When counsel for an organization has knowledge or belief that litigation has begun or can reasonably be anticipated, a legal obligation is triggered requiring that reasonable steps be undertaken to maintain relevant and discoverable ESI. The responding entities and their counsel have an immediate legal duty to identify potentially relevant ESI sources to preserve in good faith. Key custodians must be identified quickly, and their relevant ESI preserved. Other relevant ESI not held by custodians (in databases, or on data backup systems) must be preserved as well. All should be aware of the potential for civil and criminal consequences for destruction of potentially relevant evidence.
Best practices for the identification stage begin and end with smart lawyering--reaching out and quickly learning enough about the key issues in the matter and the organization's employees involved so that relevant ESI can be located and preserved as soon as possible. The vast majority of e-discovery sanctions are issued for failure to preserve, so a strong identification and preservation process can mitigate an organization's biggest source of e-discovery risk.
The task is to identify all employees, information repositories (e.g., group shares, SharePoint, document management systems, e-mail archives), and back-up systems that may contain potentially relevant ESI. Much of this involves investigation and interviews by the legal department. Because most evidence now lies on an organization's network, a network-enabled technology to both assess and collect relevant data sources is a force-multiplier in these efforts.
Experience teaches us that identifying evidence sources--like legal hold and collection--is accomplished faster, cheaper and better with an integrated enterprise e-discovery technology. A reasonable and defensible evidence identification phase will include:
- Searching for hard-to-identify custodians. For example, a metadata scan provides a fast and efficient way to scan through dozens, hundreds or thousands of employees' ESI prior to collection. By collecting and analyzing metadata only (without collecting the entire document), one can scope and assess the case and the size of the collection accurately and thus plan accordingly. The legal team can receive a report on which employees and data sources have been found with potential ESI meeting the search criteria.
- Quality control of search criteria through sampling. Most judges are now asking for proof of quality control measures applied to search criteria to demonstrate reasonableness. Having the capability to view and sample the filtered data from custodians during the identification phase, the legal team can test and modify search criteria to remedy false negatives and false positives in order to produce a defensible responsive data set.
- Verify ESI sources and volume of potentially relevant data. The right technology should be able to scan all potential data sources and run a case screening report. This report is different from a metadata scan because it reports on all file types (.doc, .txt, .xml, .ppt, etc.) on a target hard drive and the volume of data associated with the file types. You'll receive a report on how much relevant ESI would be collected from each custodian or data source before you actually collect it. This will help you plan for the upcoming steps of the e-discovery workflow in terms of resources and budget. If the volume of ESI seems too small or too large, you will know before the search is conducted while changes can still be easily made to the search criteria.
Running these initial scans and tests is much easier with an in-sourced e-discovery process and will bring dramatic cost savings by avoiding over collection of ESI through quickly identifying just the potentially relevant ESI and preserving it using a defensible and repeatable process. These processes allow counsel to jump on the identification and preservation obligation immediately and start gaining insight into the case in real time, without waiting to engage outside vendors.
It is worthwhile thinking of ESI preservation as a continuum that begins with identification and continues through the litigation hold and ESI collection processes.
Smart lawyers take advantage of the litigation hold process to enhance the success of the identification phase. A good litigation hold technology enables not only the sending of electronic notifications to custodians about the hold, but also can pose web-based questions for the custodians to facilitate the interview process as well.
Typical questions to ask include:
- Identities of additional custodians
- Suggested search criteria that will capture relevant ESI (i.e., did a project or product have a code name, were certain acronyms, jargon or slang used)
- Off network locations of the custodian's ESI such as external hard drives, thumb drives, CDs or DVDs, home computers, online storage or in the cloud
- Locations of any relevant paper documents
While it is a best practice not to rely solely on a custodian for identification and preservation of relevant ESI, it is smart to query the custodians via a questionnaire on the topics mentioned above as part of discovery due diligence.
Organizations that take a proactive approach to identification greatly reduce their preservation risks, which allows for litigation to be resolved on the merits. Smart lawyers systematize the identification process, build a reliable e-discovery team to execute it, and equip them with the appropriate technology to accomplish the tasks.