eDiscovery can seem like a complex process that is underappreciated by the consumer. However, it is through this process that we find something truly valuable: defensibility. And, while attaining defensibility may seem expensive on its face, the absence of it is truly costly.
Defensible is a term to describe collected data that can stand up to legal scrutiny. Broadly speaking it would apply to data that has been collected following rigorous standards, that is free from spoliation, and that can be easily authenticated.
Data acquired that is not defensible comes with significant liability for the company and potentially any employees called to testify to the collection process. In addition to the increased likelihood of a negative outcome in court (should things progress to that level), the litigant could face fines or other harsh penalties.
So how do you avoid that risk and improve the defensibility of your evidence?
There are many ways to improve the defensibility of evidence all along the eDiscovery path, from data collection through analysis. Like building blocks, the stronger your process is through each step, the better and more defensible your overall position will be.
Here are just a few tips to help your data stand up in court.
Become an ESI Super Sleuth
It doesn’t take much effort to figure out that we all collect a lot of data. From overflowing email boxes to a web of network folders, we produce vast amounts of electronically stored information (ESI). Much of that data is easily accessible and obvious to find using top-level folders and saved emails. But what about peripheral materials, such as early drafts, sent email boxes, hard- and removable drives? Files saved to cell phones? Unfortunately, it is the desire to “leave no stone unturned” that often results in companies over-collecting, wasting time and money for unnecessary data.
To be defensible, the information you collect must be complete, and to ensure a complete and thorough search, proper tracking criteria must be employed. This is your formula for success, which will help you conduct a thorough search and provide key guidance in the event that additional search(es) are needed.
Save the Metadata
A file’s metadata gives a forensic technician all the pertinent background, including the file’s source and type. Without it, you really only have part of the document. Importantly, metadata can reveal when the file was created, opened, and last modified. Just by opening a file and making changes to its location, the metadata will then reflect the modification, raising the question of whether the data had been tampered with.
The best way to collect ESI that won’t alter the metadata is to create a bit-for-bit copy of the original media and then use forensic imaging tools to generate hash values for both, confirming that they are authentic, exact duplicates. With all those different data sources (mobile phones, computer files, etc), it’s important to note that each stores metadata differently. Forensics experts are familiar with all types, and better prepared than most in-house IT professionals to collect.
Guard Your ESI Like Fort Knox
The search is done! All sources of ESI have been examined, and you’re confident that every piece of relevant information has been found. Now it needs to be stored… but where, and how?
Critical information is only valuable if it’s accessible and reviewable. With data volumes extending into the terabytes and cloud storage options becoming increasingly sophisticated it’s important to choose a solution that can support all of your data, make it readily accessible, and still observe privacy and security best practices. Choosing a data hosting provider is one of the most effective ways to meet all of your needs.
Putting it All Together
Individually, it may seem that each of these functions can be safely performed by in-house IT. However, when taken together, and with the added pressure of what is potentially at stake in the event that the scope of the search is misstated or that key evidence cannot be produced, it is generally advisable to hire an eDiscovery or forensics firm who can oversee the entire process from legal hold and collection through document review.
First and foremost, hiring an outside specialist brings with it the benefit of their expertise and acumen in the field of eDiscovery, making it very likely that your evidence will be collected defensibly. Outside specialists also reduce your company’s liability, as any litigation support company is well-versed and prepared to testify to their methodologies and procedures.
So, when preparing your eDiscovery strategy, be sure to invest in defensibility and protect your company.