Commission on Law & Technology

Understanding e-Discovery

Leading Practices | eDiscovery

Working Group eDiscovery
Topic Understanding e-Discovery Products and Services
Date of Publication August 27, 2015
Version 1.0
Applicable DLRPC (Rules) 1.1
Summary Attorneys dealing with e-discovery should be aware of the categories of e-discovery products and services available and the terminology employed. In addition, when selecting an e-discovery vendor, there are various considerations for law firms and companies alike.

Disclaimer: The purpose of this leading practice is to provide the Delaware Bench & Bar with an understanding of an appropriate manner in which this technology may be used. There may be more appropriate uses; and the leading practice discussed might not be appropriate for a specific purpose. It is up to the individual to use well-reasoned judgment in making that decision. The Commission is not responsible for the consequences of the decision-making process.

Understanding e-Discovery Products and Services

This best practice will address the types of products and services in the e-discovery market, terminology you will need to be familiar with, and considerations you may need to assess when hiring an e-discovery vendor. 1

The Services Available

Regardless of the form discovery takes, the same questions often arise. How do I collect what I need to produce and make sure that relevant information is preserved? Once I have what I may produce or receive what another party has produced, how do I review it? Are there ways to identify what is really important to my case? For many attorneys, this process once started with a visit to the client, a copy set of documents in bankers' boxes, and document-by-document review. With electronically stored information ("ESI"), a similar process occurs electronically.

Collection and Preservation

Before you can review your client's electronically stored information ("ESI"), you need to collect 2 it. And even before that, ESI needs to be preserved once the party has a reason to anticipate litigation 3 . There are various ways to collect and preserve. What products and services you employ may depend on the universe of ESI that is at issue. If your client's ESI is limited to a personal computer, smart phone, or tablet, a number of e-discovery vendors have collection devices that will connect to the source and harvest the data. If the relevant universe is larger, perhaps because there are multiple sources of ESI or because the ESI is networked, e- discovery vendors are able to use more sophisticated tools to collect. Large, small, or somewhere in between, the attorney must first assess how much ESI there is to determine what collection tool to employ.

One consideration a lawyer may want to consider regardless of the amount of data is whether to preserve an image of the universe of data as of a particular date. Doing so can help defend against a spoliation challenge.

Review Platforms

Once you have collected your client's ESI or have received another party's ESI in response to a document request, you will need a way to review it. In many cases, the volume of documents (even as few as a couple hundred documents) will benefit from a document review platform . Such platforms help you to quickly review documents. In addition to reviewing the images, such platforms can allow you to review relevant metadata , including perhaps who authored a document, who received it, and when it was created and edited. You can often "code" documents in these platforms, designating them as responsive or privileged or correlating them to key issues or witnesses. Once reviewed and coded, review platforms should allow you to make a document production or to otherwise utilize the documents for use in depositions, briefs, and trial.

You may want to consider what platform you will be using before serving document requests. This way you can request the form of production that will best work with the platform you will be using.

Early Case Assessment

As part of the document review process, a document review platform may have early case assessment capabilities. Such analytic tools allow a lawyer to search and manipulate the data to assess a variety of issues. For example, you may be able to determine what custodians have the most relevant data, determine a timeline of key events, and even weigh the relevant costs of proceeding with discovery against the amount at stake in the litigation.

Technology Assisted Review

Technology assisted review , also known as predictive coding , is an alternative review style to a traditional document-by-document review. While not capable of being treated in-depth in this leading practice, readers should be aware that technology assisted review is a form of document review that attempts to leverage technology to reduce attorney time and costs in review while improving accuracy. The manner of technology assisted review can vary across e- discovery products and services. Generally, each such product takes a sample review by an attorney and then using that sample set, relies on algorithms to identify the universe of documents to be produced.

Considerations in Selecting an E-discovery Vendor

When selecting an e-discovery vendor, whether you work for a law firm or in-house at a company will likely have an effect on things you should consider. The following are some exemplary issues to consider.

