A practical tool for making sure things don't fall through the cracks.
We’ve talked before about the value of team in eDiscovery. Volumes of data, constant changes in technology that clients are using, and changes in the rules and case law require lawyers, project managers, litigation support, paralegals, and other professionals to work together on a matter.
So, how do you keep everyone on the same page with the work that has been and needs to be done for discovery on a matter? Many years ago, I started using a discovery report. A discovery report is a working document that everyone can contribute to and someone maintains to provide a single source of information about the various stages of discovery.
As members of a team, whether lawyers or other professionals, our focus for a matter can change on a daily basis. One day we are focused on one issue, the next day preparing for the custodian interview or deposition of a witness. Everyone on the team has different responsibilities, and no one always knows what the other person is doing. There are many things that need to happen in tandem, and I see a lot of details that are gathered not be leveraged because they aren’t communicated. We bridge that gap with the discovery report.
The purpose of the report is to give everyone currently on the team or who may join the ability to get up to speed (or back up to speed) with where things are quickly. It saves a ton of time in the long run.
What does the report look like? It will vary depending on the types of matters you have and how your team operates, but here is a generic overview of the general information that we include:
- Report Basis. This is a short outline of the scope of the report and its purpose. When writing, pretend someone who knows nothing about the case is reading it.
- Case Summary. Just like it sounds. I focus this section on the allegations that are the key ones for the litigation, and I define the key parameters for discovery including the date range of the time involved, the key locations for the client, and whatever makes sense to give an overview of the case. In some instances, it’s details about IT system changes that are implicated. In others, it can be that EU privacy laws are triggered. Depending on the complexity of those issues, they may be separate sections to draw attention of the reader. I often include a write-up of the claims in the case too, because it’s a short, concise summary for people who are not as completely focused on this matter as you are everyday.
- Preservation and Legal Hold. Breaks out the scope and efforts of preservation and steps taken on the legal hold process. Exhibits to the report will include the legal hold list, dates for responses, etc., to track all of that. I cannot tell you how many times in a case we have to revisit whether someone was on legal hold, and if so, when. Be sure to include exit information (when someone leaves the company) as well, and reference the exhibits that are relevant. Providing links to the exhibits is also very useful. Make it EASY to understand and get an overview quickly.
- Discovery Status. This is also very case specific and lays out what overall work has been done at a high level on the various stages of identification, collection, processing, searching/culling, use of CAR or TAR, etc. We also include any work done with third parties here.
- Issues Requiring Follow-Up and Assignments. This is a key section that we put close to the front of the report so it’s in your face. I like to break this section into specific witness follow-ups and IT-related follow-ups. Follow-ups might include references to specific types of data that may be relevant but have not been collected, other reach-outs to be made for collection, and specific tagging or coding issues for the document database. Anything that needs a follow-up goes in this section, regardless of category. Make one up that fits.
- Data Identification and Collection. Outlines all steps taken for identification and collection, as well as any trouble spots. This should include social media collection and access information for those collections (if on a third-party service) and how social media is handled. Mobile device management here is also key — if you determine that there are no mobile devices to be collected, list your reasoning as well. That may be important later on.
- Witness Summaries. Written up by custodian, job title, entity with date of the interview, who was present, etc. The purpose of the interview write-up is to provide the background on the individual AND how that individual fits into the matter. I like to flag custodians who are likely to be deposed, so that we can set up a special flag for documents into a deposition notebook in the review platform. For each witness, you should include a specific sub-section on Sources of ESI and document collection of each source in terms of date collected/received, date loaded, and total volume. We organize witness summaries by organization and by any other parameters that make sense for that matter — department, team, claim, etc. This will be the bulk of the report.
- Any additional information that is not by custodian. This can include additional collections, database reports, or other information. You may want to have a breakout list of the legal team involved with all of the key contact info, including service providers. Remember the goal is all the info in one place.
- Review. We like to keep a documented area in the report about how review was conducted for a matter, what went well and what we could have done differently and why. It’s a good start to the wrap-up of a matter with a client, and it provides a basis for your debrief as a team. Your review metrics can also go here, and then you can take those metrics and create client wide metrics for review that you can use for budgeting. See how it all comes together?
Your discovery report can be five pages or 50 — it all depends on the complexity of the matter. I suggest drafting the witness interview notes for the report as soon as you complete the interviews to have the most accurate write-ups possible, and you’ll be able to revisit them that way too. Remember, this is working document that gets updated every month or so, and strategy can change if you go to ADR or into full blown litigation.
One more tip — use headers and other features in your word processing tool that let you auto-generate a table of contents for the beginning of the document. Not everyone needs to read every section, so make it easy to jump to what they need. Make the sections on the TOC hyperlinked.
The discovery report means you have one place to find all the information you need when you have to support the decisions you’ve made three, six, nine months, or even years ago. It’s an investment on the front end that will pay off in spades later. And remember how we keep talking about metrics? Gathering the statistics for your discovery report will allow you to compute your metrics for the matter quickly and have them on hand for the client.
Ready to get started? I’m sure you have a case right now that could benefit from a discovery report, so start writing. Shoot me your questions and I’ll be happy to help.
On another note, if you’ve got something new and different that you’re cooking up for LegalTech at LegalWeek, drop me a line. I’d love to hear about it.
Kelly Twigger gave up the golden handcuffs of her Biglaw partnership to start ESI Attorneys, an eDiscovery and information law Firm, in 2009. She is passionate about teaching lawyers and legal professionals how to think about and use ESI to win, and does so regularly for her clients. The Wisconsin State Bar named Kelly a Legal Innovator in 2014 for her development of eDiscovery Assistant— an online research and eDiscovery playbook for lawyers and legal professionals. When she’s not thinking, writing or talking about ESI, Kelly is wandering in the mountains of Colorado, or watching Kentucky basketball. You can reach her by email at Kelly@ediscoveryassistant.com or on Twitter: @kellytwigger.