by Kristy Esparza
on July 13, 2020
Over the past few months, remote work has become the new normal, often forcing teams to rethink how they approach their day-to-day tasks. e-Discovery collections are a prime example of a task that’s been heavily impacted by the shift from regular offices to home offices.
“Office closures make it impossible to physically collect onsite,” said JND eDiscovery VP of eDiscovery & Analytics Ben Sexton. “In instances where we’d traditionally fly someone out and plug in a device, we are now deploying remote solutions to perform collections.”
Ben was one of five participants on a recent webinar presented by Relativity Developer Partner X1 that tackled the remote collection challenge head on. Throughout the hour, the group discussed why physical collections just won’t cut it in a remote world—and how you can succeed with remote collections.
Even as offices start to reopen, much of the world will continue to work remotely at scale. Household names like Facebook and Spotify, for example, have extended their work-from-home policies into 2021. And this increasingly remote workforce will continue to present a host of challenges for e-discovery professionals to consider when performing a collection.
“During scoping interviews, we’re finding that custodians are using personal devices at home to access content, along with their work-issued laptops,” Ben said. “The combined influx of new devices and the geographic decentralization of those devices presents a logistical nightmare for traditional onsite collection.”
To avoid the nightmare, it might be tempting to have custodians collect their own data—but that’s something David Horrigan, discovery counsel and legal education director at Relativity, strongly cautioned against.
“You’re asking to get into hot water with the court if you rely on self-collection,” he said. “I think that Craig Ball put it best when he said, ‘It’s like having a fox guard the henhouse.’ If you want to have defensible procedure in front of the court, you need to have some sort of process that’s defensible and does not involve people collecting their own data.”
Thankfully, performing defensible remote collections is more than possible, and there are a few steps to help, starting from the onset of your case.
Since the 2015 amendments to the Federal Rules of Civil Procedure, there’s been a heightened emphasis on proportionality—though it’s typically not brought into e-discovery strategies until after data has been collected. The webinar panelists, however, had a different suggestion: use proportionality early as a collection strategy.
“There’s often a gap between the identification and collection where proportionality can be leveraged as a means to right-size discovery early and align it to the merits of the case,” said Mandi Ross, CEO & managing director of Prism Litigation Technology. “Addressing proportionality earlier in the process provides valuable institutional knowledge to the case team, and it also dramatically reduces the volume of content and downstream discovery cost.”
Mandi advises the use of the identification stage of the EDRM as a mechanism for classifying and reducing the number of custodians and the number of data sources. Specifically, she recommends three steps:
When litigation is filed or anticipated, organizations issue a legal hold, which often includes a data usage survey to gain an understanding of where relevant content might exist. Don’t underestimate that survey—it can eliminate some collection effort down the line.
“Using the complaint and answer, you can create a short list of questions that align to the claim and defenses and use those questions to organize custodians based on their level of relevance,” Mandi said. “In addition to the questions, you can create a mechanism for scoring the responses to each question, bearing in mind that some claims might be weighted more heavily than others.”
Additionally, Mandi suggested using technology to conduct brief assessment interviews to capture responses and calculate the appropriate relevancy score, noting that attorney oversight is essential for establishing a defensible process.
“The outcome [from the custodian relevancy ranking] is that you’re going to clearly delineate the most important custodians, and you’re also going to be able to release custodians who do not have any relevant knowledge or information, which will eliminate any downstream collection.”
Determining what types of data sources, how many, and where they’re located can help ensure your team has a handle on what they need to collect. To start, think about two questions. First: Does the data source contain unique, relevant content?
“Although custodian data surveys identify devices and locations, whether the data is unique and relevant to the matter at hand is traditionally not contemplated,” Mandi said. “By performing interviews at this early stage to vet employee responses, the legal team can eliminate redundant and non-relevant data sources from moving forward.”
The second question to ask yourself: What is the burden and effort of each relevant data source?
“Just like the custodian relevancy ranking, you want to construct scoring for each data source. Low effort would be email […] and burdensome data sources would entail things like backup tapes or propriety systems,” Mandi said. “The outcome is that your data sources are now classified based on burden, and non-relevant or duplicative data sources have been excluded.”
Index in place is a mechanism that allows you to understand the density of documents, the timeframe and communication frequency, and which employees may be involved—all before collecting any actual data.
“With index in place, you can gain early insight into the story of the data itself,” Mandi said. “Since you already have a framework around claims and defenses, this can also be used to construct search strategy to locate potentially relevant documents.”
Tools like X1 Distributed Discovery make index in place relatively simple, allowing you to search full text and metadata, sample hit results, and refine and customize your results before you collect. You can place X1 on your custodians’ machines remotely via an email link, and from there run searches as needed.
“Since X1 is a distributed software, it runs on the machine without disrupting the user,” explained John Patzakis, executive chairman and chief legal officer at X1. “You can execute searches […] and, behind the scenes, it’s sending your searches to the machines to tell you how many emails, how many files, how much total space is taken up, within 30-60 seconds.”
Leveraging proportionality to limit and better understand the data you need to collect will immensely help with your collection process, but it’s not a fix-all. You also need the right technology to get the job done.
“Remote collection tools are really stepping up to the plate,” Ben said. “Software providers are responding to the demand for remote options and are improving their platforms to meet the same standards as onsite imaging tools. We’re seeing a tectonic shift in the collection landscape.”
For example, RelativityOne’s tool, Collect, streamlines the process and makes collections easier for everyone on your team.
“It’s not unusual to see 10 to 20 data sources that you have to regularly collect from, and it’s a steep learning curve if you have to purchase and learn a bunch of different tools,” said Barry O’Melia, senior product manager at Relativity. “We built Collect with the idea that you don’t need to learn every tool and endpoint. We want to give you a unified front-end to walk through and collect from different data sources, so you have the power in one place to access all those different sources.”
In addition to Collect, X1 built X1 Distributed Discovery with remote collections top of mind.
“Being built on the X1 search engine is key because it enables us to search across hundreds of machines and return results in minutes, instead of weeks or days,” John said.
With X1, you can push your collected data directly into your Relativity workspace, further streamlining the process and saving you time.
“The integration between the X1 platform and Relativity is truly automated. After the files are harvested from an endpoint device, they’re securely transferred and published to the workspace,” Ben explained. “We’ve used a lot of third-party apps that advertise integration in the past, but this is a truly automated push.”
Even as the world begins to open again, remote collections won’t be going anywhere anytime soon. But, keeping these strategies in mind can ensure that the data you collect is the data you need—no matter where you’re grabbing it from.
Kristy Esparza is a member of the marketing team at Relativity, specializing in content creation.
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