by Kyle Sparks
One of the most overlooked, yet most crucial areas in the ediscovery process is the initial data collection of electronically stored information (ESI). Although not inherently complicated or relatively time-consuming, the non-forensic data collection process is often performed improperly, leading to an embarrassing, indefensible production or review, and mortifying court sanctions.
With many recent high-profile ediscovery cases reaching sanctions as high as $1M, it is clear that the need for proper ediscovery practices is rapidly growing. With this in mind, along with the newly proposed amendments to the Federal Rules of Civil Procedure tightening the disclosure window, law firms and clients alike must learn the importance of establishing and following a rigorous and proper data collection system for a strong and defensible production. Small to medium law firms can take the steps discussed here - especially firms that may not have a designated role responsible for a smooth data collection process. Establishing and following a formal process is critical for avoiding public embarrassment because of an indefensible and unreliable data collection process.
A proper data collection process allows for the gathering of relevant ESI that is necessary for a defensible argument. In decades past, data collection was an arduous process consisting of manual review and photocopying of documents which could take weeks, if not months. Today, gathering and collecting data has taken on a new life, involving the need for a strong IT function and an understanding of how to turn data from computers and ancillary items into workable information.
The initial establishment of a data collection process lays the foundation for all data gathering going forward:
Once a process is set up, it can and should be replicated for every case thereafter.
The benefits of proper data collection also exist outside of the realm of pleasing the courts, and professional confidence. Equally as appealing is the amount of time – and therefore budget – you can save by establishing a working program.
Additionally, a proper data collection strategy will ensure all appropriate metadata is carried over, making your review much stronger. Metadata is the embedded context for ESI that includes information about the computer it was created on, when it was created, when it was last modified, and where the file was stored. This information can be used in filtering, searching for, and prioritizing relevant ESI during your review. The inclusion of full metadata also allows for ediscovery tools such as Thomson Reuters eDiscovery Point or other case management tools to function at their highest capabilities.
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Establishing a proper ESI data collection process is arguably the most important facet of any ediscovery endeavor. Law firms and clients alike should expect an increased focus on data collection in 2017, as the collection process has largely not caught up with the available reviewing tools. It will be important for small to medium law firms to recognize that without a proper data collection process, other ediscovery tools are not able to fulfill their purpose, ultimately affording you an indefensible – and unsuccessful – argument.
Kyle Sparks, Certified E-Discovery Specialist (CEDS)
Kyle’s 22-year career in the legal discovery profession has traversed firm and vendor leadership roles. From paper discovery in big tobacco litigation, to building a litigation support department focused on ediscovery from an Am Law 200 firm, Kyle has obtained a comprehensive understanding of the discipline. He has a wide scope of industry software and legal knowledge from serving as an IT and lit support manager. Today, as a senior ediscovery specialist and subject matter expert for Thomson Reuters, Kyle specializes in educating clients on all phases of the EDRM model as well as rules of civil procedure.
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