Preparation Is Key to Successful EDD
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Careful planning will speed and simplify electronic data collection
Trent Livingston and David Thornquist
New Jersey Law Journal
Attempting to gather electronic data can be a staggering task due to the multiplicity of storage sources both stationary and mobile, not to mention the volume of data they hold.
As with many undertakings, the first steps can be the most critical. One misstep can be costly to both you and your client.
Collection of electronic data can be a daunting task, but knowing what you're up against is the best start to untangling the morass of e-mail and electronic files that you may uncover. Taking an active role in collection planning is the important first step that will speed and simplify the remaining steps of the process as your team moves forward.
KNOW THE NETWORK
You've just been provided a list of names relevant to your matter. The knee jerk reaction is to take the list and ask for all data related to the "key players," but be careful with this approach. Data targets may be different than they appear on the surface. Understanding day-to-day operations will shed light upon the dark corners where data could hide. Interviewing technical staff can be a great asset prior to beginning an extensive collection.
A real life example involved an executive considered pivotal to the matter who had never used the corporate e-mail system. A cursory investigation found a practically empty hard drive containing nothing but irrelevant system files. The initial reaction was to move to more time-consuming and costly forensic measures. However, an interview with IT staff revealed that the executive's personal assistant would print his incoming e-mail, he would compose a written response, and then his assistant would send his response via her e-mail account on his behalf. This interview quickly revealed that all relevant e-mail archives were located on the assistant's computer, allowing for a quick change to the collection and preservation plan that focused attention to the proper data source, previously unidentified.
The technical interview is essential to identifying sources that may not have been considered when casting the initial data net. With the variety of data access and storage solutions on the market today, these interviews can aid in targeting the right media for the most current and relevant data. Insights to network policy can shed light on external data sources that may be outside the original target, such as personal computers used for remote access to the network. Not knowing what network policies are in place for telecommuting could leave untapped sources of hidden data critical to your matter.
Interviews such as these can also uncover legacy, nonstandard and/or outdated data archive systems that can delay an EDD investigation due to the need for some type of secondary conversion or specialty program to interpret the information. Data of this nature can delay time to review by weeks and possibly even months if not properly accounted for within the project collection plan. Technical interviews can provide an insight to the pertinence of this data, and determine whether more complicated collection efforts must be undertaken. If warranted, your team can react quickly and move to prioritize this data.
Making use of technical staff interviews to identify the network, both social and electronic, can avoid over- or under-inclusive collection and preservation methods. This could potentially save tremendous expense in processing, conversion, and hosting costs, in addition to hours of attorney review time of non-responsive documents.
UNDERSTAND THE DATA
By taking an active role in collecting and planning process, your team will learn the data's predominant format (e.g., Microsoft Exchange, Lotus Notes, Microsoft Office). This provides an edge in determining the most efficient and timely way to review the data at the lowest cost, whether the review destination requires conversion to TIFF, a native review platform, or a combination of both. By understanding the data, your team can properly formulate future and effective data requests.
Wading through electronic data systems, the "file cabinets" of today, isn't as easy as "point and click." On average, laptop and desktop systems have between 40 and 80 gigabytes of hard drive storage capacity. One hard drive alone can easily result in more than a million pages for review. Network storage can dwarf this in size by tenfold or more. If backup systems become a target, the amount of data can become even more staggering. The typical rule of thumb when estimating a collection is to anticipate 12,000 to 15,000 files per gigabyte. With volumes like this, your team could soon be drowning in a sea of digital data without careful planning of data collection.
Given the volume of data and the storage capacity of a network, laptop, or desktop computer, targeting data is essential. The collection plan should initially target data sources that are readily available and not tucked away in some obscure backup tape in a dusty closet or storage facility. Using the information contained in the initial collection to identify other data sources allows your team to narrow future targets and make preservation efforts more efficient. This in turn increases your chances of remaining on budget and within deadlines. Whether it is necessary to do a broad collection or a small, focused one, taking time to plan at the outset may circumvent the financial and time-consuming pitfalls data collection and preservation can present.
MAKE A PLAN
Thomas Allman notes that, as a result of the Zubulake decision, "Outside counsel should become more directly involved in the initial planning for preservation in specific cases and should be prepared to affirmatively offer to oversee the ongoing preservation efforts of inside counsel while candidly commenting on any noted deficiencies." Not being involved in this initial and important part of EDD could not only slow the process and make for possible timeline delays, but also be disastrous to your firm and client.
A good plan starts by focusing on the components of the network and then expanding upon those to incorporate the most relevant data targets. Most collections can be viewed as a pyramid, by which a broad-based collection results in a much smaller number of relevant documents. However, to ensure that the foundation of that pyramid is solid, your team should utilize the initial data that leads to relevant documents to expand and further focus the collection and preservation efforts.
Components of a good collection plan incorporate:
• Identifying possible key users outside the original scope of investigation;
• Issuing the proper stop destruction notifications;
• Identifying legacy or anomalous data that may require specialized processing or conversion prior to review;
• Identifying key data locations on the network;
• Finding hidden data outside of the "controllable" network;
• Instigating an ongoing collection system and methodology;
• Avoiding inclusion of erroneous files and data;
• Preventing unnecessary and costly "heroic" methods to obtain data; and
• Devising a timeline noting each collection goal.
Properly planning a targeted collection can result in a positive outcome that will rapidly accelerate EDD. It can give your team insights into the data and its content prior to actual review, along with controlling and understanding the costs involved in processing and loading to your selected review environment. Additionally, it can avoid destruction of data that is essential to your matter while avoiding costly efforts to attempt to recover mission-critical data.
Livingston is senior project manager/consultant and Thornquist is an attorney and consultant with SPI Litigation Direct of Phoenix, Ariz.