Candice Chan-Glasgow, Director, Review Services and Counsel
June 8, 2021
An initial step for any business entity looking to proactively manage costs through the eDiscovery process is to re-examine its document management system (DMS).
A DMS is a system used to store, manage, and track electronic documents. The general benefits of an effective DMS have been touted for years – a DMS offers enhanced security and employees spend less time searching for information while losing less time to versioning issues. While these are all important considerations, a crucial perspective that is often overlooked is the eDiscovery aspect. An effective DMS can save an organization significant time and money in identifying, preserving, collecting, and reviewing documents for litigation, internal investigations, and other regulatory matters.
The most fundamental feature of an eDiscovery-friendly DMS is the ability to export data out of the system. This may sound basic, but it is an important inquiry to make – a number of DMS use proprietary formats which cannot be exported, creating an expensive eDiscovery nightmare. You may have the most organized and categorized document set, but if you cannot export the data to a suitable format, your eDiscovery costs will soar.
It is also important to consider whether native file metadata and metadata associated with the DMS metadata can be preserved and exported from the DMS. Metadata is information about the data and can include the author of the document, the date the document was created and last modified, the location of the document on the server, and the author and recipients of an email. Not only is metadata important for efficient searching and document review, it can also be of evidentiary value in legal or regulatory proceedings. Metadata is important in the eDiscovery world, and a good DMS will preserve both the native file metadata, and the metadata associated with the DMS.
To effectively identify sources of potentially relevant information, an eDiscovery-friendly DMS should have robust search capabilities. This should include the ability to search date ranges, email custodians, folder names and file names, and even the full text of a document. While it is important to understand the metadata fields that can be searched through your DMS, it is equally essential to understand the information that cannot be searched. For example, some email systems search the body of an email, but not the content of the email attachments.
From an eDiscovery perspective, an effective DMS will allow an organization to effectively identify sources of potentially relevant information and then export the data in a manner that preserves the integrity of the document. Equipping an organization with an eDiscovery-friendly DMS is the first step to containing eDiscovery costs. The next challenge is properly utilizing the DMS, including following consistent conventions for naming and saving documents within the organization.
Legal disputes are inevitable, and the document review process is often the most expensive part. The emails exchanged, and documents created over the course of commercial activity can be voluminous, and parties to a dispute will need to carefully sort through the mountain of digital paperwork to identify relevant documents. Fortunately, good document management protocols can streamline the process, saving time and money.
Following consistent naming conventions for recurring documents goes a long way towards reducing the costs of eDiscovery. For example, project change orders are often saved as “CO Number 1”, “CO#1”, “CO No 1”, “Change Order 1”, “Change Order #1”, “Change Order No 1”, or (and even more problematically) “Scan 0001.pdf”. Similarly, meeting minutes are saved as “Planning Committee Minutes”, “MOM Planning Committee”, “Meeting Minutes – Planning Committee”, or any number of additional variations.
It does not matter which naming convention your organizations chooses (though you should avoid “Scan 0001.pdf”); the key is to pick one method for each grouping of documents and be consistent in how those records are referred to. While the differences in naming may seem insignificant, choosing a consistent naming convention will allow counsel to efficiently identify and sort through the relevant change orders or meeting minutes, speeding up the document review process.
Another common document management issue is overuse of the phrase “Privileged and Confidential”. The issue with writing “Privileged and Confidential” on every document (without regard to whether the document is actually privileged) is that the phrase becomes meaningless. In fact, it slows down the document review process as counsel are unable to rely on the designation and must thus carefully examine the origins of each document. On the flip side, it would be extremely helpful if documents that are created for counsel, or at the request of counsel, are designated as such. This helps minimize the risk of inadvertent disclosure and speeds up the document review process.
Version control is another area that should be addressed in a revamped document management protocol. During the document review process, counsel often need to distinguish final versions of documents from draft versions. To streamline this process, organizations should adopt common naming/numbering conventions for draft and final documents.
A Document Management System (DMS) is designed to resolve most of these issues through document profile selections, taking file naming and management out of the hands of individual users. Users will still need to apply consistent tags and follow the organization’s DMS guidelines, but it is easier to manage one system than 100 users.
Emails typically form a large proportion of the documents collected in a commercial dispute. To reduce the cost of review, mailboxes (both inbox items and sent items) should be organized. While specific folder structure needs can vary by organization, it is extremely helpful to utilize separate folders for separate projects. While not always possible, it is also best to avoid emails that discuss multiple projects. Additionally, best practice is to always include the relevant project in the email subject lines. An organized inbox can significantly cut down on the cost of document review.
A proper DMS and some upfront work in managing an organization’s emails and documents can have a significant impact on eDiscovery costs down the road.
Candice Chan-Glascow is Director, Review Services and Counsel at Heuristica Discovery Counsel LLP. Candice is a project manager on legal review projects and assists clients with their eDiscovery project planning in addition to providing quality control guidance to Heuristica’s legal review teams. Candice has managed numerous types of files including class action litigation, bankruptcy proceedings, construction litigation and arbitration, commercial litigation, and competition reviews.