  • Considerations for Law Firms in Selecting a Vendor:
    • Define the scope and timetable of the project internally first; think workflow, technology and personnel. You are not simply hiring a vendor you are entering into a strategic partnership.
    • Set expectations and define goals and objectives - do you want to reduce cost, or get more effective and efficient data management?
    • Mix and match vendors based on core competencies. Explore creative arrangements between providers, matching companies whose core competencies can be combined to deliver exceptional services.
    • Set a kick-off meeting to set expectations, protocols and strategic plan with the team assigned to the matter.
    • Define key terms. Very important to make certain everyone understands what is being discussed.
    • Agree on work flow processes as well as escalation processes for issues requiring attention from senior staff and timelines for completion of phases.
    • Due Diligence. Ask the potential vendor to provide detailed information about its operations and experiences including, for example:
      • Do they have any business or technology partnerships which are an advantage to their company or upon which their company relies for software, support, or technology?
      • Who is their staff and what are their functions and responsibilities? Describe infrastructure for data operations (analysis, search, processing , production, storage , repositories, and back-ups ) and hosting services, and when it was last updated.
      • Do they provide any services, either directly or through coordination with an affiliate or partner?
      • How do they maintain integrity of data, completeness of data, authentication, quality control of process, and defensibility of process.
      • How do they check for (resolve or clear) conflicts of interest for engagements that may be offered to them? How is conflict-check data maintained?
      • How do you define their rights and your client's rights and responsibilities once a project has concluded either naturally or terminated by the client?
      • What insurance coverage do they carry to protect clients for negligence, professional liability, and errors and omissions?
      • What are their process and selection criteria for hiring staff? Background checks? If so, what is included?
      • What is their data and physical security for the technology or facility in which party data may reside? Is the facility available for inspection? Is the security protocol or documentation available for inspection? Have they done any penetration testing? Results?
      • What safeguards are in place to ensure that any manual processes that occur in day-to-day business handling client data do not result in the inadvertent cross- contamination of data to another client's database?
      • What self- or organization-issued certifications do they have from national or international organizations (e.g., ISO, SAS) and when they were received? Is documentation available for inspection?
      • What certifications or advanced professional degrees are maintained by senior staff members, with priority for those staff members who would support this engagement?
      • Who are their references? Need name, title, email address, phone number, and office address for individuals for whom they performed work similar in size, complexity, and services to that requested here.
      • Have they ever been sanctioned in a case?
    • Remember that counsel has ethical obligations of competence and oversight of vendor.
    • Confidentiality.
      • Will they sign a non-disclosure agreement?
      • Will they destroy your information upon completion of the project?
  • Considerations for Companies in Selecting a Vendor:
    • In addition to the considerations listed above, companies have unique issues to be dealt with.
    • Evaluate needs of company and litigation landscape.
      • Does the company need its own relationship?
      • Will work with law firm vendors suffice?
    • What security measures are in place?
      • Do they meet the base line requirements for all vendors working with the company?
      • Are they willing to share their security protocols?
      • Have they been audited before/recently?
      • They will be entrusted with the most critical information in the company. Make sure they are capable of keeping that information secure.
      • Transmission - how secure are their firewalls and encryption methods.
        • Do they utilize industry standards such as the Standard of Good Practice for Information Security or ISO27000.
      • Physical security and drug and criminal background checks.
      • What is their breach policy and/or action plan?
    • Utilizing Procurement personnel.
      • Is the company required to use procurement in the engagement of this vendor?
      • What are their requirements for proposals/bidding?
      • Do they have standard forms and questions they need answered.
      • Will they be performing the RFP analysis?
      • Will they allow input from end users and other stakeholders?
    • Evaluating capabilities.
      • Do they have the resources/tools you are looking for?
      • Do they have proprietary workflows and software or are they industry agnostic?
      • Where are they located? Is it convenient?
      • Based on the evaluation of litigation landscape, do they provide all the tools that you require in all the right locations?
    • Building relationships.
      • Time spent in developing long-term relationships with vendor pays benefits in the long run.
        • Understanding clients information landscape.
        • Working with other vendors and law firms through client coordination.
        • Commitment to performance and meeting deadlines.
        • Dealing with problems as they arise.
      • Physically meet with team members where feasible. If interested in long term relationship, encourage learning about your business to give better understanding to all vendor employees.
    • Costs.
      • Compare costs per similar elements; where possible try to compare apples to apples.
      • Evaluate costs over the lifetime of average litigation matter.
      • Discuss volume discounts.
      • Explore alternate billing models.
        • Per unit pricing .
        • Per project pricing.
        • Flat fees.
        • Monthly "all-in" pricing.
    • Confidentiality.
      • Will they sign a non-disclosure agreement?
      • Will they destroy your information upon completion of the project?

