Category Archives: eDiscovery

Full Disk Imaging Not Required for eDiscovery Collections

In Fact, Courts and Legal Commentators Disfavor the Practice

By John Patzakis[1]

The collection and preservation of Electronically Stored Information (ESI) in the enterprise remains a significant and costly pain point for organizations. Leading industry research firm Gartner notes that eDiscovery collection and preservation processes “can be intrusive, time consuming and costly.”[2]  And recent court decisions imposing sanctions on corporate litigants who failed to meet their ESI preservation obligations are symptomatic of these pain points.[3]

A key issue regarding collection is that many in the eDiscovery services community standardized on full disk imaging as their default collection practice.  This is problematic for several reasons. For one, full-disk imaging is burdensome because the process often involves service providers traveling out to the individual custodians, which is very disruptive to employees, not to mention time consuming. Additionally, as eDiscovery processing and hosting fees are usually calculated on a per-gigabyte basis, costs are increased exponentially. In a word, this is overkill, with much more effective and efficient options now available.

Full disk images capture every bit and byte on a hard drive, including system and application files, unallocated space and a host of irrelevant user-created data. While full disk images may be warranted in some limited situations, the expense and burden associated with the practice can be quite extensive, particularly in matters that involve multiple custodians.

It is established law that the duty to preserve evidence, including ESI, extends only to relevant information[4]  The vast majority of ESI on a full disk image will typically constitute irrelevant information. As stated by one court, “imaging a hard drive results in the production of massive amounts of irrelevant, and perhaps privileged, information.”[5] The highly influential Sedona Conference notes: “Civil litigation should not be approached as if information systems were crime scenes that justify forensic investigation at every opportunity to identify and preserve every detail.”

And that: “Forensic data collection requires intrusive access to desktop, server, laptop, or other hard drives or media storage devices.”  While noting the practice is acceptable in some limited circumstances, “making a forensic copy of computers is only the first step of an expensive, complex, and difficult process of data analysis . . . it should not be required unless circumstances specifically warrant the additional cost and burden and there is no less burdensome option available.”[6]

This disfavoring of forensic imaging is also reflected in the increased emphasis of proportionality under recent amendment to Federal Rule of Civil Procedure 26(b)(1). The over-arching theme from case law and the Federal Rules is that ESI preservation efforts should be reasonable, proportionate, and targeted to only relevant information, as opposed to being overly broad and unduly burdensome.

Courts do require that ESI be collected in a forensically sound manner, which does not mean a full forensic disk image is required, but generally does entail that metadata is not altered and a documented chain of custody is maintained. More advanced enterprise class technology can accomplish remote searches across multitudes of custodians that are narrowly tailored to collect only potentially relevant information while preserving metadata at the same time. This process is better, faster and dramatically less expensive than manual disk imaging.

In fact, The Sedona principles do outline such an alternative to forensic disk imaging: “Automated or computer-assisted collection involves using computerized processes to collect ESI meeting certain criteria, such as search terms, file and message dates, or folder locations. Automated collection can be integrated with an overall electronic data archiving or retention system, or it can be implemented using technology specifically designated to retrieve information on a case-by-case basis.”

This language maps directly to the capabilities of X1 Distributed Discovery (X1DD), which enables parties to perform targeted search and collection of the ESI of up to thousands 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%). This method is sound from an evidentiary standpoint as the collected data is preserved in its native file format with its metadata intact. X1DD features a solid chain of custody and robust logging, tracking and reporting.

And in line with the concepts outlined in the revised Sedona Commentary, X1DD provides a repeatable, verifiable and documented process for the requisite defensibility. 


NOTES:

[1]John Patzakis is the Chief Legal Officer of X1.

[2] “Market Guide for E-Discovery Solutions” Gartner, June 30, 2016

[3] (Matthew Enter., Inc. v. Chrysler Grp. LLC, 2016 WL 2957133 (N.D. Cal. May 23, 2016). (Imposing severe evidentiary including allowing the defense to use the fact of ESI spoliation to rebut testimony from the plaintiff’s witnesses and payment of attorney’s fees incurred by the defendant) Internmatch v. Nxtbigthing, LLC, 2016 WL 491483 (N.D. Cal. Feb. 8, 2016), a U.S. District Court imposed similar sanctions based upon the corporate defendant’s suspect ESI preservation efforts.

[4] Hynix Semiconductor Inc. v. Rambus Inc., 2006 WL 565893 (N.D.Cal. Jan. 5, 2006) at *27. (“The duty to preserve evidence, once it attaches, does not extend beyond evidence that is relevant and material to the claims at issue in the litigation.”)  As noted by the Zubulake court, “Clearly [there is no duty to] preserve every shred of paper, every e-mail or electronic document, and every backup tape…Such a rule would cripple large corporations.”  Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2004) (“Zubulake IV”).

