In the eDiscovery lifecycle, collection is the stage of copying electronically stored information in order to make it available to the legal team for review and production. Identification determines the scope of collection while preservation ensures that relevant ESI is there when it’s needed. Collection follows and depends on identification and preservation. There are four pillars of defensible collection plans.
Collection is simple in theory. In practice, it’s frequently complicated, difficult or expensive – if not all three. Litigants have a duty to collect potentially responsive ESI, including metadata. They also must avoid spoliation of evidence, which can occur when ESI is destroyed or altered during collection. On the other hand, the cost of the collection is important to the bottom line. The expense of discovery should be proportional to the value of the case.
The fundamental goal at this stage is to make the collection both defensible and cost-effective. Defensibility and cost-effectiveness are closely tied together. Each depends on selecting the optimal processes and technology tools.
Four pillars of defensible collection plans
Defensibility is built on four pillars: software; people; process; and documentation. It’s helpful to consider them separately, while keeping in mind that in practice they’re closely interrelated.
Software – The eDiscovery software industry is highly developed. There are many industry-recognized, validated software tools for collecting different types of ESI. Generally speaking collection software is source-specific, meaning a different tool will be used to copy server email, Windows computers, Mac computers, Sharepoint, webmail, cloud storage sites, mobile devices, social media, etc., etc. In addition, some sources like Office 365 have built-in eDiscovery collection capabilities.
People – The collection should be made by an eDiscovery or forensics professional with the right technical qualifications for the ESI source at issue and the collection software. Soft skills are important too. Collections professionals must be deadline-driven and meticulous. They must follow counsel’s instructions and accurately and timely complete required documentation. Finally, it goes without saying that everyone involved in the collection must respect the total confidentiality of the process.
Process – In essence, the collection process is making an accurate and complete copy of every data source identified by the case team as a collection target. The process further includes meeting project deadlines and where applicable, following collection priority order based on custodian or source. Making reasonable accommodations for custodians’ schedules and legitimate privacy interests also falls under this heading.
Documentation – A defensible collection is backed up with copious documentation. Some of the main examples are collection forms, evidence tracking logs and software logs. My article Chain of Custody and Its Critical Role in Authentication describes the different types of documentation for copying, transfer and storage of ESI.
Cost-effectiveness has multiple factors
Most of the time there will be a range of defensible options for the software, people and process in your collection plan. Evaluate the advantages and drawbacks of each option in light of cost-related factors.
Like defensibility, cost-effectiveness is complex. It is not simply a synonym for cost. While out of pocket expenses must be evaluated, that’s only one factor – and depending on the circumstances of the case, not necessarily the critical factor.
A cost-effective collection plan takes into account:
- Risk of spoliation
- One-time cost of making the collection
- Business disruption to the client
- Custodian considerations (scheduling, privacy)
- Likelihood and burden of a supplemental collection
- Overlap with preservation requirements
- Discovery deadlines and other court orders
- Impact on review and production timetable
The guidepost for evaluating cost-effectiveness is proportionality. Is the cost and burden of the proposed collection proportional to the importance of the evidence in light of the issues and the value of the case? If the answer is no, it’s time to negotiate the scope and means of collection with opposing counsel or seek relief from the court.
Roles and responsibilities in ESI collection
Primary responsibility for the collection rests with counsel. The lawyer (or case team) managing the eDiscovery project is in the best position to evaluate and balance the numerous considerations underlying a defensible and cost-effective collection plan. Most important, the managing lawyer is able to make this evaluation in the context of the entire case.
With that said, your eDiscovery provider is an invaluable resource throughout the collection stage. They have the knowledge and experience to recommend the right software, people and process. They can help evaluate cost-effectiveness, which involves many detailed technical and cost considerations. And finally, they can most efficiently make or supervise the collection itself, including providing forensically sound collection software and completing all necessary documentation.
At first glance ESI collection may appear to be a purely technical process of copying data. However, on closer inspection it’s evident that it also involves significant legal and cost considerations. People, process, software and documentation are the four pillars of defensible collection plans.
Helen Geib is General Counsel and Practice Support Consultant for QDiscovery. Prior to joining QDiscovery, Helen practiced law in the intellectual property litigation department of Barnes and Thornburg’s Indianapolis office where her responsibilities included managing large scale discovery and motion practice. She brings that experience and perspective to her work as an eDiscovery consultant. She also provides trial consulting services in civil and criminal cases. Helen has published articles on topics in eDiscovery and trial technology. She is a member of the bar of the State of Indiana and the US District Court for the Southern District of Indiana and a registered patent attorney.
This post is for general informational and educational purposes only. It is not intended as legal advice or to substitute for legal counsel, and does not create an attorney-client privilege.