I just read the blog “The Perils of Data Collection in High Stakes Litigation: Which Approach Is Right For Your Organization?” by Matthew Nelson, Clearwell’s General Counsel, posted on February 7th, 2011. The image used in the blog is the poster for the Mel Gibson movie “The Road Warrior”, and it is truly the perfect image, because just like the movie, the content of the post is amazingly dated. The post is the first of a two-part series and presents two approaches to manual collections, employee self-collection, and IT-assisted collection. The second post (coming soon) will discuss two automated approaches to collection.
The post is disappointing, not because the basic premise is wrong, it has been clear to the industry and the courts for the previous five years that automated collections (when coupled with custodian interviews) makes sense, so there is nothing new there. It’s disappointing because the technical detail is wildly inaccurate. This would have been a fantastic blog five years ago, but today it does little to move our profession forward or educate our mutual clients and reads like a long marketing diatribe.
According to the author, self-collection is inherently flawed because employees’ memories are inaccurate and employees themselves can often be unscrupulous. The first point, in my experience, is fair but misleading. It is true that trusting an employee’s memory as the sole mechanism to ensure relevant data is collected isn’t prudent. Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York recently criticized this practice in Pension Comm. Of Univ. of Montreal Pension Plan v. Banc of America Sec., LLC, 2010 WL 93124 (S.D.N.Y. Jan 11, 2010, modified Jan. 15, 2010 and May 15, 2010). In short she took issue with employee-based retention, without proper training and oversight. There are many mature solutions that can perform collections without strict reliance on an employee to remember exact files. Judges, practitioners, attorneys and solution providers alike all agree that manual collection is fraught with risk and exposes litigants to unnecessary liability. We can safely move forward.
That said, custodians are a key component in a proper and reasonable e-discovery collection phase. Employees or data custodians are likely to be the richest source in understanding the data at question. They are intimately familiar with the creation, receipt and maintenance of their files and email. No matter how good your collection technology is (ours included), attorneys are going perform the necessary interviews with the pertinent employees. So any suggestion that you can eliminate reliance on the memory of those best-positioned to provide detail is just silly. One of the largest and most sophisticated AccessData customers performs highly detailed employee interviews prior to collecting anything. Though they have the ability to audit potential data sources then execute automated, targeted search and collection with no assistance from the custodian, they choose to utilize the custodians’ understanding of the data as an asset and as key input into their understanding of a case. The result is a process that they are exceedingly pleased with, that both dramatically reduces the collected data and provides them with a process that is defensible and meets a standard for reasonableness.
The second point about employees being unreliable strikes me as a simple and rather transparent attempt by a vendor to insert some good old fashioned fear, uncertainty and doubt (FUD) into the discussion. Yes, it is true that an employee with countervailing interests might destroy data, but is the author suggesting his technology can prevent this? An unscrupulous employee will have likely received a litigation hold notice weeks before any collection was ever even contemplated. The point is if employees are going to destroy data they almost always have plenty of time to do so. That is one of the reasons AccessData recommends utilizing forensic technologies with the ability to recover deleted data when required. If an employee has a reason to destroy data he/she is likely going to be a step ahead of any collection analyst or attorney. So having technology that allows an organization to recover deleted data in instances of malfeasance or a criminal investigation is a judicious investment.
The second approach the blog addresses is IT-assisted manual collection. The technical inaccuracy in this section most inspired me to write a response. The assertion that IT-assisted manual collection inherently leads to over-collection is patently false. What leads to over-collection is the philosophy of some legal departments and associated intent to reduce risk in a legal arena that is still developing standards for data preservation. Even some of our most sophisticated AccessData customers — that have the ability to perform targeted collections and incremental collections as often as they want with no incremental costs — choose to cast a very wide net when retrieving potentially relevant data. Why do they do that? The answer is simple, because today it’s frequently the least risky approach and no logical amount of technology is going to change that. To bring the author’s understanding of AccessData’s capabilities up to date, there is basically nothing you can do with our enterprise-class solutions that you can’t do with our stand-alone product, as it relates to the meat and potatoes of data collection. Both FTK and AccessData eDiscovery have the ability to execute targeted collections over a corporate network. Keywords, file extensions, metadata filters can all be used to retrieve targeted data. Over-collection is not a flaw of the technology. Over-collection is a product of constantly evolving case law and the well-documented explosion of electronically stored information.
As I stated, I agree with the basic premise that automated collection is much less expensive and offers reduced risk when compared to manual processes. Automated collection brings advantages to the table that manual collection simply doesn’t: integrated litigation hold, automated processing, incremental collections, comprehensive auditing, ease of use and more. That said, alternative approaches have their place, and when coupled with the proper instruction and monitoring, a defensible and reasonable alternative process can be used and used well. AccessData is not in the business of pushing a particular approach. We are in the business of improving whatever approach our clients are comfortable employing.