Establishing an ESI Data Collection Process
A crucial, yet overlooked area in ediscovery

by Kyle Sparks

Executive Summary

One of the most overlooked, yet most crucial areas in the ediscovery process is the initial data collection of electronically stored information (ESI). Although not inherently complicated or relatively time-consuming, the non-forensic data collection process is often performed improperly, leading to an embarrassing, indefensible production or review, and mortifying court sanctions.

With many recent high-profile ediscovery cases reaching sanctions as high as $1M, it is clear that the need for proper ediscovery practices is rapidly growing. With this in mind, along with the newly proposed amendments to the Federal Rules of Civil Procedure tightening the disclosure window, law firms and clients alike must learn the importance of establishing and following a rigorous and proper data collection system for a strong and defensible production. Small to medium law firms can take the steps discussed here - especially firms that may not have a designated role responsible for a smooth data collection process. Establishing and following a formal process is critical for avoiding public embarrassment because of an indefensible and unreliable data collection process.

What Is a Proper ESI Data Collection Process?

A proper data collection process allows for the gathering of relevant ESI that is necessary for a defensible argument. In decades past, data collection was an arduous process consisting of manual review and photocopying of documents which could take weeks, if not months. Today, gathering and collecting data has taken on a new life, involving the need for a strong IT function and an understanding of how to turn data from computers and ancillary items into workable information.

Save Face by Establishing a Defensible and Reliable ESI Data Collection Process

The initial establishment of a data collection process lays the foundation for all data gathering going forward:

1. Establishing a steering committee project lead: Typically, the law firm’s litigation support department spearheads a data collection process, establishing both internal and external procedures. If a firm does not have such a department, a leading litigation partner should oversee the efforts, often including IT to help determine a process.
2. Developing strategy and execution: Small to medium law firms should consider their collection strategy by asking themselves, “How do we plan to empower our clients to collect their data and best utilize their IT teams?” Based on the answer, law firms should have a number of documents detailing various aspects of the collection process. The documents include, but are not limited to, a document for internal use detailing firm procedures and a document to be shared with clients instructing them how to best collect and return gathered data. Empowering the client to utilize their IT staff tends to yield stronger results, but it is crucial they are given proper instructions at the start.
3. Tailoring process for each data location; one size doesn't fit all. Various sets of instructions should be created for each data house including email, hard drives, and hard copy documents.
   • 68%-70% of all needed data comes from email correspondence. Therefore, email does not require any additional tools or spend, but rather requires clear instructions on how to zip and share an entire email in-box. Following collection, teams are encouraged to use culling tools in order to identify relevant data sets.
   • Hard drives require a bit more knowledge of IT services; however, there are a number of free and easy-to-use tools that can carry over full data and metadata needed for proper collection.
   • A surprisingly common oversight is printing a digital file and scanning that copy for collection. This practice strips away valuable metadata that should be collected. Instead, use a free robust file copy tool that allows for all necessary metadata to remain intact.

Once a process is set up, it can and should be replicated for every case thereafter.

Benefits of an ESI Data Collection Process

The benefits of proper data collection also exist outside of the realm of pleasing the courts, and professional confidence. Equally as appealing is the amount of time – and therefore budget – you can save by establishing a working program.

Additionally, a proper data collection strategy will ensure all appropriate metadata is carried over, making your review much stronger. Metadata is the embedded context for ESI that includes information about the computer it was created on, when it was created, when it was last modified, and where the file was stored. This information can be used in filtering, searching for, and prioritizing relevant ESI during your review. The inclusion of full metadata also allows for ediscovery tools such as Thomson Reuters eDiscovery Point or other case management tools to function at their highest capabilities.

Common Mistakes to Avoid with ESI Data Collection

• Outsourcing to unprepared clients: Because small to medium law firms may feel overwhelmed by the demands of having their own process, they often leave the identification and collection process to the clients. Although unintentional, clients often do not share all information that is necessary for review. Using your own process will ensure the firm is casting a wide net and bringing in all information necessary for a defensible account.
• Unequipped with the proper tools: Using basic copiers as opposed to robust file copy tools, can lose hosts of metadata required for a defensible review.
• Focusing on forensic copying: Although forensic copying can be a strong tool, going overboard and using it for all cases can be ill-advised. It is important to understand exactly what you’ll get from using the tool, which oftentimes requires an expert on hand to analyze the data.

The Bottom Line

Establishing a proper ESI data collection process is arguably the most important facet of any ediscovery endeavor. Law firms and clients alike should expect an increased focus on data collection in 2017, as the collection process has largely not caught up with the available reviewing tools. It will be important for small to medium law firms to recognize that without a proper data collection process, other ediscovery tools are not able to fulfill their purpose, ultimately affording you an indefensible – and unsuccessful – argument.

About the Author

Kyle Sparks, Certified E-Discovery Specialist (CEDS)

Kyle’s 22-year career in the legal discovery profession has traversed firm and vendor leadership roles. From paper discovery in big tobacco litigation, to building a litigation support department focused on ediscovery from an Am Law 200 firm, Kyle has obtained a comprehensive understanding of the discipline. He has a wide scope of industry software and legal knowledge from serving as an IT and lit support manager. Today, as a senior ediscovery specialist and subject matter expert for Thomson Reuters, Kyle specializes in educating clients on all phases of the EDRM model as well as rules of civil procedure.