Everything you wanted to know about eDiscovery, but were afraid to ask
When you think about eDiscovery, you are probably thinking about review. Review is the phase of eDiscovery where your team will actually discover potentially relevant documents and evidence needed for a matter. A document review distinguishes relevant data from irrelevant data and uncovers information and evidence about the facts and issues of the matter. However, there are important pitfalls to address in review which, if not properly managed, can jeopardize your case, especially around protecting privileged material.
Document review is the act of identifying responsive documents to produce and privileged documents to withhold from opposing counsel. Review is an iterative, learning process, meaning you will need to repeat and refine your work over and over again. Through this process, your team will uncover factual issues in a case and develop legal strategies to pursue based on information that is found in a collection of documents.
Due to the exploding volumes of evidence available for eDiscovery, your team should limit the scope of what needs to be reviewed whenever possible using targeted collection, filtering, and culling techniques prior to a manual review. Other advanced technologies can be used prior to or in combination with a human review to reduce the amount of documents the human reviewers must examine.
In today’s digital world, billions emails, text messages, presentations, database files, electronic documents, and the like are sent and received every day, creating eDiscovery dilemmas for lawyers and judges. Any one of them could be the pivotal document that either builds a case or destroys one.
If there is one case that demonstrates the awesome power of eDiscovery, it is United States v. Microsoft, the infamous antitrust trial that began in the late 1990’s. A key contention was that Microsoft was conspiring against Sun Microsystems. Thanks to the review process, an internal email from Bill Gates surfaced. In it, he asked: “Do we have a clear plan on what we want Apple to do to undermine Sun?” It was a modern-day smoking gun.
A more recent case demonstrates the danger inherent in the review process. The Samsung v. Apple litigation pitted two tech giants against each other in an epic court battle between the world’s dominant smartphone makers. But the case also showed that even the biggest companies can stumble in the face of eDiscovery review.
During document review, Samsung’s outside counsel improperly redacted a sensitive Apple contract it had obtained during the discovery process, a contract that was under a protective order, limiting its use to the litigation alone. The associate then uploaded the contract to Samsung’s internal intranet, where it “went viral.” When Apple found out, sanctions soon followed.
Another example comes from Oracle v. Google, which pitted two more tech companies against each other in a high-stakes copyright dispute. In that case, Google’s famous search abilities didn’t seem to transfer to its document review process. During its privilege review, the company screened out an email that was labeled “Attorney Work Product.” But Google’s review did not catch nine drafts of the same email, which were then produced to Oracle. Worse yet, that email became a key piece of evidence against the company.
As you can see, document review is not a matter to be taken lightly. A well-executed review process can win a matter for your client. But even a well-intentioned review team can make mistakes that can sink a case or expose litigants to a negative inference or even incur sanctions.