Since the Federal Rules of Civil Procedure (FRCP) made electronically stored information (ESI) discoverable in 2006, eDiscovery has gained significant influence.
eDiscovery has become an integral component of litigation. But for enterprise legal teams, eDiscovery has evolved beyond its primary applications: now ediscovery technologies and workflows are employed to ensure compliance, reduce risk, manage internal data, conduct early case assessment, and address regulatory inquiries.
With such a broad and important scope for organizations, legal teams must also be aware of the potential pitfalls of eDiscovery and how to avoid them. This awareness can empower them to manage risks confidently, ensure smoother litigation processes and reduce surprises.
Common eDiscovery Mistakes Legal Teams Make
In-house legal teams are the primary custodians of risk, compliance, and litigation management. But the eDiscovery landscape, even just within the FRCP framework, is complex and subject to change. Keeping pace with the evolving compliance landscape, new risks, diverse ESI types, and the ballooning volume of data coming from digital tools is challenging—and mistakes can be made.
Here are the most common eDiscovery mistakes legal teams make:
1. Incomplete or Lost Data
Data is the cornerstone of eDiscovery. In most cases, this data is generated from a variety of sources in the business: social media, websites, enterprise collaboration tools, document sharing services and so much more.
The biggest mistake that enterprise legal teams make in regards to this data is not keeping accurate, complete records.
There are several reasons why this is such a significant challenge for legal teams.
First, the scope of ESI is nearly impossible to define. According to Rule 34(a)(1) of FRCP, it comprises "any type of information that is stored electronically” and “stored in any medium.”
Since the federal rules of discovery apply to ESI (though some exceptions exist), legal teams must preserve relevant ESI when there is reasonable grounds to expect litigation.
It may sound simple, but the reality of preserving “relevant” ESI is challenging because of how difficult it is to predict which data falls into that category. Then there’s the additional complexity of having data storage siloed across various tools and systems.
Second, the volume of ESI produced by the average enterprise organization is enormous. On average, every person on earth generates 1.7MB of data per second per day and 402.74 million terabytes of data is generated every day.
The amount of data generated annually has exploded since 2010.
It's estimated that:
- almost 250 million emails are sent every minute
- 150.62 million hours are spent on Zoom every 24 hours
- Stored data is growing 5x faster than the world economy
- 90% of the world's data was generated in the last two years alone
- By 2025, over 80% of organizations anticipate managing zettabytes of data, yet 36% admit they won't be able to handle it all.
This does not even account for data received by organizations. As one can imagine, preserving what’s relevant to a probable litigation or compliance enquiry involves managing significant volumes of data and can become very costly.
It is equally common for organizations to lose track of important data due to negligence, siloed storage, routine data deletion policies, etc. Sometimes, messaging applications and collaboration software can auto-delete or overwrite data, adding to the challenge of keeping complete records.
2. Improper Data Retention and Legal Hold
There is no specific timeframe for ESI storage under the FRCP. Data retention timelines and the scope of legal hold are subject to an organization’s internal policies.
Defining and enforcing clear legal hold policies is crucial, as they help prevent data spoliation and ensure organizations meet retention requirements, reducing legal risks.
A non-existent or ineffective data retention policy can lead to failure to meet a request for production of documents. Such failure is subject to legal sanctions under Rule 37 of the FRCP. Additionally, federal courts can also issue an adverse inference to the jury.
Not putting ESI relevant to ongoing and probable litigation on legal hold can compromise the organization’s legal standing in court.
3. Inefficient Search and Export Processes
Responding to requests for production, litigation or regulatory inquiries is a time-sensitive process. That’s why being able to locate specific data or records and export them efficiently is essential to ensure compliance and avoid fines.
In-house legal teams often struggle with manually locating specific data or records. However, adopting eDiscovery and recordkeeping tools with advanced, cross-platform search functionality can streamline processes, reduce delays, and improve compliance.
Unfortunately, by the time most legal teams get around to putting their ESI recordkeeping and eDiscovery processes in order, they run into litigation or regulatory inquiries that expose gaps and increase risk of sanctions and adverse legal rulings.
Notable eDiscovery Cases from the Past
One of the first notable cases of eDiscovery, following the 2006 amendments, was that involving Laura Zubulake and UBS Warburg LLC.
The plaintiff, Zubulake, accused the defendant of gender-based discrimination and wrongful termination. She requested the production of emails relating to her, stored and archived by the organization. However, the defendant declined, citing an estimated $175,000-$300,000 in retrieval expenses.
But the court concluded UBS Warburg failed to preserve and produce relevant ESI. It granted Zubulake’s motion for sanctions and gave the jury an adverse inference injunction. Additionally, the organization was instructed to reimburse the plaintiff for the cost of the motion. The jury found in the plaintiff’s favor, with compensatory and punitive awards totaling $29.2 million.
This case is just one of many that deal with the pitfalls of eDiscovery. But it demonstrates that eDiscovery compliance is mandatory for organizations and failing to meet eDiscovery demands can cause reputational and financial damage.
Best Practices to Avoid eDiscovery Pitfalls
A consolidated approach that incorporates policies, tools, and management practices can help enterprise legal teams manage eDiscovery while also balancing other responsibilities.
Here are some best practices to get started:
1. Implement Real-Time Digital Archiving Solutions
Identifying, collecting, preserving, and producing ESI is the purpose of eDiscovery, thereby making digital archiving a foundational component. Archiving facilitates eDiscovery by:
- Preserving relevant ESI in a legally defensible format so it is litigation-ready.
- Providing centralized, accessible records as opposed to siloed data that needs to be fetched and translated by IT departments.
- Reducing the cost and effort in manual eDiscovery.
- Mitigating risks and managing recordkeeping compliance
Digital archiving is a prerequisite for enterprise legal teams to fortify their eDiscovery efforts. Tools that automate the digital archiving process across unstructured data sources like websites, social media and enterprise collaboration tools, can be helpful in this regard. Capturing data in real time ensures that no critical piece of digital evidence is missing when it’s needed the most.
2. Enable Search And Defensible Exports
Early case assessment is critical to successful litigation and eDiscovery. For enterprise legal teams, quickly locating and exporting relevant records expedites internal reviews and production.
Advanced, cross-platform search capabilities allow for:
- Locating all records pertaining to specific keywords, regardless of data source.
- Narrowing the scope of inquiry to specific users, accounts, data sources or dates
- Reviewing records in context to determine relevancy without expensive exports
In short, it improves efficiency and boosts accuracy. Legal teams can combine that with defensible exports to foster competent eDiscovery.
3. Monitor Data Sharing and Access
Legal teams need to be able to monitor data leaks and who has accessed specific data in order to prevent threats to the organization. This includes keeping access logs and being alerted to inappropriate or sensitive content when it is shared.
4. Automate Retention Schedules
Automating data retention and deletion with digital archiving tools has many benefits, including:
- Ensuring recordkeeping requirements are met.
- Reducing data retention costs by disposing of ELSI that is no longer needed.
- Freeing up the bandwidth of legal, IT, and administrative teams from labor-intensive manual archiving tasks.
- Allowing legal teams to override retention schedules with legal holds
Avoiding eDiscovery Pitfalls
Effective eDiscovery is evidence of the competence of enterprise legal teams. Streamlining eDiscovery and avoiding the pitfalls discussed here can bring enormous benefits to enterprise legal teams.