[5] Deipenhorst v. City of Battle Creek, 2006 WL 1851243 (W.D.Mich. June 30, 2006) at *3.  In noting that the “imaging of computer hard drives is an expensive process, and adds to the burden of litigation for both parties,” the Deipenhorst court declined to require the production of  full disk images absent a strong showing of good cause. See also, Fasteners for Retail, Inc. v. DeJohn et al., No 1000333 (Ct. App.Ohio April 24, 2014).

[6] The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1 (2018).

Leave a comment

Filed under Authentication, Best Practices, ECA, eDiscovery, ESI, Preservation & Collection

Moving Beyond Litigation Support

By Sonam Sharma, Senior Manager, X1
(Originally published on ILTAnet.org, February 19, 2021)

The age-old adage of change being the only constant has never been truer than in today’s times. With pandemic induced disruptions fast-tracking an already burgeoning impact of technology in day-to-day proceedings of your business and having a likewise impact in the lives of our clients, the ability to manage and react to this change must make all the difference between the longevity of your business and ensuring that you stay ahead of the market.

Over the last decade, a lot of energy has been spent towards understanding the pain points of the lawyers while constantly examining ways to reinvent to stay ahead of the competitors of varying scale, capabilities, and customer base. Change is inevitable but the transformation is a conscious choice. To navigate through a highly fluctuating market, we are witnessing law firms embracing change and revisiting their litigation support services and strategies to develop a unified and client-centric approach for their organizations. A focus on operational efficiency is becoming more about survival and excellence rather than a good-to-have organization priority.

So, what is this change that we are talking about?

The Legal industry is a fast pace world. Clients are rapidly outgrowing conventional models, largely as a result of how they are using technology in their everyday lives. As the expectations of the clients are ever-evolving, legal professionals need to find ways of delivering more seamless and client-centered experiences.

Client-facing services roles such as litigation support, legal assistants, and paralegals are the first points of contact for the commencement of legal work. These professionals play an important role in ensuring case proceedings go as smoothly as possible. However, due to the lack of synergies and functional silos between these groups the operational model can become obsolete/misaligned. “Over time, to maintain the efficiency of teams, it is important to focus on communications and the improvement of processes and procedures,” said Ardian Triantoro, Practice Support Manager, Schulte Roth & Zabel LLP.

To mitigate risks arising from process inefficiencies and to overcome organizational barriers, law firms need to bolster their capabilities by combining teams dealing with legal operations (such as clerks, paralegals, attorneys, and technical support).  and develop communication strategies between them. The goal is to streamline the legal operations workflow to provide a connected experience to the client.

There’s no better time to start the transformation than now!

The more progressive law firms are methodically building and systematically delivering work in-house. Leveraging a base of existing skills, experience, and vendor relationships, organizations have merged their Litigation Technology Support and operational support teams into the Practice Support department to deliver value to customers.

Leading law firms such as Kirkland & Ellis, Latham & Watkins, Baker & McKenzie, Schulte Roth & Zabel, LLP have implemented new ways to approach critical back-office operational functions. “For the law firms, it is not just about implementing the technology but to shift the focus from commoditized services to high-value expertise to recalibrate a more predictable pricing model that generates a cost-effective outcome of the case,” said Jared Michael Coseglia, Founder & CEO of award-winning legal staffing firm TRU Staffing, Inc.

So where can you start?

To prepare for the future, you should begin with a focus on the following areas:

  • Process: Strategize the ebbs and flows! Develop a communication map to help attorneys and staff members better understand the firm’s operating functions and how it fits together. Design effective processes that drive transparency and have a clear description of tasks and outcomes.
  • People: A starting point for assessing the firm’s capabilities is to determine skills, competencies, the talent available and create a capability map. Align skills with the evolving business needs and identify partnership opportunities with a focus on enabling attorneys to focus on long-term strategic decision-making; and
  • Technology: Understand the business needs and align the technology with the law firm organizational framework so that it is supporting the firm’s overall business objectives. It is about using technology to improve the old ways of working.

The more things change, law firms will see increased benefits from…

  • Seamless Client Service: Today, clients expect effortless experience from start to finish. It is critical to serving as a team member to the clients. By streamlining the processes internally, the practice support department acts as an all-in-one suite that law firms can leverage to build a repeatable and defensible process for optimal service delivery.
  • Efficiency Across Legal Ecosystem: Litigation professionals are masters in their field and have worked with a multitude of attorneys on countless cases over time. By utilizing in-house expertise, law firms can establish robust business practices to allow for quick and effective decision-making.
  • Reduced Costs: Staying on top of technology and constantly building expertise enables law firms to design custom-tailored solutions designed for cost efficiency and operational excellence.

Key Takeaway:  The problem is that this is easier said than done, but the actual mantra is not perfection; it is an iterative progression!

Leave a comment

Filed under Best Practices, eDiscovery, Information Management, law firm, Uncategorized

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.

Leave a comment

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.

Leave a comment

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