Category Archives: collection

Relativity and X1 Publish Updated Joint Legal Whitepaper on ESI Collection Best Practices

By John Patzakis

Relativity and X1 have published an updated joint legal whitepaper addressing full-disk imaging as a disfavored collection practice in civil litigation, with Relativity eDiscovery attorney David Horrigan as the lead author. This paper is a substantive update from the original published a year ago, adding discussion of important and relevant new case law published in the past 12 months. The paper notes that “if the preliminary data from the first five months of 2022 are any indication, we may be seeing that the law of proportionality is becoming more settled — and that courts continue to disfavor full-disk imaging.”

The paper delves into all the legal reasons, including detailed analysis of case law, the Federal Rules of Civil Procedure, and the Sedona Principles establishing why forensic collection is not required in civil litigation. The paper primarily focuses on the principles of proportionality in its legal analysis as well as case law issued prior to the 2015 amendment to the Federal Rules of Civil Procedure, which gave greater prominence and clarification of the proportionality rules.

One of the recent updated cases included is Besman v. Stafford, where the appellate court reversed and remanded a trial court’s order of a forensic examination of a law firm computer, holding the trial court erred in failing to take precautions to protect the privileged and confidential information on the device. “Generally, courts are reluctant to compel forensic imaging, largely due to the risk that imaging will improperly expose privileged and confidential material contained on the hard drive,” Judge Anita Laster Mays wrote for the appellate court.

This is an important topic as a key problem in eDiscovery that drives inefficiencies and higher costs is that default collection methods often involve full-disk imaging—a forensic examination of an entire computer—when searching for responsive data. As the whitepaper notes, “it turns out full-disk imaging is not required for most eDiscovery collections. In fact, courts often disfavor the practice.”

A copy of the whitepaper can be found here.

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Filed under Best Practices, Case Law, collection, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, ESI, proportionality, Relativity

Post Pandemic, Corporate eDiscovery Undergoes a Permanent Paradigm Shift

By John Patzakis

While the pandemic disrupted the workplace during its height, it is now becoming clear that a more permanent transformation has taken place. Employees and their electronic information assets are far more geographically dispersed. This is requiring corporate legal departments to rethink how they conduct eDiscovery, as the old model based upon data over-collection is no longer tenable. Instead, corporations are favoring a more targeted approach to ESI collection.

Industry analyst Greg Buckles of the eDiscovery Journal recently provided a good analysis on this topic:

“The sheer volume of raw custodial collections has put pressure on discovery professionals to use an iterative selective collection strategy. That puts the corporate legal team closer to scoping and collection activities than most have been. For too long corporate legal has felt uncomfortable pushing back on overly burdensome or broad discovery requests from opposing or retained counsel. The recent development of proportionality frameworks, guidelines and tools has the potential to empower corporate legal to make defensible cost-risk arguments.”

Buckles further observes that “some of my clients have drastically cut their eDiscovery related expenses through these kinds of initiatives.” He terms this as a “grand enterprise reboot” that “brings (corporate legal) to the table with a fresh perspective.”

Most core eDiscovery costs (outside of attorney review) stem from over-collection of ESI. While direct collection costs can seem inexpensive, law firm Nelson Mullins notes that “over preservation tends to have its own costs relating to storage of large amounts of electronically stored information (ESI) and the resources needed to manage it; leads to increased downstream e-discovery costs associated with collection, processing, and review.”

As outlined by Buckles, proportionality-based eDiscovery is an important principle that all corporate attorneys should be leveraging. Under Federal Rule of Civil Procedure 26(b)(1), parties may discover any non-privileged material that is relevant to any party’s claim or defense and proportional to the needs of the case. However, attorneys representing enterprises are essentially flying blind on this analysis when it matters most. Prior to the custodian data being actually collected, processed and analyzed, attorneys do not have any real visibility into the potentially relevant ESI across an organization. This is especially true in regard to unstructured, distributed data, which is invariably the majority of ESI that is ultimately collected in a given matter.

If accurate pre-collection data insight were available to counsel, that game-changing factor would enable counsel to set reasonable discovery limits and ultimately process, host, review and produce much less ESI. Counsel can further use pre-collection proportionality analysis to gather key information, develop a litigation budget, and better manage litigation deadlines. Such insights can also foster cooperation by informing the parties early in the process about where relevant ESI is located, and what keywords and other search parameters can identify and pinpoint relevant ESI.

A solution to these challenges is the utilization of index and search in-place technology. Indexing and search in-place in this context means that a software-based indexing technology is deployed directly onto file servers, laptops or even in the cloud to address cloud-based data sources. 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.

