eDiscovery in Litigation: The Paralegal's Role in Electronic Discovery

Paralegals have been taking a much larger role in supporting the electronic discovery process (AKA eDiscovery), allowing attorneys to focus more on the law.  The most important functions a paralegal can perform include:

1. Understanding the Information Technology involved:

When asking for documents from opposing counsel, or the client, it is important to consider the types of software involved and requesting the information in “native” format.  This is frequently referred to as electronically stored information or ESI. Native format is simply electronic information in its original format such as Outlook emails (or Lotus Notes), Word documents, Excel spreadsheets, QuickBooks data, Adobe documents, etc.  It is also important to consider other means of electronic communication frequently used such as cell phones, voicemails, or digital recordings.  Many companies have IT professionals that can assist in identifying the information they can provide, particularly from specialty software they utilize.  Questions to ask include:

• Who are the custodians whose documents need to be collected?
• How many data points does ESI need to be collected from for each custodian (laptop, cell phone, desktop, etc.)?
• What types of software are utilized (Outlook, Excel, Adobe, QuickBooks)?

2. Understanding and assisting the attorney with electronic discovery orders:

Identifying the information needed for the particular case is best done with the attorney, paralegal and IT professionals.  This can help limit the information requested only to the parties (frequently called “custodians”) from whom you hope to gain the most relevant information.  Identifying specific search terms to limit the information requested is also prudent.  Once the information requested is narrowed down, it is time to work with the other side to prepare an agreement as to the information to be produced.

Attorneys, with your input, will frequently ask the court for an electronic discovery order sometimes called an ESI Protocol. Putting all the various types of electronic documentation into your request and having the court order that the information be released in native format, forces the issue of providing native documents.  It can also be important to prepare agreed protective orders for confidential information inadvertently produced, which protects both sides.

3. Understanding and utilizing specialty electronic discovery software:

Litigation eDiscovery software is currently a booming business.  There are many vendors, variety of pricing models, and software that can keep you organized and producing the proper documents responsive to requests for production of documents.

Some of you may work for a firm which already utilizes and has established procedures for one of the eDiscovery software platforms.  For those of you that do not, assisting the attorneys with researching, pricing and attending demonstrations will help everyone.  The advantage of having your input, since frequently you will be the one utilizing the software platform, is invaluable.

A couple of things to watch for with the software you choose:

1. Security.  If you are dealing with highly confidential and sensitive information, particularly tax returns, bank statements, banking loan documentation, HIPAA documents, you need to ensure that the software chosen has a higher level of security.  Many vendors are becoming more aware that they need a two-factor identification for logging into the database.
2. Ease of Use.  The software platforms come from easy, entry level, to highly technical and complex.  Choosing the software that works best for you and your attorneys is critical.  Why pay for software that’s too confusing to utilize?  Most vendors will not only train you on the use of their product but will assist you up-front with setting up their platform tailored to what your team needs for review and production of documents.
3. Performing document review.

Attorneys are relying more heavily than ever on their paralegals in the eDiscovery process.  The most important function the paralegal can play is in document review.  However, the attorneys need to tell you exactly what they consider responsive or non-responsive.  Frequently, the attorneys will have you closely look at the discovery requests, and only produce documents that are clearly responsive. 

As an example, perhaps documents have been requested from one particular party (“John Doe”) to/from/carbon copied of another specified party (“Jane Smith”).  When you are reviewing the documents for production, if there is an email from John Doe to Susie Que, it would not be responsive.  Alternatively, if in the discovery requests that you produce all documents from John Doe and there is no qualifier, you would have to produce Susie Que’s communications as well.