Electronic Discovery Institute Course - Class 11 - Collection of Electronically Stored Information

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on August 18, 2017. Go to https://www.lawinstitute.org/ to sign up for it.

The faculty for this course are Anthony Knaapen, a former manager of discovery at the Chevron Corporation; Edwin Larkin, a partner at Harter Secrest & Emery LLP; and Dawson Horn, the deputy director of electronic discovery at AIG.

Collection is where material is obtained to see if it is responsive to discovery requests. It comes after the preservation stage of the EDRM. The volumes of data are growing exponentially which makes understanding standards of proportionality more important. The steps followed in the collection process should be documented.

Individual custodians can be asked to self-collect ESI. The corporate IT group can remotely grab data off servers. The third method is to hire a vendor to perform the collection. The last option will allow a third party witness to testify about the collection process.

There are different types of collections which vary according to the type of suit involved. Self collection may be sufficient in cases involving contractual disputes.

MD5 hash values are used as fingerprints to identify the documents that are collected.

Forensic collection is appropriate where there is a question about the authenticity of the data.

In a large corporation that has to address lot of different legal matters, it's advisable to have an in-house e-discovery team rather than engaging an outside vendor.

Any business will have an array of information distributed across different platforms.

A survey may be given to individual custodians to ask them where they store their work data. There are lot of different places for data to hide.

The changes to the Federal Rules of Civil Procedure encourage collection and is reasonable and proportional.

The key custodians with the most ESI must identified. Documents may have to be collected solely for internal investigations.

Outlook .pst files present a special problem in electronic discovery. These email archive files are difficult to process. It's important to make sure that employees have not saved email data in these files where they can't be located.

Metadata is information concerning documents. It can show when the last time a person accessed an email was.

A large enterprise will collect a lot of duplicative data. Each document has a special hash value that identifies it as a unique document.

Data sampling is a tool that will be helpful in situations with a large number of custodians.

The costs of collection are dependent on how long it must be preserved, and who is available to perform the collection. The review costs for having a firm going through thousands of documents is very expensive. It will usually take up most of the cost of discovery, so it's wise to narrow down the collected data as much as possible.

A litigant can apply proportionality to the litigation process. The first step is to have good faith discussions with the other side. The cost of collection may exceed the amount at controversy. If data is not reasonably accessible, a cost shifting model may be appropriate.

A corporation should follow internal guidelines for the collection of ESI. Courts will evaluate a company's good faith in complying with orders based on its adherence to its own policies.

Lawyers must understand the retention policies followed by their clients.

Parties often fail to collect ESI without altering it. Advance planning for the collection process will save a lot of trouble in the long run.