Conflating preservation and collection is the first misstep toward inefficient data preservation.
A leading cause of inefficient data preservation is a misunderstanding of preservation versus collection, two connected yet different steps in the eDiscovery process. Data preservation is like sticking food in the freezer – now it’s available whenever you need it. Data collection is pulling that food out later in preparation for a dinner party. Your case is the dinner party!
The following inefficiency traps have the potential to ruin all of your party planning and send you running back to the kitchen in tears with no hope to recover. However, a little awareness and the correct tools can go a long way toward helping you avoid such a catastrophe. When preparing for your next case, being aware of the following inefficiencies will allow you to enjoy the party, knowing you got the planning right the first time.
1. Manually issuing & managing litigation holds
The first and most important step in the data preservation process is issuing a litigation hold or legal hold notice. An inefficient legal hold process not only begets inefficient preservation and higher costs, but it is much harder to defend. For organizations who only face litigation once in a blue moon, manual litigation holds might still be acceptable if done correctly. But with any real volume of cases (even just a few matters a year on average), using email and spreadsheets to manually send, track, and update legal holds and custodian questionnaires wastes valuable time and company resources. And as usual, the more manual the process, the more opportunity for human error.
A more efficient and defensible alternative is an automated litigation hold & custodian questionnaire solution. These solutions used to be very expensive (in the six figures), so understandably many organizations avoided them. However, today you can purchase automated web-based solutions that are instantly available, require no hardware provisioning or software installations, and cost a fraction of older pricing models. For as little as a few thousand dollars per month or less, these systems will automatically issue legal holds, track custodian acknowledgements, send acknowledgement and routine reminders, escalate requests to a custodian’s manager if they don’t timely respond, and provide comprehensive reporting. They usually include an incredibly efficient Custodian Questionnaire process as well, further saving you time and costs.
Automating your litigation hold process not only gives it bulletproof defensibility, but it can eliminate hundreds of hours of manual labor when your employees focus on their actual jobs instead of getting distracted by legal processes. For more efficiency still, many of those systems can integrate into Office 365, Systems Applications and Products (SAP), and many other enterprise systems. The ability to automatically turn on the legal hold functions within those platforms further improves the defensibility of your process and eliminates time-consuming tasks from your IT team’s plate.
2. Preserving too little data too late in your case
Among the most common reasons for eDiscovery sanctions today are:
- (a) failure to preserve all relevant data; and/or
- (b) not taking steps soon enough to preserve data before it gets deleted (automatically or otherwise).
Sanctions used to be common throughout the discovery process, but that changed with the 2015 updates to the Federal Rules of Civil Procedure which many states follow or mirror. Under the current rules, even if you make a mistake or don’t produce something you should have, as long as you can later correct that mistake or failure, the court generally deems sanctions unnecessary. However, if you can’t fix your mistake because you failed to preserve the data in the first place, sanctions are much more likely.
For example: Company A gets sued for allegedly violating a non-compete agreement that barred them from selling to a particular client or set of clients. Company A is asked to produce all records related to those clients, but in doing so they only search and produce email. Later, during depositions, the opposing counsel finds out about additional software applications and a customer resource management database that Company A uses. Opposing counsel can complain that those items didn’t get produced, at which point the Court might compel the production of that data and let the opposing party retake some depositions or extend certain deadlines. But as long as that data was preserved, most likely Company A would not face monetary or more severe sanctions. (This is why taking advantage of available legal hold features is so important, especially when they do not incur a cost and automation can be achieved in such a short period of time.)
On the other hand, say those systems in question only retained data for a year, and it wasn’t until six months into the case that opposing counsel found out about them. If Company A didn’t identify those systems from the outset as relevant and take steps to preserve the data therein, then that oldest six months of data – which just so happens to be in the relevant time period – is gone forever. In that case Company A likely would face monetary or even case-ending sanctions for failing to preserve and produce that relevant data. (The type of sanctions gets determined by the importance of the data lost to the case overall and whether failure to preserve that data was accidental, negligent, or intentional.)
The bottom line: identify and preserve everything that could be relevant to a case, and do it as quickly as possible. We encourage our clients to cast as wide a net as possible and over-preserve (not to be confused with over-collecting). Especially with modern systems like Microsoft 365, preserving data is cheap and easy. It’s a switch in the eDiscovery panel—and depending on the platform, even that switch can be automated. There’s really no excuse for not using these features, or putting yourself in the situation of having to explain why you didn’t use them. Once you’ve preserved the data, you can focus on narrowing down the scope before you collect, process, and review it. Being overly cautious in preservation has no real significant cost, and it can end up saving your case.
3. Using data collection as a preservation strategy
People often conflate these two steps in the eDiscovery process, and it’s not uncommon to hear someone talk about collecting data to preserve it. The reason for this consolidation is that in the early days of eDiscovery, preservation and collection used to be basically the same thing. So, what changed?
- Data Volume
When data sets were much smaller, it made more sense to collect data as a preservation strategy. However, if you have a modern-day case involving many terabytes of data, collecting all that data blindly will make your eDiscovery process astronomically expensive. Instead of collecting all identified data, a better strategy is to just make sure it cannot be deleted. Preserve it in place under a legal hold until you figure out what’s important for your case (which often happens further down the road). When you reach the point where you need the preserved data, then you can collect, review, and produce the identified data sets without risking a spoliation claim.
- Data Complexity
Along with sheer volume, data complexity has evolved since the early days of eDiscovery. It’s not the case anymore that data lives in just a few places. Data is everywhere now. Places to store data include Microsoft Teams, Slack, Outlook email, CRM, cloud storage, local computers, servers, mobile devices, social media, and many, many more. It is much more efficient to identify the authentic data sources and preserve everything in place using eDiscovery tools. You can perform a targeted collection later, once you’re equipped with intel from custodian interviews and the Meet and Confer conference.
- Legal Hold Technology
Back before approved legal hold features existed and when it was much more difficult to preserve data in place, the only way to ensure data didn’t get destroyed was to collect it (make a copy of it) ASAP. But with today’s modern cloud-based systems, you don’t need to collect the data to preserve it. Most enterprise systems – especially enterprise email systems like Microsoft 365 (a.k.a. Office 365), Teams and many others—have a legal hold feature that can be turned on in seconds with the simple check of a box. The best legal hold software solutions integrate with many of those enterprise systems so that when a custodian is put on legal hold, the “preserve” switch automatically flips for you. Enterprise software plans commonly include such features without incurring additional costs, which could postpone the need to collect that data while still protecting from potential spoliation issues. An eDiscovery expert can identify these features and help enable litigation holds for data categories such as Email, Chats, SharePoint and more.
Protect your case and your wallet by eliminating data preservation inefficiencies from the onset of your case.
In our twenty-plus years of helping law firms and corporations develop and improve their eDiscovery processes, the inefficiency hurdles listed here are ones we see repeatedly in clients’ data preservation efforts. Stay tuned for more on Preservation, Collection, and the crucial steps in between, including custodian interviews and the Meet & Confer conference. In the meantime, we invite you to reference our litigation hold template, book a demo of our automated legal hold software, or reach out to one of our experts today.