Five years after the changes to the Federal Rules of Civil Procedure relating to e-discovery, you might expect that the legal profession and technology providers would have all of the kinks worked out for the best process of collecting, reviewing and producing electronically stored information (ESI). Yet we continue to hear stories such as the recent Apple v. Samsung and Delta Airlines cases in which companies have not appropriately preserved or produced relevant ESI. What’s the hold-up?
We could point fingers in a number of directions—the judges, the lawyers, the rules, the technology—and we have. The reality is that, as we all suspected from the beginning, no “easy button” exists to quickly assess and preserve ESI in a complex and ever-changing technical enterprise environment.
To claim to have a universal “right” solution and process for e-discovery takes a certain amount of chutzpah, but consider this proposition: on-premises software for the left-hand side of the Electronic Discovery Reference Model (EDRM) and cloud for the right.
Part I of this series will discuss two aspects of the e-discovery process that companies can best address with on-premises software: pre-collection analytics and legal hold. Part II will discuss considerations for other aspects of the e-discovery process and which of them are better handled using on-premises or cloud-based solutions.
On-premises left-hand side
On-premises left-hand side means using behind-the-firewall technology to build an organization’s customized process for the following:
- Pre-collection analytics
- Issuing legal hold notices
- Collecting and preserving ESI
- Processing ESI
- First-pass review of ESI
An organization should develop these steps of the e-discovery process from within its own infrastructure because these stages deal with people and data at the organizational level. IT and organizational infrastructure are very specific, as are legal needs, not only for the organization as a whole but also at a departmental level. Having the flexibility to tailor an organization’s needs for left-hand side EDRM is a key factor in building a scalable, defensible and cost-effective e-discovery process.
A pain point at the onset of litigation is that, despite continued calls for early cooperation and coordination between adversaries, counsel is hard-pressed to make agreements about preservation and production of ESI when they have little to no insight into the volume and nature of ESI in a client’s possession. A key aid at the onset of litigation is the ability to obtain metrics on existing data stores without having to collect or even index the data. Businesses can best accomplish these analytics through an on-premises analysis of original data stores where they exist in order to assess data sources as quickly as possible.
This insight comes from a thorough analysis of metadata, which can be assessed in a fraction of the time and with a fraction of the effort it takes to collect or index data sets. For example, by analyzing the metadata on a set of computers or file shares, an organization can quickly ascertain the types of files and, most importantly, the volumes of data that exist. This analysis answers the question, “How much stuff are we talking about here?”
Through pre-collection analytics, an organization can begin to make intelligent decisions about the types of data that should be on and off the table for collection and production. For example, an organization could establish an “inclusive file set” could be where counsel proposes that files created by the end-user—such as Word documents, Excel spreadsheets, e-mail files, etc. —are what the organization proposes to preserve and produce. Non-user files such as system files, executables and .dll files are excluded from the beginning of a case as not relevant. Such cuts alone will reduce data sets at the onset of litigation by more than 90 percent from desktop and laptop computers. Moreover, counsel are making these culling decisions using an actual sampling of an organization’s existing computers, rather than by guessing the relevant or non-relevant file types.
This analysis needs to be close to where the data exists in its original form in order to access the data sources as quickly as possible.
Integrated legal hold
Automated legal hold solutions have continued to develop over the past six years. Most started as point solutions, addressing only the issuance of legal hold notices. Most, like review solutions, are also becoming commoditized with similar features and functions. Standard features include the ability to issue legal hold notices on an automated basis and the capability to monitor responses and to pose specific questions to potential witnesses.
What is not standard is the ability for legal hold solutions to aid and be integrated with the collection and preservation processes. For example, the person issuing the legal hold notices for a case often is not the same person tasked with preserving relevant ESI. An organization will have one list of potential witnesses who receive legal hold notices and a separate list used for those collecting ESI. Organizations need to constantly sync the two lists as it adds and removes relevant custodians from a case. An ongoing best practice in the process is to verify that those receiving legal hold notices are also on the list to have their relevant ESI collected and preserved.
An integrated legal hold solution keeps all information about issuance and responses to legal holds in the same database in which an organizations stores information on collecting, preserving and processing ESI. All information as to when and how a person learned of and responded to a legal hold notice is kept in the same place as information about what ESI was collected for that person and what happened with the ESI afterwards in terms of further processing and production.
Having an on-premises legal hold solution allows companies to more easily access and share information with the people who are performing collections to verify that the organization collects all relevant data sources that witnesses identify.
The need to integrate legal hold notice processes with the collection and preservation of ESI mitigates in favor of having an on-premises solution.
The need for pre-collection analytic capabilities and legal hold integrated with collection and preservation processes favors an on-premises solution, i.e., behind the fire-wall capabilities to analyze data sources and coordinate legal hold and preservation efforts at the ground level of an organization. Part II of this article will address the remaining aspects of the e-discovery process—collection/preservation, processing and review—and discuss the benefits of on-premises versus hosted solutions for these stages.