The old tried and true collection processes are often flawed, resulting in inaccurate data that creates discovery risk in the courtroom. Today the problem of providing inaccurate data is on the rise. A recent analysis of cases prior to 2010 by King and Spalding found there were more eDiscovery sanction cases and awards in 2009 than in any prior year. In fact, there were more eDiscovery sanction cases in 2009 than in all years prior to 2005 combined. The report also found that failure to produce ESI was the most common basis for sanctions. This has paved the way for new technology innovations for better eDiscovery collection.
The pitfalls common with traditional approaches to ESI collection include; dates changed due to indexing translation, content being overlooked from file-level versus bit-level discovery, even the disappearance of entire emails and files due to faulty restoration processes. Therefore, it is imperative that the discovery team works closely with IT to ensure your company maintains a sound and defensible collection strategy. There are four major identification and collection areas that should be reviewed when collecting Electronically Stored Information (ESI). These strategies include:
IT and legal must work closely together. Initially it is imperative that IT and legal work closely to look at the current online network data. IT is aware that deleted emails are recoverable from an Exchange server. And most often, the most untampered source for email collection is email residing in offsite storage, typically on backup tapes. In the past, legacy backup tapes were often overlooked because it was historically difficult and expensive to collect data from them.
Be proactive with legal requirements. Get ahead of the curve by proactively managing legacy data. Know what data should be kept and what can be purged. By determining this, a company can develop a policy to save specific content so that is identifiable and ready for on demand discovery. This is the first step in a proactive strategy.
Understand the limitation of technology. Knowing the limitations within your technology platform is critical to your success. Only use tools that index all the content and don’t change any of the metadata. Understand how duplications are defined and whether the metadata is modified. Some of the older search solutions compromise the indexing process, which will affect the outcome of your discovery.
Become a discovery expert. New technology is able to improve and strengthen the discovery process. New technology can search out a single email without duplicating the original environment. It is possible to make tapes searchable by creating an index in the cloud for review. Then the bit of data that is requested can be pulled with very little effort, expense or time. With less than 5% of old legacy data being relevant, today’s new technology eliminates the unnecessary process of restoring and then rebuilding the data.
For more information on electronically stored information and the strategies and techniques that make ESI more collectible contact Index Engines.