This eDiscovery collection post from Helen Geib, QDiscovery General Counsel, was originally published on LinkedIn here. Please visit the original piece to leave any comments.
Did you know December 1 is (unofficially) national eDiscovery day? The E-Discovery, Information Governance and Cybersecurity Section of the Indianapolis Bar Association observed the occasion with a full day program of CLE presentations and networking opportunities. The first session was a topic near to my heart, “Collection Mistakes and How to Avoid Them.” The key takeaway: most major collection pitfalls can be avoided with good identification and preservation practices. Effective identification means the right ESI is collected, while preservation ensures the ESI is still there to be collected when you need it for litigation.
Robert Simmons of Indianapolis law firm Wooden McLaughlin LLP gave the presentation. He began with cautionary tales of parties sanctioned for preservation and/or collection failures in some notable recent eDiscovery decisions. It bears repeating that sanctions may include fines, burdensome additional discovery, the opposing party arguing discovery failures before the jury and adverse inference instructions.
The bulk of the presentation was practical advice for sidestepping the sort of eDiscovery stumbles that can lead to sanctions – to say nothing of missed evidence and cost overruns. Simmons identified five major collection mistakes and offered detailed strategies for avoiding them.
The first mistake is not knowing the subject matter of the case. Put simply, you won’t know what ESI needs to be collected if you don’t understand what the case is about. While he didn’t use the term, Simmons’ practice tips fall under the umbrella of early case assessment. For example, talking to a subject matter expert and the client to learn the legal and factual details of the dispute.
The second mistake is not knowing the client or the data. The strategy is to build a detailed data map of relevant ESI based on interviews with IT staff and key custodians. A data map is an invaluable tool for investigating and collating information about the client’s IT systems, individual custodians’ practices and the disposition of former employees’ data. It’s worth noting that collection missteps with former employee data is a common theme in many eDiscovery sanctions cases.
Next is inadequate litigation hold procedures – also a recurring source of sanctions. A good litigation hold strikes the right balance between being too general and too narrow in scope. Leverage early case assessment and data mapping to identify the appropriate hold notice recipients and relevant data sources. It’s critical to follow best practices in drafting the hold notice, which should include a clear explanation of the purpose of the hold, set out the recipient’s responsibilities, name a contact person for questions and require an acknowledgement of receipt and understanding. Work with IT to implement a hold process for former and departing employees and to manage pertinent system settings such as email auto-delete protocols.
Another important practice tip for litigation holds is to fully document the preservation process. This leads naturally to the fourth collection mistake, inadequate documentation. Questions about scope and methodology can and do come up long after the collection is over, and nobody’s memory is good enough to supply all the answers. Contemporaneous documentation is also evidence of good faith that can mitigate against discovery sanctions. The documentation format is less important than its completeness. Litigation hold software, Excel spreadsheets and old-fashioned memos to file are all useful tools in documenting collection decisions.
The final mistake is collecting too little, too often. Multiple collections are burdensome to the client and generally lead to unnecessary expense. The typical reason for collecting narrowly is to limit data volume to keep processing and review costs down. However, if the initial collection scope is not strategic in light of the overall needs of the case, then supplemental collections will be required. The total cost of multiple supplemental collections will almost certainly be higher than the cost of a single, larger collection at the start. Simmons finished with the pertinent reminder that not everything that is collected has to be processed and reviewed.
My editorial comment is that I am strongly in favor of making one comprehensive collection rather than multiple narrowly focused collections, but (there’s always a but) it’s essential to properly dispose of the collection data at matter close. Many companies fail to dispose of duplicative or unneeded data when a litigation hold is lifted. This creates information governance headaches and extra storage costs. An even greater issue is retaining data that should properly be disposed of pursuant to the company’s data retention policy; this can lead to significant risk and cost exposure in future litigation.
For further reading: Lit Hold Best Practices and Other Tips from IndyBar CLE