In an era of increased cost-consciousness, relying on self-collection can seem like an appealing savings, but it can also lead to dramatic downstream complications and costs
Collection activities are usually among the first expenses in any eDiscovery project, inseparable from identification and preservation, the three activities together creating the foundation for all the work that follows. Although that subsequent review and production work typically costs far more, those initial collection expenses are often treated as something to be minimized or avoided. Particularly at a time when legal departments and law firms alike are looking to tighten their belts, collection can seem a tempting place to take shortcuts in the name of savings.
Not all shortcuts are created equal, however, and self-collection is one that should almost always be avoided. Saving a minor amount at the beginning of a project by risking substantial costs, conflicts, and sanctions later in the project is the very definition of penny-wise and pound-foolish.
Why Does Collection Matter?
Effective, defensible collection of ESI is crucial for ensuring effective preservation, proper review and production, and reliable authentication:
Preservation: Fulfilling the duty of preservation is critical because almost every other type of discovery failure can be fixed with adequate time and money, but once unique, relevant ESI is gone, it’s gone (and spoliation can lead to a wide range of undesirable outcomes, including evidentiary and monetary sanctions). Although preservation and collection are nominally separate activities, they are actually the same activity for most ESI. This is because the dynamic nature of most computer systems and electronic devices make preservation in place unsafe (unless the place in question is an unused, inactive device locked away for safekeeping). Everything from standard user activities, to automated janitorial functions, to system or device failures, can potentially alter or erase relevant ESI.
Review and Production: Review and production, too, are crucial steps that can be undermined by ineffective or incomplete collection of ESI. Many core review platform features rely upon having complete, correct metadata in order to function. Even things as basic as chronological sorting and deduplication can become impossible if relevant metadata is altered during the collection process (or if time zone differences are not properly managed across sources). Moreover, you cannot review or produce what you do not have. If native files are not properly captured, if metadata is not preserved, you may not be able to fulfill the review or production requirements for your case, putting you in noncompliance with court orders or negotiated agreements, and requiring additional time and money to correct.
Authentication: In order for any of the materials you preserve and collect to be usable in depositions or at trial, they will have to be successfully admitted as evidence. The most foundational of the requirements offered evidence must satisfy is that it must be authentic, i.e. it must actually be whatever it purports to be. Establishing authenticity for ESI often requires, inter alia, demonstrating forensic soundness and chain of custody. Establishing forensic soundness requires showing a defensible collection method was used that did not alter the materials in any way, and establishing chain of custody requires having proper documentation of every step on the evidence’s journey from source to court. Employing collection methods that undermine either can create authentication challenges requiring additional time and money to meet and can, potentially, prevent admission altogether.
Upcoming in this Series
In the next Part, we will continue our discussion of self-collection approaches with a look at the risks of custodian self-collection.
About the Author
Director of Education
Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible to diverse audiences. A fourteen-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design. He leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.