But it is important that the technology employed truly enables index-in-place, with the indexes deployed directly onto the laptops, file shares or cloud servers where the data exists. Some providers will market their tools as such, but the indexing and searching actually takes place in their platform at a central location. Data must first be copied and collected off of laptops and file servers and migrated over the network to get the indexing engines. This does not scale for eDiscovery. For information about X1’s index-in-place technology, X1 Enterprise Platform, please visit us here.

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Filed under Best Practices, collection, compliance, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, ESI, Preservation & Collection, proportionality

Traditional eDiscovery Processing is Now Obsolete

By John Patzakis

eDiscovery can be a very expensive process and time consuming when traditional methods are employed. With legacy processes, from the time ESI collection starts, it often takes weeks for the data to finally end up in review. Time is money, and this dramatically increases costs as well as risk.

ESI processing is a dedicated and often expensive step in the EDRM workflow. The majority of ESI processing consists of data culling and filtering, deduplication, text extraction, metadata preservation, and then staging the data for upload into a review platform, often in the form of a load (DAT) file.  Using ESI processing methods that involve on-premise hardware appliances that are not integrated with the collection process and do not integrate with review platforms like Relativity significantly increase cost and time delays. This means practitioners have to spend the often several weeks that are required by other cumbersome solutions through manual collections and multiple hand-offs.

However, the latest in collection technologies will now combine targeted collection with these processing steps that are performed “on the fly” and in the background so that the data is automatically collected, processed and uploaded into a review platform such as Relativity in one fell swoop.

The graphic below is an illustration contrasting the challenges associated with traditional eDiscovery processes, with the far more efficient new paradigm. When you engage in manual collection, and then manual on-premise hardware-based processing, and finally manual upload to review, you are extending the process by often weeks, you are dramatically increasing cost and risk with many manual data handoffs.

Providing a contrast to traditional methods, a recent Relativity webinar featured the integration of the X1 Distributed Discovery platform with its RelativityOne Collect solution. A live demonstration performed by Relativity Product Manager Greg Evans highlighted in real time how the integration dramatically improves the enterprise eDiscovery process by enabling a targeted and efficient search and collection process, with full and integrated ESI processing. Within minutes, data collected from endpoints with X1 is populated straight into a Relativity workspace, fully processed and ready for review, without any human interaction once the collection is started.

So in terms of the big picture, this X1/Relativity integration not only streamlines enterprise ESI collection, but it relegates ESI processing to a completely automated background function as an afterthought. That’s what disruption looks like.

A recording of the X1/Relativity integration webinar can be accessed here.

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Filed under Best Practices, collection, eDiscovery, Enterprise eDiscovery, ESI, Uncategorized

Relativity Highlights Its X1 Integration for ESI Collection

By John Patzakis

Recently, Relativity hosted a live webinar featuring the integration of the X1 Distributed Discovery platform with its RelativityOne Collect solution. This X1/Relativity integration enables game-changing efficiencies in the eDiscovery process by accelerating speed to review, and providing an end-to-end process from identification through production. As stated by Relativity Chief Product Officer Chris Brown: “Our exciting new partnership with X1 highlights our continued commitment to providing a streamlined user experience from collection to production…RelativityOne users will be able to combine X1’s innovative endpoint technology with the performance of our SaaS platform, eliminating the cumbersome process of manual data hand-offs and allowing them to get to the pertinent data in their case – faster.”

The webinar featured a live demonstration showing X1 quickly collecting data across multiple custodians and seamlessly importing that data into RelativityOne in minutes. Relativity Collect currently supports Office 365 and Slack sources, and Relativity Product Manager Greg Evans noted that “this X1 integration will now enable Relativity Collect to also reach emails and files on laptops, servers,” and other network sources. The webinar outlined how the Relativity/X1 integration streamlines eDiscovery processes by collapsing the many hand-offs built into current EDRM workflows to provide greater speed and defensibility. Evans also said that new normal of web-enabled collections of remote custodians and data sources was a major driver for the Relativity/X1 alliance, as “remote collections now represent 90 percent of all eDiscovery collections happening right now.”

Adam Rogers, of Complete Discovery Source, a customer of both X1 and RelativityOne, highlighted a recent major multi-national litigation where the X1 and Relativity integration was critical to the success of the project. Adam noted that the effort would have taken about 30 days utilizing traditional methods, “but with this X1 and Relativity integration, we cut it down to 3 days, because with X1, we were able to index everything in-place, search, analyze and categorize that data right away, and then release that data to Relativity for review.”

