Best Practices When Fishing for Non-Email eDiscovery

When seeking out electronic data, litigators need to be aware of the various places that relevant data, especially other electronic communications, may be stored. When it comes to ediscovery, there's more than just email.

In addition to email communications, when litigating against a business entity, there are likely to be instant messaging platforms, as well as internal and external social media communications, not to mention raw data on employment, finances, and other trackable metrics. Many businesses these days are using instant messaging communication tools, like the popular app Slack, and other tech that allows employees at various levels to communicate information, which can all be a well-stocked pond ripe for a fishing expedition. Some businesses may even have tech that helps them track all their data.

Fish Smarter, Not Harder

While it may be tempting to burn an interrogatory or two on finding out what type of electronically stored information your adversary has in their possession, interrogatories are precious, limited resources that shouldn't be so cavalierly, or hastily, sent. Casting a wide net with requests for production instead really doesn't risk much. If your adversary doesn't have the ESI you're looking for, you can expect a response to the request explaining that no documents exist.

Requesting all electronically stored communications between certain dates, and/or between certain employees, should now include instant messaging platforms, and/or company controlled social media channels, in addition to email as a standard. When requesting this type of ESI, limiting your request by using a time frame, topic, or singling out specific employees, or groups, may make an eventual motion to compel more effective.

Fish With a Pro

With all the new technology, ediscovery can quickly become unduly burdensome, especially for the unprepared. A requesting party could be faced with a massive data dump that drives costs out of control. Most litigators have likely already had the unpleasant experience of dealing with email exhibits that have over 10 pages of irrelevant email replies included, or random blank pages that are automatically numbered, or worse, full page advertisements for embarrassing self-care items (targeted advertising does it again!). But not nearly as many have had to sift through over a million pages of data extracted from a single smartphone in order to find a few lines of text or images to support a case. In the world of ediscovery, the saying "be careful what you wish for" is all too true.

If you're faced with a giant data dump, or an adversary whom you really don't know what sort of ESI to be looking for, retaining an ediscovery consulting expert could save you time, money, and potentially help you land a big fish. An ediscovery expert may be able to guide your discovery requests by suggesting what sort of tech a particular company may possess.

Related Resources:

• 7 Best Practices for Capturing Webpage and Internet Evidence (FindLaw's Strategist)
• 5 Ways eDiscovery Will Change Things in 2017 (FindLaw's Technologist)
• How to Become an E-Discovery Professional (FindLaw's Greedy Associates)