The prevalence of Electronically Stored Information, or ESI, has grown exponentially over the past decade. Both statutes and case law now give parties the duty to review and produce ESI. As a corporate legal department or law firm, when a matter arises that requires the review and production of ESI, how do you comply with such a request? How do you search, categorize and ultimately produce ESI?
The Federal Rules of Civil Procedure developed a discovery plan that addresses issues relating to the discovery of ESI, including the form in which it will be produced. State law has followed suit and, in many cases, states have their own statutes covering the production of ESI.
Parties are required to discuss any issues related to the preservation of discoverable information, and address issues relating to claims of privilege or work product protection. Parties must produce ESI that is reasonably accessible and a responding party need not produce electronically stored information from sources that it identifies as not reasonably accessible because of undue burden or cost.
Case law further defines the intent of the statutes governing the production of ESI, and the variety of options for searching and producing ESI have grown significantly. Once a matter is in litigation, the process begins with litigation hold and proceeds through tracking, e-mail archiving, identification, preservation, collection, processing, hosting, batching, review and, ultimately, with production.
If you are a law firm or a corporation with a large-scale litigation matter or a case requiring review of a large volume of electronic documents, you may consider partnering with a staffing provider to help meet your ESI needs. Below, we present a strategy for identifying an optimal partner who can ensure your goals are met.
Before choosing a staffing provider, you must determine which review tool to utilize. There are many solutions in the marketplace and this decision should be made on a case-by-case basis by legal departments in conjunction with outside counsel. There are a wide variety of factors that must be considered when making this decision, including:
- How is the ESI stored?
- In what format has the meet and confer letter determined the material will be produced? (For example, Excel spreadsheets need to be produced in a different fashion than Word documents.)
- Is the material to be reviewed as a first-pass review, a second level, for privilege, etc.?
- Does the material to be reviewed pertain to an area of law that will require a specific expertise, such as foreign language abilities or previous IP litigation experience?
- Will it be necessary for the reviewers to have prior experience with the eDiscovery tool that is selected?
It is also critical to be aware of discovery deadlines and know how many documents (and pages) of material need to be reviewed. These details will guide you and your staffing provider in determining the number of contract attorney reviewers needed as well as the estimated total hours required to complete the review. You will also be able to project an anticipated total cost for the review.
After determining the review tool and ascertaining deadlines and document volume, you should be ready to select a staffing provider. And, whether you are hiring for a specific project or selecting a preferred provider, you need to take the time to get to know the strengths and weaknesses of different providers before retaining their services.
Ask for basic but critical information, including how long the company has been in business and whether or not they have sufficient insurance coverage. Discuss processes related to pricing, invoicing and payment—including how you pay the staffing agency and how they pay their consultants.
Determine where the staffing provider has offices and if they have capabilities in your locations. Do they only do business where your supervising attorneys are located, or can they support you where the case and the material to review is located? Providers also need to be knowledgeable of wage and hour requirements in your market, as overtime laws vary from state to state. Be sure they can meet your needs everywhere you need them.
It is also important to know how your staffing provider recruits, selects and screens candidates. You want to work with a vendor who personally meets with each consultant to get an in-depth understanding of their skills and their fit with your company. Be sure the vendor can accommodate any background check or drug screen requirements, both prior to employment and upon request. Furthermore, be certain that they have the internal resources required to get the job done at a high level. Ensure they have a roster of skilled project managers and team leads available to work with supervising attorneys on quality control and batching.
Finally, it is essential that your staffing provider treat their consultants well. Are the facilities provided for the reviewers comfortable, well-lit and properly ventilated? Do they offer any benefits? What does the provider do to retain the strongest consultants?
These are all critical factors to consider and will help ensure your company is provided with the contract attorney services that can augment your ability to review and produce ESI.
Special Counsel has offices in more than 30 U.S. cities and can staff project teams in locations without a physical office throughout the U.S. and abroad. Our recruiters personally meet with consultants and our Quality Assurance Team verifies licensure, education and references. Special Counsel’s SightManager® document review management tool further revolutionizes the way electronic document reviews are managed by allowing an individual to monitor—in real time—exactly what is happening on each document reviewer’s computer. Without having to physically be on-site, supervisors can observe and discuss reviewers’ work and can even “take over” reviewers’ screens to assist, correct or provide additional instruction. Should you choose us, please consult your Special Counsel representative as early as possible to discuss the above questions as you prepare for your next large scale document review.
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