Litigation is expensive and clients are understandably cost conscious about discovery, especially in smaller cases where there is a real risk of the legal bills being disproportionate to the value of the case. One of the top strategies for containing costs without sacrificing effectiveness is working remotely. Simply by using online meetings with screen sharing, important tasks during the Identification, Preservation and Collection stages of an eDiscovery project can be performed without incurring travel expenses or unduly disrupting the client’s business. It’s just like being there – and sometimes even better.
Data Assessment and Mapping
Implementing a litigation hold and preparing for a Rule 26(f) meet and confer are only two of the most prominent early discovery tasks that demand a good understanding of the client’s IT systems. A meeting at the client’s office is often impractical, yet a phone call may be a less than adequate substitute. In particular, individual clients and small companies that do not have in-house IT staff often find it difficult to accurately describe their systems and devices with the needed level of detail. The same issue can arise with larger corporate clients if the IT systems are complicated or there is legacy data.
An online meeting with screen sharing by the client is a quick and easy way to bridge the communication gap. At one end of the data assessment spectrum, technologically unsophisticated clients find it easier to give a virtual tour of their ESI than to describe systems they may not fully understand themselves.
At the other end, a picture is worth a thousand words about a complex data source. As an example, in my consulting practice I’ve found screen sharing to be invaluable in database discovery. It’s far more efficient for a client to demonstrate entering data into forms, running searches and generating reports from a database than to try and narrate the process in a phone call.
Custodian interviews are a primary tool to identify responsive data sources for preservation and collection. They’re also useful in gathering facts to support a motion to limit discovery based on proportionality or other reasons. When a phone call is supplemented with online screen sharing, remote custodian interviews even offer some advantages over traditional conference room interviews.
First, they cut costs by eliminating travel expenses and are convenient because they offer total flexibility in scheduling. The benefit in cost and convenience can be quite substantial. Relevant factors are the number of interviews, number of participants in each interview, custodians who work outside of the client’s home office and the distance between interviewer and custodian.
Second, reviewing potentially responsive ESI as part of the interview is efficient. The custodian is able to share and discuss important documents and the interviewer is able to make on the spot relevance calls.
Last but not least, screen sharing gives the legal team full visibility into the custodian’s ESI. Directly viewing the custodian’s folder structure, network paths and software programs frequently prompts follow-up questions about other data sources. From a practical standpoint, it also helps in compiling an accurate target list of folders and other ESI for collection.
Remote Data Collection
The most significant cost benefits of working remotely in eDiscovery arise at the Collection stage. Defensible data collection meets three requirements:
- Use of forensically sound copying tools that preserve metadata and generate appropriate validation documentation (e.g., verification hash, data source identification, target file list, error log).
- The collection technician has the requisite technical skills and training to configure and operate all necessary copying tools.
- The collection is thoroughly documented to defend against spoliation claims and other defensibility challenges and to support an authentication certification.
Most client IT departments lack the forensic tools, particular technical expertise and staffing resources to meet these requirements unaided. Notwithstanding, many clients are reluctant to retain an outside eDiscovery or forensic service provider because of the costs associated with onsite data collection, which include travel expenses and hourly charges for onsite time. Clients’ cost sensitivity to onsite collection is often very reasonable; cost drivers include an absence of qualified providers in the area, custodians in multiple locations, numerous data sources and high data volume.
Fortunately there is a middle ground option between onsite copying and unsupervised client self-collection that is both defensible and cost conscious. Remote collections performed by a qualified collection specialist utilize the same processes and copying tools as onsite collections. The specialist connects to the client’s system via standard remote access software used for computer troubleshooting and software support.
Generally speaking, the burden on the custodian or IT staff is minimal. They are asked to give assistance by accepting the remote access request and, where applicable based on the data source, connecting and disconnecting encrypted external hard drives supplied specifically for the data collection and transfer. In other instances, client IT staff takes a more active role, but still under the direct supervision of the outside collection specialist who approves the collection protocol and monitors and documents the copying remotely.
Counsel should consult with their eDiscovery or forensics service provider on a case-by-case basis to develop the best data collection strategy. From a technical standpoint remote collection is equivalent to onsite collection for the majority of data sources, and is almost always a substantial cost saver. However, it is important to note that the best option in some cases may still be onsite collection or a hybrid approach combining onsite and remote collection. Factors include cost, deadlines, technological complications, forensics needs and other case-specific considerations.
In summary, the online meeting with screen sharing is a versatile and low-cost tool that facilitates working remotely instead of traveling to the client’s offices for a number of important eDiscovery tasks. At the start of a case, it’s an aid to data assessment and mapping to prepare for the discovery conference and meet other early deadlines. Farther along in the process, on the spot review by counsel of relevant folders and documents makes custodian interviews both more efficient and more comprehensive. Finally, the help desk-style online meeting is used for remote data collection by qualified service providers, which cuts costs without sacrificing defensibility.
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.