As companies become increasingly technologically advanced, discovery of electronically stored information in litigation is becoming more common. Although companies have historically provided self-collected electronically stored information to their litigation counsel, such collection methods come with a good deal of risk.
When a company is involved in litigation where ESI becomes discoverable, custodians with relevant information should be identified and instructed on maintaining the integrity of their data, most commonly through a process called “litigation hold”. Having a solid and repeatable litigation hold policy and process in place helps to ensure that emails and documents later collected for processing and review do not suffer altered metadata or become corrupt and no longer retrievable. Prior to instituting its first litigation hold, companies should have a “data map” in hand, because relying on the memory of employees is too risky; recalling where all at issue information is stored is at best extremely difficult.
Effective Risk Management
Failure to provide all relevant ESI or allowing spoliation of ESI can result in sanctions, however, sanctions are not the only reason to mitigate corporate exposure to risk when involved in discovery of ESI. Beyond being sanctioned are the risks of spending more than should be necessary on this very expensive process or in negatively impacting the outcome of your case overall through a failure to provide, request or identify key custodians or documentation. Sanctions are not the only risk to improperly handle ESI in discovery.
How Service Providers Help
A vetted and knowledgeable e-discovery service provider should function as an overall risk manager and consultant in guiding companies and law firms toward successful processes that have been proven effective over time. Self collecting electronically stored information is not only expensive up front, initially taking employees away from the job they were hired to do, it can also be more expensive as the matter progresses; either in needing to re-collect due to issues with the initial self-collection, in collecting too much or not enough data or in additional services required to make what was collected fit every phase of the process. Advanced Discovery’s experts will help navigate the collection of ESI with an eye toward keeping your e-discovery costs down.