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eDiscovery Processing: Requesting and Negotiating

Requesting and negotiating are critical components in any electronic discovery project. This fact is validated by the changes to the FRCP that will mandate a meet and confer early in the process of undergoing any discovery action. This meeting will dictate the amount and type of information that is subject to processing further along in the life-cycle of the litigation. Understanding the relationship of this process and its downstream effects on processing timeframes and costs can make a consumer of electronic discovery processing services better prepared to make cost effective and efficient decisions. Additionally, the provider of the electronic discovery processing must be able to adapt to the realities these decisions make on the processing specifications.

As stated in the discussion regarding the scoping of the project, it is important to ensure that when you are ready to begin processing the data your methodology is consistent with the strategy of the corporation or its law firm. The strategy should be clearly stated and delivered in writing along with the media to be processed. This would hold true regardless if you are using an electronic discovery service and/or product provider or are handling these responsibilities in-house.

When determining the type of electronic data to collect for processing, it is important to develop a strategy. The combination of keywords and various properties that each computer file possesses will define the collection scope in an electronic discovery investigation. A single method or a combination of methods is often used to create the appropriate data preservation and collection strategy. A good strategy is documented and shared with all providers of services throughout the life-cycle of the electronic discovery project.

Depending upon the tools used, the filtering criteria can be done upfront at the custodian's desktop using the latest in network collection tools or at the back-end after the data is collected according to the data-culling techniques described herein. When and how much to filter will depend on several factors, including whether a re-collection may be necessary and what can be agreed on upfront before the collection begins. Filtering upfront has many advantages, including reducing the total data set to process, avoiding privileged documents and avoiding the collection of irrelevant and non-responsive documents.

Questions to ask when determining filtering criteria:

  • Can the search be limited to exclude selected folders/directories?
  • Do you need to review temporary internet files?
  • Can the search be limited by file extensions/types?
  • Can the search be limited by dates and/or times?
  • Can the search be limited to active files?
  • Can the search be limited to a specifically named document(s)
  • Can the search be limited to keywords?
  • Are you concerned that the custodian may be hiding data by renaming file extensions?
  • Are you looking for a specific document? If so, do you have an electronic copy of the document that can be used to find any and all exact matches?
  • Are you looking for all files created by a certain person (user created files)?
  • Are multimedia files (audio, graphic, video) of any relevance to this investigation?


Source: EDRM (

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