As companies become increasingly technologically advanced, discovery of electronically stored information in litigation is becoming more common. Although companies have historically provided self-collected electronically stored information to their litigation counsel, such collection methods come with a good deal of risk.
Pre-Collection Process is a Necessity
When a company is involved in litigation where ESI becomes discoverable, custodians with relevant information should be identified and instructed on maintaining the integrity of their data, most commonly through a process called “litigation hold”. Having a solid and repeatable litigation hold policy and process in place helps to ensure that emails and documents later collected for processing and review do not suffer altered metadata or become corrupt and no longer retrievable. Prior to instituting its first litigation hold, companies should have a “data map” in hand, because relying on the memory of employees is too risky; recalling where all at issue information is stored is at best extremely difficult.
Effective Risk Management
Failure to provide all relevant ESI or allowing spoliation of ESI can result in sanctions, however, sanctions are not the only reason to mitigate corporate exposure to risk when involved in discovery of ESI. Beyond being sanctioned are the risks of spending more than should be necessary on this very expensive process or in negatively impacting the outcome of your case overall through a failure to provide, request or identify key custodians or documentation. Sanctions are not the only risk to improperly handle ESI in discovery.
How Service Providers Help
A vetted and knowledgeable e-discovery service provider should function as an overall risk manager and consultant in guiding companies and law firms toward successful processes that have been proven effective over time. Self collecting electronically stored information is not only expensive up front, initially taking employees away from the job they were hired to do, it can also be more expensive as the matter progresses; either in needing to re-collect due to issues with the initial self-collection, in collecting too much or not enough data or in additional services required to make what was collected fit every phase of the process. Advanced Discovery’s experts will help navigate the collection of ESI with an eye toward keeping your e-discovery costs down.
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Pingback: Cases Setting e-Discovery Standards | Advanced Discovery
A defensible self collection methodology begins at the firm that will eventually do the analysis or examination for the lawfirm that the company employs. It should almost always be a standing order that key managers and executives who abruptly leave the company or are slated to be terminated should have their company-owned devices (computer, laptop, cell phone, etc.) collected as soon as possible. If the policy doesn’t allow for forensic imaging, at a minimum, these devices should be locked away and not re-issued or ba accessible to anyone until an image or copy can be made. Allowing IT to re-issue or apply updates to a computer invites tampering allegations. Why risk it? This applies to shared server folders, home pages and my documents on servers. All of these should be backed up regularly and copies kept for at least six months. I’ve seen evidence of employees feathering their future job nests with current company secrets, including customer lists and pricing further back than retention policies could keep up with.
Too often, I’ve seen a good company with a poor policy get screwed when an employ left, taking millions in trade secrets, but because there was no policy or it wasn’t followed, the company is left with a problematic plaintiff’s claim.
If you can’t afford to have a forensic company make copies of ESI, then solicit what would be acceptible to them as a copy. Often times, Linux DD images or EnCase .E01 image formats are preferred. These can be created with just a little training and the software is free. Add to that a solid and defensible policy and what seemed too expensive is now a great idea. My motto has always been, “Better to have it and not need it, than to need it and not have it.”
I enjoyed reading the article and the comment posted regarding ESI. Both came in line with my course in Civil Litigation and the discovery process, especially when discovery is via electronic means. Very insightful and thank you.
Thanks for the comment Whitney! Are you out of school!
Looking forward eager to have this kind of problem over here.