As a third party brought in by case teams, e-discovery service providers don’t typically have full, instantaneous insight into the environment they’re collecting from. We rely, to a large degree, on the legal team and the client for the context of the project and to point us to the appropriate data locations in their environment. We help the case team understand the IT environment and consult on the process and approach, but collecting data effectively requires very close collaboration.
Regardless of the team you’re on—inside counsel, outside counsel, or service provider—there are three important things to do before running a collection.
1. Get all parties on the same page
First, it’s important for the client’s case team and the IT team to build consensus, as they typically guide service providers to the data they collect. Service providers need to have a good handle on what it is they’re after, why they’re after it, and what the ramifications of collecting it are going to be.
Typically, we’ll have an initial call with our client’s case team. That will often lead to a discussion that involves them, their client—typically someone from their IT department, but not always—and us. The case team and their client’s IT team will have an understanding of what it is that they’re after as far as custodians, locations on the network, and systems involved. Make sure you ask all the questions you possibly can to highlight any areas of concern you have. When the collection is actually underway, everyone should be comfortable with the goal.
If you get to a point where collection is happening and you still have outstanding questions, take a pause, circle back, and raise your concerns. You may only get one bite of the apple, so make sure you get what you need in that first go-around. In general, I proceed with the assumption that I will never have another opportunity to collect from an environment. If that means exhaustive discussions and planning upfront, so be it—as long as all involved will have the best understanding and a better level of comfort with the process.
2. Empower the case team with IT information
We are really consultative with the case team because they are often at a technical disadvantage, and it’s important to us to bridge the gap between the case team and their client’s IT team. One of the steps in the process is to get a handle on the IT environment you’re collecting from—to understand the systems that may be in play and understand the infrastructure to make the best decisions. One of our jobs is to get the case team that insight as early as possible.
A good service provider is a proactive advisor that relies on a case team for key information. If a case team tells us they want to collect from certain directories, we might suggest other locations and other systems. We might also ask if they’ve considered other custodians, but in the end it comes back to the case team. It’s their case and their client—they know it best.
3. Choose the most practical approach within the parameters of the case
When it comes to collection strategy, we discuss the pros and cons with attorneys, but our approach really depends on the nature of the case. A targeted strategy, rather than forensic imaging, is certainly defensible and allows for a quicker, easier, less expensive way to get at the data. It’s just a question of how contentious the case is and what issues are at play.
One concern is if there are strict budgets to stick to. It could be that the potential reward or damages at play in a case don’t warrant spending exorbitant amounts of money on the e-discovery piece. While it may seem necessary at first to collect and filter through everything, it’s just simply not practical or proportional in most cases. Consider budgeting concerns, best practices, and the needs of the case in choosing the most practical approach.
