When is it Okay to Self-Collect, or Should I Call in the Pros?
Every location and data type present unique challenges, so those undertaking e-discovery should know up front what you’re dealing with and plan accordingly.
By Jon Canty
Long before the bulk of our data switched from paper to electronic, we’ve been debating the question of how best to collect for discovery. The fact is, no two cases are the same, and data collection is handled in a variety of ways by each law firm and legal department. When data collection is not something dealt with regularly, it can be hard to know where to start. What is the best approach for collecting data housed in multiple locations? Who within the firm or department is best qualified to perform a collection? How do I know when we need to call in an expert? And do these answers change from project to project, or is it better to enact a single, firmwide policy?
Advances in technology have had an impact on data, and not just on sources or types of data, but also where it might be stored, which subsequently affects how it can be collected. Information is often housed in multiple locations—on premises, in the cloud or at a data center and on personal mobile devices. Every location and data type present unique challenges, and almost every environment requires different types of tools or processes. It is important to understand which collection means are best used for diverse locations and media types. The key is to know up front what you’re dealing with and plan accordingly.
Planning and Communication
When data collection goes wrong, it’s often the result of poor planning. Failing to invest the time to know not only what data needs to be collected and preserved and where that data is stored, but also how to acquire it in a comprehensive and defensible manner, is what typically compromises the process.
Many attorneys find their clients will jump the gun and try to get started with the collection process prematurely. Having early and thorough conversations about the data involved in discovery will help to put the process on the right track from the start, before anyone has an opportunity to begin collecting without having all the necessary information to do it correctly. Collection methods and processes are often part of a case strategy, so coordination among all involved is critical to ensure the collection is done right the first time.
The other factor that often causes problems with data collection is poor communication. This includes engaging the right people to aid in the planning process, but also involves providing direction and requirements to the collection team. The importance of communication and training in data collection cannot be overstated. The integrity of the collection will be at risk if those performing it haven’t been provided clear information about the data to be preserved or there is any compromise in chain of custody, for example.
While technologies and trends in techniques or best practices may change over time, the defensibility of a collection process remains critically important to ensure its successful execution, which requires thoughtful planning and clear communication at the outset of any collection project.
When does it make sense to self-collect?
There are clear benefits to self-collecting data. It’s not uncommon for a collection project to include multiple custodians with data in multiple storage environments, as well as multiple locations across the country or even around the world. In fact, issues with geography and privacy laws often have a significant impact on data collection, particularly with scheduling and the personnel assigned to perform collection. The cost benefits of self-collecting are measurable when considering travel expenses alone.
Individuals who are intimately familiar with the data are often able to locate what is required quickly and, if they know the systems well, are also able to preserve the data faster and more easily than external resources who must first invest some time to understand what they’re dealing with. Proprietary data systems such as those used in banking and other financial institutions are often complex, as they have been built over time to suit the needs of the organization using them. As such, the system and the records it holds are typically better understood by an internal IT team, and they are best equipped to grasp the details of which components must be properly preserved.
Corporate documents that don’t have a specific owner and for which the metadata is typically inconsequential are often good candidates to be self-collected. Examples might include policies and procedures, organizational charts, training or marketing materials and other documents where the original author or subsequent editors, file dates, etc., are usually irrelevant. It may suffice to simply record the original location of such documents along with details about the collection rather than incurring the costs associated with a forensic extraction.
Server mail is another example of data that is appropriate for an in-house IT department to collect, provided they have a formal procedure for performing the collection and the case strategy allows for it.
When do we need to call in experts?
If a firm has individuals locally who are qualified to perform a collection, there is no reason not to take advantage of these resources. The key word, though, is qualified. Self-collection solely to save time or money can be a shortsighted approach when it’s handled by someone who isn’t properly trained, because this individual could inadvertently put the entire case at risk.
For companies who are less experienced with e-discovery or simply haven’t established a formal data collection policy—or if that policy isn’t backed up with actual procedures—it’s a good idea to enlist a professional. Without a solid plan based on tested procedures performed by trained personnel, you introduce risk, which can result in re-collection and doubling of the costs if not done correctly. Even if you think you can save time and money by performing a collection in-house, it’s often more cost-effective and faster to hire someone to get it done defensibly the first time.
Case strategy often dictates when collection must be outsourced. Even when you have a qualified team to collect data internally, hiring an external resource is critical if the attorney’s case strategy includes using a forensic collection professional as an expert witness.
Is a standard, firmwide policy useful?
Whether your company or firm deals with discovery frequently or the need to perform collections only comes up periodically, having some sort of policy on file is always a good idea. Even if the policy is brief, it can outline the immediate questions that must be answered and point you in the right direction with respect to whether the collection can be handled in-house.
Because discovery often moves at a rapid pace, being prepared or at least knowing where to begin can put things on the right track at the start. It’s important to know the case strategy and have a defensible plan, along with clear communication among anyone involved in performing the collection. It’s also important to know your limitations. While self-collection is fine in some circumstances, be ready to call in the experts when the case demands it. Your policy should include a short list of vetted experts you can trust when a professional forensic collection is required.
Jon Canty, founder of Sandline Discovery, has worked in e-discovery and litigation support since 2006 in roles including e-discovery consulting, law firm litigation support and in-house corporate litigation support. Prior to starting his first company in 2010, he served as litigation support manager at the Washington, D.C., office of the firm Kirkland & Ellis.
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