evidence, Protecting Privilege & Winning Discovery
Winning the Meet & Confer eGuide: How to Set Comprehensive Ground Rules for eDiscovery
Brett Burney is the VP of eDiscovery Consulting at Nextpoint Law Group and a widely recognized authority on the complex ediscovery issues facing litigators today. In addition to consulting with corporations and law firms on their data management and legal technology issues, Brett is a journalist, podcaster, speaker, and author. Brett can be reached at bburney@nextpointlawgroup.com.
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