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ESI Discovery Best Practices, Part 2 – So How Do You Identify ESI?

My last blog generally addressed the rules applicable to Electronically Stored Information (ESI) best practices. Now, having briefly identified those rules, I want to turn to identification best practices.  With ESI identification, the primary goal should be to identify the potential sources of responsive data and build an e‑discovery team.  To do this, you first have to determine what data must, under the law, be preserved.  Next, you must identify and interview key players (but keep in mind that this does not necessarily mean ignoring non-key players, for example, other employees who may have had some involvement with the issues raised in the litigation, but were not “key” players).  Next, establish a relevant time frame, through review of pleadings, discussions with opposing counsel and/or client consultation.

When discussing the key groups, keep in mind that I place them in two categories.  The first group is individuals with substantive information about the dispute.  These are going to be employees who were involved in the issues in dispute in the litigation (or anticipated litigation), as well as possibly former employees.

The second key group will be what I refer to as “source” individuals.  These are individuals usually in IT or IS roles or record management personnel.  These individuals will have information regarding sources of data and the processes affecting those sources. These individuals can also help identify devices that may contain relevant data.  Some are obvious, such as work computers, work PDAs or smart phones, but some are not so obvious, such as home computers, a spouse’s computer, off-site or cloud based servers, and the like.

The above is what I refer to as a data collection plan – where you design an approach to locate responsive ESI, locate and identify custodians, source individuals and computer systems and determine file types and media involved and quantity.  Related to this is an important factor to make note of any relevant data that have already been destroyed, when, how, by whom, and why.  You should also be aware of “legacy data”.  This is data created or stored via obsolete or replaced hardware or software.

This blog offers just a brief, general discussion of ESI identification best practices.

A. David Fawal