Be Reasonable, Be Knowledgeable

E-discovery advice is prevalent throughout legal, information management and technology publications, including varying opinions about the methods in which to diligently preserve and collect electronically stored information (ESI). Common themes focus on finding relevant ESI by understanding how your organization uses its information, locations where data resides, as well as knowing the scope of the collections for specific litigations. This guidance, coupled with the court’s requirements, drives the desired outcome of using reasonable and repeatable processes, cost-effective methods and legally defensible practices. To best achieve these goals, consider the following recommended practices:

Be proactive.
E-discovery search and collections is part of a larger information governance effort. Ideally, policy and process should be in place long before litigation strikes; the more litigious a company, the more important it becomes to establish and document overall policy—especially rules for retention and defensible deletion. Another crucial step is to build a team with stakeholders who can collaborate on strategies for preservation, litigation hold and collections. To avoid last-minute scrambles, keep data maps and system inventory updated. Lastly, the right resources, software, vendors and personnel should already be identified and functional.

Collaborate.

The formation of an efficient e-discovery team is essential for collections to work effectively. Members should fill key roles needed to create and implement policy. To that end, the team should be pulled from legal, IT and business units with other departments like compliance, HR or records management supporting overall efforts and being consulted as necessary. In addition to proactive planning, this team should assemble when any legal proceedings can be reasonably expected. It is essential that the members pre-define areas of ESI that are not reasonably accessible (e.g. legacy systems). Once litigation is anticipated, the team should focus on one or more of the following:

• Defining the scope of the matter and information-gathering requirements;
• Initiating and managing legal hold notifications and acknowledgment;
• Implementing preservation and collections processes;
• Addressing outliers such as encrypted files or corrupt data stores; and
• Managing a defensible process.

Communication between team members is critical to keep the collections process running smoothly. To assist this effort, an e-discovery liaison should be appointed. This key resource should work with IT to guide the process, establish parameters and navigate challenges. The liaison should be able to answer questions, work to safeguard defensibility, inform 26(f) meet-and-confer conferences and ensure that collections address other legal and technical concerns.

Preserve data.
You cannot search or collect ESI that is not there. Deletion and wiping activities are often scrutinized by the courts in an adverse manner, which could negatively impact your case. Well-documented policies should be in place to outline how both automated and manual deletion will be disabled in the event of litigation. The policy and the applications that support it should be flexible enough to issue legal holds as well as halt deletion based on custodian, data store, date range or all the above. Verifying and assessing of all these steps is central to defensibility.

Deploy targeted collections.
Document review remains as the largest cost associated with e-discovery and is directly related to the volume of ESI collected; therefore, there is a direct correlation between targeted data collections capabilities and front-end culling capabilities. From the outset, the scope needs to be well-defined by the e-discovery team. This includes:

• Identifying and prioritizing key custodians;
• Pinpointing pertinent ESI storage locations;
• Choosing automated solutions and deciding on methodology;
• Defining the parameters of the search including dates, keywords, file types;
• Clarifying delivery formats for structured and unstructured data; and
• Establishing what is “reasonably accessible” as related to the proportionality of the specific case.

Avoid common mishaps.
Mistakes during the collections phase can cause havoc for a case. Here are a few to avoid:

• Modification of metadata. Without the correct tools and processes, it is surprisingly easy to change file properties. For example, using Windows Explorer to copy files to a new location can change creation and access dates. Opening documents in native applications can also change “last accessed by,” and in some programs, may affect “modified by” properties.
• Failing to document methodology. Defensibility is one of the main considerations in e-discovery collections. Missing collections inventories and logs can weaken a case. Additionally, some collections are performed using native applications. Care is needed here because some of these programs (e.g. Microsoft Outlook) can alter metadata and are not optimized for establishing a chain of custody or consistently reproducing results.
• Using custodian self collections. A common, but highly unreliable, method of collections is to have custodians collect their own data. This is often a recipe for disaster because of the lack of audit trail, inconsistent searching and potential conflict of interest. Trained, impartial personnel should perform the collections, preferably with peer-reviewed and commercially available tools. This helps to avoid mistakes due to lack of knowledge of systems, scope or process.

Review the process.
The best way to avoid difficulties and withstand legal scrutiny is to include a repeatable assessment process as part your collections methodology. This includes several fundamental steps:

• Document the steps that were performed;
• Test software to make sure you can consistently reproduce results;
• Review and validate your preservation workflow;
• Outline the quality control process as part of the initial plan of action;
• Conduct pilot collections on a small set of potential custodians before performing the overall collections effort; and
• Implement and monitor the litigation hold efforts to ensure enforcement.

Knowledge and planning reduces pain and disruption in the initial stages of e-discovery. Be organized in your approach, and have the correct resources and tools in place while working together with a well-chosen team to create policies specific to your organization. Being proactive and thorough during collections will lead not only to savings, but also will provide peace of mind.