The document discusses the top 8 common e-discovery problems faced by companies: lack of document retention policy, no written legal hold, failing to identify key custodians, poor documentation of e-discovery processes, forgoing custodian interviews, inadequate privilege protection, insufficient authentication of electronic records, and ignoring mobile devices. It provides recommendations for how companies can address each problem to strengthen their e-discovery practices.

1. THE FIX
Contact Exterro to learn how our e-discovery software solution can help
solve these common e-discovery problems.
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“[B]y failing to retain any documentation, a defendant may
lose its ability to credibly defend claims asserted against
it, and it may open avenues of third party discovery which
would have been closed had the defendant retained
documents consistent with standard business practices,
and thereby be considered a reliable source of the
relevant discovery.”
Peter Kiewit Sons, Inc. v. Wall Street Equity Group, Inc. (D. Neb. 2011).
Lack of Document Retention Policy
"[T]he failure to issue a written litigation hold in a timely
manner amounts to gross negligence."
Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC
(S.D.N.Y. 2010).
No Written Legal Hold#2
Court cited the defendants' failure to identify a key
custodian with potentially relevant evidence or preserve
his files as one of the sanctionable activities.
In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., (S.D. Ill. 2013).
Failing to Identify Key Custodians
Poor Documentation
Judge Paul Grimm states “Defendants neither identified
the keywords selected nor the qualifications of the persons
who selected them to design a proper search; they failed
to demonstrate that there was quality assurance testing;
and when their production was challenged by the plaintiff,
they failed to carry their burden of explaining what they
had done and why it was sufficient.”
Victor Stanley, Inc. v. Creative Pipe, Inc., (D. Md. 2008).
Forgoing Custodian Interviews
A special master determined that defendant did not
perform any investigation of likely electronically stored
information (ESI) sources for any of the custodians.
Small v. University Medical Center of Southern Nevada, (D.Nev. 2014).
Inadequate Privilege Protection
With respect to the so-called “clawback” provision under
Federal Rule of Evidence 502(d), “such a provision will
permit the parties to conduct and respond to discovery
in an expeditious manner, without the need for time-
consuming and costly pre-production privilege reviews,
and at the same time preserve the parties' rights to assert
the attorney-client privilege or work product immunity.”
Rajala v. McGuire Woods, LLP (D. Kan. Jan. 2, 2013).
Insufficient Authentication
“[T]he record being proffered must be shown to continue
to be an accurate representation of the record that
originally was created. Hence, the focus is not on the
circumstances of the creation of the record, but rather
on the circumstances of the preservation of the record
during the time it is in the file so as to assure that the
document being proffered is the same as the document
that originally was created.”
Lorraine v. Markel American Insurance Co. (D. Md. 2007).
#3
open
access
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Along With Best Practices to Fix Them
Top 8 E-Discovery Problems
Track legal hold acknowledgments and target
non-compliant employees for escalation
to their supervisors.
THE FIX
To properly identify key custodians, (1) Interview
custodians to find additional/other custodians
who may have responsive information, and
(2) Integrate HR systems with legal hold
software to keep an updated custodian
list so key custodians are not missed.
Establish and enforce a document retention
policy that integrates with a legal hold system,
enabling the suspension and resumption of the
policy when the related matter has concluded.
Document Retention
Policy
Legal
Hold System
THE FIX
“The Court finds both defendants failed to ensure that
the auto delete feature of their employee cell phones,
company owned and personal, was disengaged for the
purpose of preserving text messages and, as such, this
allowed countless records to be destroyed.”
In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., (S.D. Ill. 2013).
Ignoring Mobile Devices#8 THE FIX
Develop and enforce workplace policies for all user
and company-issued mobile devices. Consider
investing in specialized technologies that allow
for the easy extraction of mobile device data.
THE FIX
If admitting computer stored records, plan to
authenticate the record by the most rigorous
standard that may be applied.
THE FIX
Document all e-discovery activities in “judge
friendly” reports. In addition to documenting
what actions were taken and when, be sure to
also capture why certain decisions were made.
#4 THE FIX
Once litigation becomes likely, immediately issue
custodians questionnaires to identify data
sources that may have responsive ESI.
THE FIX
Pursue a 502(d) court order for all federal
matters and use analytics to categorize
and label likely privileged information.
-OR-
502(d)