Congrats to Exterro for another great E-discovery Day! We saw a tremendous set of topics and presenters covering a variety of pressing discovery challenges, and how firms can best address them. I was honored to join the discussion of “How Much Do I Actually Need to Preserve and Collect?” with the Honorable Ron Hedges, retired US Magistrate Judge and now Senior Counsel at Dentons.
After all of these years of discovery, many firms continue to be unclear on what constitutes “reasonable steps” to preserve data during e-discovery. The Judge’s guidance on this topic was concise and to the point: “Educate your workforce on the process, and monitor how the process works. So at the end of the day, you can go back to the court with information that’s been lost and say, ‘these are the reasonable steps I’ve taken.’ It’s one thing to say, ‘I do this,’ but it’s another thing to make sure it is in fact done.”
You can’t argue with the wisdom of demonstrating reasonable steps by having a process and following it. However, when the phrase “How much?” is raised you also introduce the topics of proportionality and cost. This, in turn, raises several new considerations, including:
- New sources of Electronically-Stored Information (ESI): As organizations adopt new tools to communicate and collaborate, discovery is increasingly moving toward new, dark corners, including social media, text messaging, collaborative platforms, and personal devices. With the average Fortune 500 firm supporting more than 30 different communications networks, ESI can be hiding in a variety of haystacks, with needles often traveling freely. More haystacks means more expense.
- Wide variety of methods of collection: Each communication source is different, some with well established methods of collection, some not as much. In some cases, firms do not fully appreciate the challenge and expense of attempting to collect directly from a content source or from a third-party service provider until after a discovery event goes less than smoothly. The market for collection technologies and services is evolving rapidly, so the challenge of estimating the effort and expense in establishing what is proportionate will only become more complex.
- Lack of custodian control: Unlike the world of emails and documents, social media and mobile applications are difficult for custodians to control. User controls for data downloads can be confusing or limited, while screen scraping methods of collection can be difficult to prove authenticity and offer only a point-in-time view of what has happened on that particular network. Less reliability of custodian self-collection and preservation can lead firms to increase use of outside services or methods that are not optimized for that specific communications network.
- Context: Understanding what was discussed on a social or collaborative network like Microsoft Teams or Slack is a fundamentally different task than reviewing email or text messages. Events in a chat room, such as who attended or left, or who altered a message or shared a file, can add important context to an investigation. Since understanding context is imperative to e-discovery, the natural questions that should follow are not just how much content do I need to produce, but how much content, context and metadata should I attempt to collect and preserve in order to avoid a review debacle later on.
Ultimately, this topic should bring the question of proactive versus reactive collection and preservation back to the table. The equation is now more complex, because the reactive cost calculus needs to consider the frequency of collection times, the average volume per discovery multiplied by a significantly larger number of content sources per matter. For some, this may swing the pendulum toward a more aggressive retention policy and strategy to bring more of these social, collaborative, and mobile content sources under control within their information governance programs. Short of that, firms are well advised to make sure they have an established plan upfront that considers what communications sources are in use, what methods they intend to use for collection, and how they anticipate reviewing rich, dynamic content as an ever increasing percentage of their over-all e-discovery obligation.