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.
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.