Despite the fact that the collection of electronically stored information (ESI) is a classic e-discovery practice, central to the exchange of evidence between parties in litigation, there is a lot of misinformation that gets thrown around regarding what courts are actually looking for in a defensible collection process. Though it's not always the case, many organizations take an overly cautious approach to collection that relies heavily on the involvement of IT professionals or outside service providers. Many popular collection methods, such as full bit-by-bit disk imaging, might help to ensure that potentially relevant ESI doesn't get deleted, but they exhaust valuable time and resources and surpass the standards imposed by courts, which are grounded in reasonableness and proportionality. Moreover, they fail to account for a lot of the newer collection technologies that have rendered traditional, resource-intensive collection methods obsolete.
Here are five popular myths about e-discovery data collection:
Myth #1: Forensically sound collections require bit-by-bit imaging.
Only in special circumstances is a full copy of a custodian's hard drive (known as a bit-by-bit image) required for civil litigation. A good, forensically sound collection means that all the files are preserved, along with the associated metadata (e.g., creation date, last modified date, etc.) necessary to prove that the information is authentic. Some organizations prefer bit-by-bit imaging because it's perceived to be the “safest" collection method, capable of standing up to rigorous scrutiny. In reality, bit-by-images are very expensive and only justifiable in the e-discovery context when a custodian is suspected of intentionally deleting files to hide unauthorized behavior.
Myth #2: IT has to be involved in the data collection process.
Newer collection technologies enable legal team members, those familiar with the issues of the matter and what ESI is relevant to those issues, to initiate collections on their own, without IT involvement. These collections are typically executed across the network using a custodian list, set of search criteria (keyword concept, predictive, etc.) and other filters. The ability to collect directly from network repositories can actually enhance defensibility because it allows legal teams to grab relevant data right away, rather than have to wait for IT to assist in a more laborious and disruptive manual collection process.
Myth #3: Courts encourage parties to collect broadly.
Courts are interested in one thing and one thing only: relevant ESI. Broad collections that incorporate gigabytes of non-responsive data and require lengthy and expensive review projects are as frowned upon by the courts as well as by the organizations who foot the exorbitant legal bills. Courts are far more concerned that enterprises have strong preservation processes in place so that potentially relevant ESI doesn't get destroyed.
Myth #4: The only way to analyze documents is to collect them first.
Organizations that leverage in-place early case assessment (ECA) technologies have the ability to analyze documents in their native environment, prior to collection. Assessing data in its native environment delivers a myriad of benefits. It provides legal teams with earlier visibility into the actual facts of the case, helps them fine tune preservation and collection efforts and eliminates unnecessary data from being collected. Conversely, relevant ESI deemed to be especially at risk of destruction or alteration can be immediately identified right away and escalated for collection, eliminating eliminate the risk of evidence destruction. A robust ECA process also provides a “snapshot" of the data universe at a given moment in time. That sort of documentation and transparency can be invaluable for refuting spoliation claims or any number of potential conflicts that may arise further along in the process.
Myth #5: Collection is the only defensible form of document preservation.
The first step of a defensible preservation process is issuing timely and clear legal hold notices to potentially relevant custodians, instructing them to preserve certain documents. Parties are expected to monitor compliance, clear up any confusion a custodian might have about his or her obligations, send regular reminder notices and take immediate and assertive steps to rectify any potential issues that may result in responsive ESI being deleted. Beyond a robust legal hold process, organizations should also consider in-place preservation tools for especially at-risk data. These technologies essentially block a custodian's ability to delete certain files, thus eliminating the risk that a custodian may intentionally or unintentionally destroy relevant evidence.
You can learn more about issues around e-discovery data collection by registering for Exterro's upcoming webcast series, Targeting Cost Savings in E-Discovery Collections.