Insights: Article

eDiscovery: Knowing The Limits

By Amanda Urrutia

December 12, 2017

The world of business is very hands on. As they say, “If you want something done right and to your benefit, do it yourself.” However, eDiscovery is turning out to be the exception to this rule. Judges have declared that “most custodians cannot be ‘trusted’ to run effective searches”1 and that it is “insufficient…to vest total discretion in the employee to search and select what the employee deems relevant.”2 As judges become better educated about the complexities of collecting electronically-stored information (ESI), in particular the inefficiency of keyword searching, they are increasingly skeptical of self-collection.

eDiscovery is never on the forefront of business discussions because it brings to mind issues of litigation, substantial company losses and bad publicity if it goes wrong. But it is an ever-growing necessity.

Why is eDiscovery necessary in the first place?

With the increasing volume of data present in the workplace—in addition to the evolving workforce—more information is needed to be better managed for preservation, ease of review and distribution. Consequentially, when you have employee turnover and preservation of their workstations or data is required for a multitude of reasons, one being litigation; eDiscovery is the approved method of organizing, searching, filtering and reviewing all that information for relevant and responsive data.

Should eDiscovery be handled in house by its own department?

For companies that aren’t large enough to have their own in-house eDiscovery department, they may decide that the best way to manage eDiscovery issues is by handing it down to their IT department or employees. Believing that getting it done in some fashion is better than not at all.

Recently there was a case that dealt with this issue, Suntrust Mortgage, Inc. v AIG United Guaranty Corp., 2011 U.S. Dist. LEXIS 33118 (E.D. Va. Mar. 29, 2011). This case raised issues when an employee created images of company hard drives as well as “cut and pasted several emails together to effectively create a new email chain.” All of these invasive actions resulted in the court ruling against the producing party on claims of falsification of evidence.3

When handling in house, consider these issues:

  1. Over/Under Collection
    The first is over or under collection of data. This is typically done in an unintentional manner. When a legal hold is requested or information from a user is needed for collection, either the local IT person or an email to the user will request a range of files or folders to be preserved onto external media. The most common way to do this is through copy and pasting or dragging and dropping the files onto the storage device. The problem with this is that it overlooks key files that are typically hidden on firmwide networks, such as system files that contains valuable metadata. Another problem is trying to “save the burden” of looking through what the user deems “unnecessary files.” For example when collecting information on a users’ email accounts, they may only export the inbox instead of the entire contents of the mail folder, potentially leaving valuable information from other email boxes such as sent and deleted files.
  2. Loss of Metadata Integrity
    Second, is the loss of metadata integrity. As in the example mentioned above, another thing that is extremely valuable and sometimes lost is metadata or data about the file. Metadata is embedded information in a file that can be used for the identification and activity of that file by users. Metadata is easily altered through a variety of actions, including opening, copying, moving and editing files. Forensic techniques preserve this information. Notice I stated, using forensic techniques, which is not necessarily software. There are times when it is impossible to get a third-party or the necessary forensic software. By adhering to forensic standards and techniques of documenting everything that is being done and performing them with adherence to preserve the data, it can be defended, if need be.
  3. Loss of Impartiality
    Lastly, is the issue of remaining impartial throughout the litigation proceedings. While you never want to assume mistrust on any of your fellow associates, it only takes one bad egg or misstep tocost you and your company thousands of dollars in litigation costs. Using a third-party or designated eDiscovery specialist helps prevent any arguments that may arise from opposing counsel onwhether or not information was purposely deleted through spoliation or other means.   

    Unfortunately, saving time does not always equate to saving money. Making the decision to save money and perform eDiscovery in house as opposed to outsourcing begs questions. Is itcompletely unethical to collect your own data for the purposes of potential litigation?

    The answer is: “no,” as long as you perform it in a defensible manner which takes into account all of the issues listed above. If it is believed the collection cannot be done without resulting in even one of the issues mentioned, it is in your best interest to seek a professional option when performing the collection.

1 Khoury, Alex. “Self-Collection In E-Discovery – Risks Vs. Rewards” Online Article. Law 360, 28 Aug. 2017. Web. 9 Sep. 2017

2 Linder, Courtney. “Mo’data, mo’ problems: Information systems wrestle with corporate knowledge loss” Online Article. Pittsburgh Post-Gazette, 11 Aug. 2017.

3 Merlino, Tony. “Self-Collection: The Good, the Bad and the Ugly” Online Article. FindLaw, 9 Dec. 2013.

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