In eDiscovery, we tend to focus most of our attention internally, on our own electronically stored information (ESI). This makes sense because the data is under our control, and if we cannot get this work done properly, we significantly raise the risk (and cost) of handling eDiscovery.
But what about the other side – what should we do when the other parties in litigation produce their ESI to us? This is an issue that seems to be discussed very little. Most companies just have their outside litigation counsel handle this data – but that’s what most of us did just a few years ago with our own ESI. For companies using an eDiscovery solution for in-house collection and early case assessment, shouldn’t there be a matching process for the data received from other parties?
ACA – Adversary Case Assessment
There’s a lot of value that can be derived from analyzing the other side’s ESI, especially when it is juxtaposed against our own data. If you plan ahead in your eDiscovery process, you can insure that you’re able to “view” the data in a few different groupings – your data; their data (by party if there’s more than one) and together. Let’s look at some of the leverage that we can get from using our in-house solution in this manner.
File types. How many different ESI file types did the other side produce? In most cases, you should expect a good mix of email, spreadsheets, “productivity” files such as Microsoft Office, Excel and Powerpoint, image files (e.g. jpg/gif) and maybe even various log files, possibly in text form (.txt, .log, etc.). You might probe a little more deeply: did they produce any NSF or PST files (the local caches of email that many users keep on their desktop or fileshares)?
If you didn’t receive at least a few items representing these file types – why not? There may be good reasons – you may have agreed to limit eDiscovery, maybe none of those file types contained relevant information, etc. But ask the question – first of yourself, and then, if necessary, of the other side. In many cases, parties frequently focus on email – largely ignoring laptops, fileshares and other repositories of relevant information. Also, because these files are frequently produced as attachments to emails, it may give the appearance that these repositories were searched. Thus, run another filter check — are the non-email items just attachments to emails, or were they produced on their own?
Volume. Overall, does it seem like a fair amount of ESI that’s been produced, i.e. does the number of items seem right? Again, this will vary greatly from case-to-case but you should have a good idea of how much “stuff” you are receiving. Back in the paper days, we might question the other side if we produced a warehouse of boxes and they sent us a slim manila folder. How does their production compare to your production? Better yet – start to filter the produced ESI by custodian. Is there a significant amount of information produced from key players? How does it compare to your key people? Interactive charts and graphs can go a long way here in helping you to understand what you’re seeing.
Date ranges. Take a look at the date of the information and see how the volume of information varies over time. Email will normally be grouped by its date, but files could be grouped by date of creation, modification or last access date. Is there a high volume of information during the time that you would expect to be most relevant? What items, in each file type category, are the oldest and most recent by date – and does that fit announced data retention policies and the scope of eDiscovery? Do the dates and volumes fit with your understanding of the case? Do this work first by using filters to exclude your data, and then include your own for a second review. How much does that change the picture, if at all? Does the other side seem to think that a different range of dates is more important than you did?
Email Domains. Look at all of the email domains (e.g. emc.com, cnn.com, espn.com) that are represented in the production as either senders or recipients. Are there any “new” companies of interest? Maybe there’s a third party show in email that could have important information available by subpoena. Did the other side include any information sent to or from their law firm? If not, was every item really privileged — and did they produce a privilege log?
Email Threading. Because of its nature, email can be “threaded” into conversations so that you can view a nicely ordered chain of emails that has gone back and forth between parties. Even one or two message “side conversations” became very noticeable when a group of emails has been properly threaded. Using your own key email messages as a starting point, thread the messages to include the other side’s production. Are there new “back channel” or side conversations that the other side held internally, which you never saw? Were key messages re-forwarded well after the fact – say weeks or months later as “reasonable anticipation of litigation” began to occur? Did you receive another copy of emails representing conversations with the other party (which you already produced) – or did they not produce those messages (and if not – why not?).
These are just a few very basic ideas of how you can begin to evaluate the other side’s ESI production. Leveraged properly, in-house eDiscovery solutions can be another powerful tool for corporate (and law firm) counsel to rapidly get their arms around a case and begin to evaluate the other side’s production, too. Happy ACA-ing!