By John Patzakis
The International Legal Technology Association (ILTA) recently published a very informative and comprehensive law firm eDiscovery practice survey, “2021 Litigation and Practice Support Survey.” ILTA received responses from litigation support professionals from 82 different law firms ranging in size from medium to large, on a variety of subjects, including eDiscovery practice trends and software tool usage. While the survey addresses a variety of aspects of legal tech and litigation, the survey reveals a couple of very notable insights regarding ESI collection in the enterprise.
The first important insight reflects that targeted ESI collection is the clear preferred method over forensic collection for litigation support purposes. Fifty-nine percent of respondents preferred “targeted collection (non-forensic)” as their standard methodology, while 13 percent still preferred forensic imaging. Forensic collection is rightfully on the decline as a method of ESI collection, as legal counsel seeks to leverage proportionality concepts that greatly reduce cost, time and risk associated with otherwise inefficient eDiscovery.
However, attaining the benefits of targeted collection requires the ability to operationalize workflows as far upstream in the eDiscovery process as possible. For instance, when you’re engaging in data over-collection, which in turn runs up of a lot of human time and processing costs, the ship has largely sailed before you are able to perform early case assessments and data relevancy analysis, as much of the discovery costs have already been incurred at that point. The case law and the Federal Rules provide that the duty to preserve only applies to potentially relevant information, but unless you have the right operational processes in place, you’re losing out on the ability to attain the benefits of proportionality. That is why we see forensic imaging, the epitome of data over-collection, on a steep decline.
The second notable takeaway was that network file shares and “loose files” were the most common form of collection data sources, even outpacing email. Network file shares are a significant challenge with data volumes, typically 10 to 20 terabytes, but can be much higher. Nearly every company and government agency maintains such large file shares, sometimes hundreds of them, depending on the size of the organization. Large network file shares can be found on premise or in a company’s cloud environment.
Traditional eDiscovery collection methods fail to efficiently address these large file shares, due to significant logistical challenges. The data cannot simply be searched in-place by traditional forensics tools or other crawling methods. Consequently, the data is typically copied in bulk and then migrated to another location for processing, where the data is finally indexed and then searched and culled. This approach does not enable the targeted, proportional collection methods preferred by law firms, as noted above.
To accomplish the goals of both targeted collection and addressing large file shares, index and search in-place technology should be utilized. Indexing and search in-place in this context means that a software-based indexing technology (as opposed to an expensive and cumbersome stand-alone hardware appliance) is deployed directly onto the file server or an adjacent computing resource. This indexing occurs without a bulk data transfer of the data. Once indexed, the searches are performed in a few seconds, with complex Boolean operators, metadata filters and regular expression searches. The searches can be iterated and repeated without limitation, which is critical for large data sets.
These capabilities supporting targeted and proportional collection of loose files, emails, and large network file shares are uniquely provided in the X1 Enterprise Platform.