Inside Experts: Email’s reign as e-discovery top dog comes to an end

E-discovery has become increasingly heterogeneous in the past decade.

Symantec Corp. recently issued the findings of its 2011 Information Retention and eDiscovery Survey, which examined how enterprises manage their ever-growing volumes of electronically stored information (ESI). Interestingly, the survey of legal and IT personnel at 2,000 enterprises worldwide found that email is no longer the primary source of ESI companies produce in response to e-discovery requests and governmental inquiries. 

When asked what types of documents were most commonly part of an e-discovery request, respondents selected files/documents (67 percent) and database/application data (61 percent) ahead of email (58 percent).  Unlike a decade ago, the survey reveals that email simply does not axiomatically equal e-discovery any longer.  

Often, the first major e-discovery task is to preserve potentially relevant ESI so that it isn’t intentionally or unintentionally lost, altered or deleted.  Database ESI is particularly vexing here because relational databases are always in constant motion, meaning that an application like a customer relationship management (CRM) system will have ESI elements that are conceivably updated, viewed, modified and exported by hundreds of users on a nearly simultaneous basis.  While it’s often possible to take snapshots of these relational databases, any attempts to literally preserve this information would mean preventing users from making full business use of the applications, and would likely result in rioting in the streets.

Loose files are in some ways a much easier preservation situation since those ESI elements, like Word documents stored on a network share drive, aren’t as often in flux or linked to other content in a relational sense.  The challenge here instead involves associating content with key custodians that are under a legal hold since the unstructured nature of the information makes it harder (if not impossible in some instances) to discern ownership information.  For instances where ESI needs to be preserved strictly due to content topics, like in patent or product-related litigation, the challenge is that this unstructured information often is not indexed, meaning that keyword searches aren’t possible.

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Dean Gonsowski

A former litigator, general counsel and associate general counsel, Dean Gonsowski is the global head of information governance at Recommind and has more than 15...

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