Getting More Visibility into Collections
Last time, I wrote about the right considerations when drafting or updating your standard litigation hold language and processes. Today I’m keeping along the same theme as we move to the next phase in your matters: Collection.
I don’t know about you, but for many legal professionals, collections have long been a very elusive black box of technology, specialists, and money. I think with the advent of new technologies and planning to go alongside them, we’re poised to usher in a really exciting time of more visibility, reduced cost, and just down right easier processes.
Preserve or Collect?
First, I don’t think we can talk about collections without talking about preservations. We used to need to over-collect because frankly, in a lot of systems, collection was the only way to make sure the data didn’t get spoliated. This causes a lot of headaches on the risk and information governance side, what with having copies and copies of data sitting around in various folders both internally and at outside counsel and service providers.
Happily, a lot of systems have recognized that this need to collect was a real shortcoming, and now offer the ability to preserve in place. My first tip therefore is see if you can preserve instead of collecting. If you can simply preserve the data, there will not be any copies floating around to manage, and when a case is over, you can simply lift the preservation.
A lot of litigation hold systems, including ZDiscovery, allow you to automate the preservation process too, so you get the preservation peace of mind instantly, plus the visibility into the preservations straight from the legal hold interface. Look into this automation either out of the box with the system itself, or within your litigation hold application. Cloud based systems are more likely to have this functionality baked in, and come with the added benefit of typically being more secure, and having no maintenance burden on the customer side.
The Automation Advantage
Even if the systems don’t have a pre-built integration, often this can be done with relative ease through API connections, so my second tip is to automate as much as you can. This reduces the potential for missed steps, as well as human error.
Even if a system doesn’t let you automatically preserve, it’s still worth checking whether or not there is a way to manually do a preservation. Preservations will almost always be faster, safer and more cost effective than a collection, so if the intent is to collect to preserve, pivot as many systems as manageable into a preservation in place instead.
Preservation is great for the purpose of ensuring data doesn’t get lost, but of course in a lot of matters you’re going to eventually need to actually collect the data so that it can be reviewed.
Keep It Reasonable
The costs related to collection typically rise as the number of systems and the number of custodians increases, so my next tip is start as small as is reasonable. I have a client who negotiated with opposing counsel to get the initial custodian list from over 1000 to 20 and the cost savings just in that one case are not insignificant. If you have a large custodian list, try to negotiate it to just the key custodians to start with.
Similarly, if you need to collect email, some project files, and then a little bit that might be potentially relevant, but is in some really complex system, see if it’s possible to negotiate the first wave of collection being limited to the standard systems. You’ll get insight into your data and what the appropriate position and strategy to take are, and you may or may not ever need to get to that more complex system.
Whether you’re preserving data in place, collecting it, or a combination of both for a particular case, one thing you should make sure of is that you are staying consistent. My main tip on this point is to remember that consistent tracking and methodology aids in defensibility. While each case will have specific considerations to bear in mind, having a consistent approach ensures that you are using a vetted process and that steps aren’t getting missed.
As to the tracking, you’ll often find that you have to use different methods to perform collections from various systems, simply due to the nature of those systems. If you still leverage a centralized tracking system. It’s more important to be consistent than it is to use a particular system, as long as your practices are defensible.
Senior Director, Solutions Engineering
Jennifer is a technologist focused on strategy, customer experience, workflow, process improvement, and product in the legal tech industry. She has worked in software and technology for over a decade, and holds an M.A. in Strategic Communication. She currently leads Solutions Engineering at Zapproved, where she ensures product feature functionality and technical capabilities are designed and implemented in ways that solve real world problems. Jennifer is a speaker and content contributor on a variety of technology, data preservation and ediscovery issues, and is the Chair of the PREX Conference.