Glossary of Terms

  • Active Data - information on a computer that can be immediately accessed by a user.
  • Backup - process of creating a copy of active data for disaster relief or other purposes in such a manner that the copied data can replace the active data should anything happen to the active data.
  • Collection/Harvesting - process of retrieving or collecting data from electronic sources.
  • Custodian - person having control over specified electronic data (e.g., person with access to emails in a particular email account may be the person assigned to that email account or, for example, an assistant who sends and receives email on the assigned person's behalf).
  • Data Mapping - "methods used to memorialize the identification of ESI" that may take the form of lists, tables, spreadsheets, databases, and maps. Definition courtesy of .
  • De-NISTing - a filtering of software or program files from ESI that is being collected and processed for review and production in discovery.
  • Directory - organizational structure for how files or servers are linked and maintained (sometimes referred to as a directory tree).
  • Document Review Platform - the software or application utilized to review electronic data (e.g., iPro, Concordance, etc.).
  • Encryption - a level of security that is added to electronic data to render it unreadable to anyone not authorized to review it.
  • Forensic Collection - a collection that results in an exact copy of the medium storing the information; also known as "imaging."
  • Forensics - scientific manner of reviewing data on or from a source that can be attested to in court.
  • Image - a picture of a document (e.g., PDF, TIFF, OCR (text-searchable image), etc.) or an identical copy, or mirror image, of all of the data from a particular source.
  • Metadata - information about data that provides information about the data itself (e.g., author, recipient, file folder, creation date, modified date, etc.).
  • Native - a document or file in the original format in which it was created (e.g., an Excel spreadsheet or database) that has not been imaged.
  • Network - a group of sources linked together to pool information (e.g., computers linked together to use a common file server or printer, etc.).
  • Preservation - following identification of all potential sources of data, steps taken to ensure data is retained and not lost or destroyed through routine auto-delete processes (such as for email or backup tapes) and that document destruction policies are halted or revised to account for any ongoing litigation.
  • Pricing - a vendor may offer per unit pricing (e.g., fee per number of megabytes or gigabytes), per project pricing (e.g., set fee for entire project irrespective of how much data though what services are offered as part of the project may need to be negotiated), flat fees (e.g., separate fees for each step of the process such as collection, storage, coding, processing), and monthly "all-in" pricing (similar to flat fee but negotiable by month).
  • Processing - automated method for reviewing data and extracting certain information such as text and metadata.
  • Search Term Culling - the use of search terms to help identify potentially relevant information in document collection.
  • Self-Collection - the act of allowing a client to identify information the client deems relevant without the adequate involvement of counsel; for more information on self-collection please see the Commission's leading practice on this issue at this link.
  • Source - electronic media such as computer hard drives, file servers (central storage system for networked computers), compact disks, backup tapes, thumb drives, flash drives, data on mobile phones, etc.
  • Storage - once data is harvested for litigation, who will be responsible for maintaining the stored data, where geographically will the data be maintained, on what media will the data be maintained, and what security measures will be put in place to protect the data from loss, damage, and unauthorized access.
  • Targeted Collection - as opposed to a forensic collection, a collection that only collects specific information from within the medium storing the information.
  • Technology Assisted Review/Predictive Coding - process by which an automated system applies certain criteria or information fields to data to aid in the review and use of the data.
  • Volume - Amount of electronic data, usually referred to in relation to a number of megabytes or gigabytes of data rather than by a number of pages or documents. A more detailed glossary of e-discovery related terminology has been published by The Sedona Conference and can be found at

1. The District of Delaware, Court of Chancery, and the Complex Commercial Litigation Division of the Superior Court have either default standards or guidelines to aid parties in discovery. While not necessarily related to this discussion of e-discovery products, knowledge of what the Courts mandate or expect should be considered by practitioners appearing in those particular courts.

2. Underlined and bolded terms are defined in the Glossary of Terms section contained herein.

3. Beard Research, Inc. v. Kates, 981 A.2d 1175, 1185 (Del. Ch. 2009) ("A party in litigation or who has reason to anticipate litigation has an affirmative duty to preserve evidence that might be relevant to the issues in the lawsuit. Whether a person has reason to anticipate litigation depends on whether the 'facts and circumstances... lead to a conclusion that litigation is imminent or should otherwise be expected.' A court may sanction a party who breaches this duty by destroying relevant evidence or by failing to prevent the destruction of such evidence.").