The Sedona Working Group on Electronic Document Retention & Production (WG1), recently published for public comment a Commentary on Defense of Process: Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process (“The Commentary”). According to the authors, “the Commentary seeks to address what should be done to prepare for—or better yet, avoid—challenges to process, and how courts should address those disputes that arise.” Public comments are invited through November 15, 2016.
The Commentary provides excellent insight and guidance on many aspects of eDiscovery, with an extensive discussion on defensible ESI collection and culling that is particularly instructive for larger enterprises. This is important, as ESI is growing exponentially and even with the advent of predictive coding, the costs associated with ESI over-collection are often astronomical. The only way to reduce that pain to its minimum is to employ a smart but defensible process to control the volumes of data that enter the discovery pipeline. So the holy grail for large enterprises is a truly scalable capability that targets only potentially relevant ESI for collection. The Commentary provides general guidance on the reasonableness and defensibility of such a capability.
For instance, Principal 7 of the Commentary provides that “A reasonable e-discovery process may use search terms and other culling methods to remove ESI that is duplicative, cumulative, or not reasonably likely to contain information within the scope of discovery.” Comment 7.c notes in part that “search terms are a defensible technique for limiting the number of documents for review and production, provided that care is taken in their development and use.” Additionally, an iterative search process is recommended: “In an iterative process, information in documents returned by the first list of search terms can help attorneys to further refine existing terms or to identify new terms that should be added in subsequent rounds. This process can continue until a reasonable result is achieved.” It is also recommended that the search process be subject to validation and be properly documented.
Also instructive in The Commentary is a hypothetical “illustration” that reflects a smart and effective approach to an enterprise level ESI collection and preservation process:
“Illustration: The responding party has determined that the most efficient way of preserving discoverable emails is to collect the emails that “hit” on a broad set of search terms, rather than to modify the company’s default 30-day retention policy or rely on individual custodians to manually preserve potentially discoverable documents. Since a later determination that the responding party’s search terms were too narrow could come too late to prevent the loss of discoverable information, or cause a significant delay or expense from efforts to restore lost emails from back-up media, it may be prudent for the responding party to notify or seek agreement from the requesting party about the planned preservation approach and the specific search criteria to be applied.”
While the above-cited guidelines are very instructive for a well-designed, cost-effective and defensible process, such a goal is only attainable with the right enterprise technology. With X1 Distributed Discovery (X1DD), parties can perform targeted search and collection of the ESI of hundreds of endpoints over the internal network without disrupting operations. The search results are returned in minutes, not weeks, and thus can be highly granular and iterative, based upon multiple keywords, date ranges, file types, or other parameters. This approach typically reduces the eDiscovery collection and processing costs by at least one order of magnitude (90%), thereby bringing much needed feasibility to enterprise-wide eDiscovery collection that can save organizations millions while improving compliance.
And in line with concepts outlined in The Commentary, X1DD provides a repeatable, verifiable and documented process for the requisite defensibility. For a demonstration or briefing on X1 Distributed Discovery, please contact us.