eDiscovery and Litigation Support

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How to Make the Most of Delaware’s New eDiscovery Rules: Part 3


(Part 3 of 3) Tip #10: Appoint an E-Discovery Liaison: Each party to a case is required to designate an e-discovery liaison through which all e-discovery requests are to be made. The individual can be a third-party consultant, an employee of the part, or counsel.

Counsel should select someone early that knows e-discovery law and technology and ideally is also adept at searching for information. It is advisable that Counsel engage the Client technology team in selecting such an individual because if the person is not technically competent regarding the Client’s specific systems it could cause problems down the road.  A company that finds itself a frequent party to litigation would save substantial money, time and resources by creating a full-time in-house e-discovery liaison.

Tip # 11: Information Searching Training

In addition, the new Default Standard requires that parties agree as to the method of searching, the words, the terms, and the phrases to be searched leveraging the domain expertise of their respective e-discovery liaisons. It is critical that the e-discovery liaison be trained in information searching.

Tip #12: Plan Carefully the Details of the Search

The parties also must agree as to the timing and conditions that might require additional searches during the course of discovery.

Counsel is advised to pay particular attention to the details of the search because selecting the wrong terms, fields, time frame, or document type can determine the cost and value the discovery provides.  When selecting terms counsel should always remember that they are asking a machine to search data and not a human being, meaning that the machine is not likely to pick up cultural jargon, typos, or other things that humans automatically perform when reading information. However, tools are in the marketplace today that are more than just “dumb machines” that enable counsel to be both more efficient and effective when searching data.

Tip # 13: Develop a Standard Roadmap Describing your Process

With regards to the format of the data sets that are produced, the new Default Standard provides that if the parties during the course of the Rule 26(f) conference cannot agree as to format -- the parties shall produce text searchable image files, unless this proves to be overly burdensome.  Parties are entitled to request the production of the native files that correlate to the search text image files, subject to a showing of a specific need.

In the first thirty (30) days of discovery, the parties should work with their respective e-discovery retention coordination to provide a roadmap that outlines the manner in which they intend to segregate and preserve the relevant information.  In-house counsel should consider developing a standard roadmap that they can provide to outside counsel. Such a roadmap would provide e-discovery consistency and reduce costs substantially since outside counsel will not have to create such a document from scratch as part of each litigation.  The more forthright the parties are in their efforts to preserve at the outset the less likely it is any accusations of spoliation will be viewed as having merit.

(Part 3 of 3)

For Tips 1-5, Click Here 

For Tips 5-10, Click Here.


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