Hot Topics for Trial Lawyers
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Data Collection Pitfalls
Posted 5/12/08 David Chaumette, Shook, Hardy & Bacon L.L.P.Computer users destroy and alter electronic data every day, and often without knowledge. Simply turning on a computer can overwrite documents such as those in “slack” and “temporary” files. And just clicking on a file can change the documents metadata (data about the data) such as the “last-accessed” date.
So how can you avoid spoliation issues when data may be relevant to a lawsuit? Best practices dictate that a party immediately make a copy of relevant data using mirror-imaging technology and halt electronic document-destruction processes such as the recycling of backup tapes. Mirror imaging creates a copy of every sector in the computers hard drive. This is very different from simply copying every file, which may result in alterations such as those listed above. While many internal IT departments are familiar with mirror imaging technology, e-discovery experts can also assist you in securing this data and explaining what actions could potentially cause spoliation. An added benefit of working with an outside expert to perform mirror imaging services is that you have independence in the process, lessening the chance of any questions of impropriety.
Those of us who breathe this stuff every day know that mistakes made at the start can be very difficult (read: expensive) to fix later. The following pointers are adapted from a 2005 Kroll newsletter. Each project (and its challenges) will be different, but this list is a solid beginning of concerns practitioners might face and pitfalls they should avoid:
1. Failing to Have a Data Collection Plan. Having an initial data collection “plan of attack” is vital in every electronic discovery situation. It is equally important to document that plan so that everyone is on the same page and that you do not have to recreate your efforts at a later date (when you have no idea what was actually done).
2. Failing to Prioritize the Data. Clearly defining the collection scope and priority of key players will avoid creating unnecessary delays and increased costs down the road.
3. Neglecting to Conduct Thorough Interviews. Counsel must make it a priority to thoroughly interview the IT team regarding the clientˇ¦s IT systems. This is something that you should document so that you can confirm the steps that you have taken.
4. Ignoring Key Data Locations & Important File Types. Often, it can be difficult to ascertain where electronic evidence is held. This issue was part of Qualcomm’s problem as the court in that case held that Qualcomm did not produce a significant number of documents.
5. Conducting Do-It-Yourself Data Collection. Many software products allow a client to collect data themselves. This is unfortunately the fastest way to create significant problems for the client several months later, when the problems can no longer be fixed. More than ever before, collection methods are at the forefront of discovery, as pointed out in a recent case, holding that attorneys who relied on the clientˇ¦s search methods were negligent. Finley v. Hartford Life and Acc. Ins. Co., 2008 WL 509084 (N.D. Cal. Feb. 22, 2008).
6. Failing to Mirror Image v. Imaging Excessively. Remember that this area of the law is new and, to some extent, untested. Unfortunately, the person grading performance does so several years after the acts were completed, but with proper documentation, clients can achieve good results.
7. Limiting Names. When collecting data, consider alternative names, including maiden names, initials, nicknames, e-mail addresses, and everything else. This can be particularly tricky given the informality of e-mails.
8. Assuming IT Can Shoulder the Burden Alone. Simply, IT does not always understand how to best handle data subject to legal discovery. It is also often outsourced and already stretched as to resources. This approach also makes your IT department primary deposition targets.
9. Failing to Maintain Proper Chain of Custody. Proper documentation includes indicating where the media has been, whose possession it has been in, and the reason for that possession. If you do this wrong, you might not be able to fix it without re-doing the entire production.
Even with full consideration of these issues, problems may still arise. Therefore, it is equally important to document every step so that when the time comes, you can mount a proper defense to any claims against you. Unfortunately, these new constraints and challenges are not easy and require attention from the start.