The live demonstration performed by Greg Evans highlighted in real time how the integration improves the enterprise eDiscovery collection and ECA process by enabling a targeted and efficient search and collection process, with immediate pre-collection visibility into custodial data. X1 Distributed Discovery enhances the eDiscovery workflow with integrated culling and deduplication, thereby eliminating the need for expensive and cumbersome electronically stored information (ESI) processing tools. That way, the ESI can be populated straight into Relativity from an X1 collection.

The X1 and Relativity integration addresses several pain points in the existing eDiscovery process. For one, there is currently an inability to quickly and remotely search across and access distributed unstructured data in-place, meaning eDiscovery teams have to spend weeks or even months to collect data as required by other cumbersome solutions. Additionally, using ESI processing methods that involve appliances that are not integrated with the collection will significantly increase cost and time delays.

So in terms of the big picture, with this integration providing a complete platform for efficient data search, eDiscovery and review across the enterprise, organizations will save a lot of time, save a lot of money, and be able to make faster and better decisions. When you accelerate the speed to review and eliminate over-collection, you are going to have much better early insight into your data and increase efficiencies on many levels.

A recording of the X1/Relativity integration webinar can be accessed here.

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Filed under Best Practices, collection, ECA, eDiscovery, Enterprise eDiscovery, ESI

Intelligent ESI Collection Integrated with Relativity Can Cut eDiscovery Costs by 90 Percent

By John Patzakis

One of the biggest drivers of excessive eDiscovery costs is ESI over-collection. This in turn leads to a larger amount of data entering the processing and initial review funnel. These traditional inefficient efforts are manual with numerous hand offs and a high degree of project management and consulting hours to oversee the disjointed workflow. A recent analysis by Compliance CEO Marc Zamsky, illustrated in the chart below, established that cost for collection, processing and first month hosting under a traditional preservation process can cost upwards of $12,000 per custodian:

Properly targeted preservation initiatives are permitted by the courts and can be enabled by next generation software that is able to quickly and effectively access and search these data sources in place and throughout the enterprise. The value of targeted preservation is recognized in the Committee Notes to the recent FRCP amendments, which urge the parties to reach agreement on the preservation of data and the key words, date ranges and other metadata to identify responsive materials. (Citing the Manual for Complex Litigation (MCL) (4th) §40.25(2)). And In re Genetically Modified Rice Litigation, the court noted that “[p]reservation efforts can become unduly burdensome and unreasonably costly unless those efforts are targeted to those documents reasonably likely to be relevant or lead to the discovery of relevant evidence.”

Recently we hosted a webinar with Compliance highlighting the very compelling integration of our X1 Distributed Discovery platform with Relativity. This X1/Relativity integration enables game-changing efficiencies in the eDiscovery process by accelerating speed to review, and providing an end-to-end process from identification through production. As recently stated by Relativity Chief Product Officer Chris Brown: “Our exciting new partnership with X1 highlights our continued commitment to providing a streamlined user experience from collection to production…RelativityOne users will be able to combine X1’s innovative endpoint technology with the performance of our SaaS platform, eliminating the cumbersome process of manual data hand-offs and allowing them to get to the pertinent data in their case – faster.”

The live demonstration highlighted in real time how the integration improves the enterprise eDiscovery collection and ECA process by enabling a targeted and efficient search and collection process, with immediate pre-collection visibility into custodian data. X1 Distributed Discovery significantly streamlines the eDiscovery workflow with integrated culling and deduplication, thereby eliminating the need for expensive and cumbersome electronically stored information (ESI) processing tools. That way, the ESI can be populated straight into Relativity from an X1 collection without multiple hand offs, extensive project management and inefficient data processing.

Zamsky commented that the “ability to collect directly from custodian laptops and desktops into a RelativityOne workspace without impacting custodians is a game-changer,” which will “reduce collection times from weeks to hours so that attorneys can quickly begin reviewing and analyzing ESI in RelativityOne.” In fact, Zamsky demonstrated just that by presenting a second chart showing how this streamlined approach, based upon a detailed ROI analysis, reduces eDiscovery costs by over 90 percent:

So in terms of the big picture, with this integration providing a complete platform for efficient data search, eDiscovery, and review across the enterprise, organizations will save a lot of time, save a lot of money, and be able to make faster and better decisions. When you accelerate the speed to review and eliminate over-collection and inefficient processing, you are going to have much better early insight into your data and increase efficiencies on many levels.

A recording of the X1/Relativity integration webinar can be accessed here.

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Filed under Best Practices, collection, eDiscovery, ESI, Uncategorized