Trial Magazine

No matter the case type or size, attorneys are ethically obliged to stay up to speed on electronic information technology. Have your litigation strategies kept up too? Here are a few points to consider when conducting e-discovery.

Do your homework. Before filing a case, find out what electronically stored information (ESI) your client has and collect it. Your preservation efforts will depend on the case, but you at least need to know what you’re dealing with. Develop a checklist that includes questions about email and text message communications; equipment such as computers, phones, and flash drives; and who has or had control over the information.

Tailor your request. The defendant may have complex databases or data that’s scattered among people and devices. For complicated systems and large quantities of documents, consider negotiating an ESI protocol or taking a 30(b)(6) deposition before issuing written discovery. In other cases, your pre-discovery ESI preparation may be as simple as a hold letter with reminders about specific information based on your checklist. In all cases, make sure your request language is updated and specific so you get the ESI in the format you want—not just the way defendants claim it’s stored.

Know when to get help. What’s contained in a ­gigabyte (GB) of data will depend on the file type, but generally, one GB includes 10,000 pages. While large firms may have document review and management software, you may need outside help to examine such a large volume. Options and price models for document review systems vary widely—but most are based on a per user license fee or a per GB cost. All programs provide tools to sort and categorize documents; some are more automated, and some can even provide contract help to complete document review.

We live in a digital world, and the better you can navigate it, the better it will be for your clients.

Tiffany R. Ellis is of counsel to Seikaly, Stewart & Bennett in Farmington Hills, Mich. She can be reached at tre@sslawpc.com.