Our fourth eDiscovery blog focuses further on the concept of classification – and specifically on how it can be used to proactively identify sensitive data, and then protect that data upon production.
The size and diversity of custodial data continue to grow. Sensitive confidential business and personal information are frequently embedded in potentially relevant documents identified by counsel for discovery productions. The recent decision in Corker v. Costco Wholesale Corp., NO. C19-0290RSL (W.D. Wash. Nov. 12, 2019) compels the defendants to produce Excel spreadsheets containing non-relevant competitive pricing in native form without redactions. Omnibus spreadsheets containing pricing, contract terms, employee salaries, or sales pipelines raise both risks and cost in discovery.
In Corker v. Costco Wholesale, the plaintiffs filed a motion to compel production after the defense produced a spreadsheet that had been converted to a 2,269 page PDF with significant redactions covering sales information regarding brands not named in the lawsuit. The decision affirming that motion cites the advisory committee’s comments to the 2006 Amendments to Rule 34(b)(2)(E)(ii) that require a party to produce electronically stored information in a ‘reasonably usable form’ if they elect to not produce it in the native format in which it is ordinarily maintained. The order declined the defendant’s offer of the spreadsheet in Excel format with irrelevant and commercially sensitive information redacted or filtered out. Instead, the full, unredacted Excel spreadsheet was to be designated “Plaintiff’s Outside Counsel Only” and produced under the existing protective order.
Protection requires identification and designation
This decision makes the identification and designation of a vast array of sensitive data categories essential before and during your discovery review. Your company’s retained counsel is focused on the matter of relevance and privilege review. They understand the matter issues and scope of the discovery request, but they cannot understand your business data as well as you do. The most efficient time and place to classify sensitive corporate data are at creation. User-driven manual classification puts an unreasonable burden on your employees and results in inconsistent classifications.
Automated classification equals consistent and efficient protection
The uses for automated enterprise-wide
Leveraging outside collection to jump-start classification
Most organizations have already paid counsel and Alternative Legal Service Providers (ALSP) to analyze and classify discovery collections. Corporate counsel can make use of that to create their needed classification patterns (search criteria) and run their custom classifications. Many corporate legal departments are investing in solutions like the Veritas eDiscovery Platform to take ownership of their discovery process. This transforms corporate discovery from an ad-hoc fire drill to a mature business process that builds knowledge – and most importantly, returns value for the organization.
