Category Archives: law firm

ILTA eDiscovery Survey Highlights Targeted ESI Collection as the Preferred Methodology

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.

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Filed under Best Practices, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, ESI, law firm, Social Media Investigations

Pre-Collection Keyword Searches: Where Angels May Fear to Tread but Not Attorneys with the Right eDiscovery Software

By John Patzakis

One of the key cases involving the principles of proportionality under Federal Rule of Civil Procedure 26(b)(1), is McMaster v. Kohl’s Dep’t Stores, Inc., (E.D. Mich. July 24, (2020).  McMaster generally supports the application of a process that effectively applies proportionality on an operational basis through an iterative exercise to identify relevant custodians, their data sources, applicable date ranges, file types and agreed upon keywords. Such a targeted, automated and proportional collection process can be applied to collect only the data that is responsive to this specific criteria.

However, the main ESI dispute in McMaster was that the attorneys could not agree on a list of search terms and sought a ruling of the courts to decide on which search terms should be used. As noted by the Magistrate Judge in McMaster, “Here is another case in which the Court is called upon to decide whose competing list of search terms is better suited for the search of large amounts of electronically stored information”, citing United States v. O’Keefe, 537 F. Supp. 2d 14, 23–24 (D.D.C. 2008), which stated: “for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.”  Judge Whalen stated: “I, for one, have no interest in going where angels fear to tread. Therefore, if the parties cannot agree on appropriately limited search terms, they will share the cost of retaining an expert to assist them. If they still cannot agree, then Plaintiff may renew his motion regarding the search terms and will provide the Court with an expert report substantiating his position.”

The parties had been engaged in a Rule 26(f) exercise, which requires the parties’ counsel to “meet and confer” in advance of the pre-trial scheduling conference on key discovery matters, including the preservation, disclosure and exchange of potentially relevant electronically stored information (ESI). A very good authority on the Rule 26(f) eDiscovery conference is the “Suggested Protocol for Discovery of Electronically Stored Information,” provided by then Magistrate Judge Paul W. Grimm and his joint bar-court committee. Under Section 8 of the Model Protocol, the topics to be discussed at the Rule 26(f) conference include: “Search methodologies for retrieving or reviewing ESI such as identification of the systems to be searched;” “the use of key word searches, with an agreement on the words or terms to be searched;” “limitations on the time frame of ESI to be searched;” and “limitations on the fields or document types to be searched.”

Kelly Twigger, one of the best and brightest eDiscovery attorneys in the field in my opinion, commented in a recent webinar that eDiscovery collection capabilities that enable an iterative search and collection process in place would allow her to make more much informed decisions on keyword strategies. Twigger noted that software that provides keyword hits and other analytics on custodian laptops, fileservers and other network and cloud sources prior to collection, would enable her “to be able to define and agree upon the right search terms” with the requesting party. Twigger pointed out that while attorneys and judges rightfully avoid “where angels fear to tread” — agreeing on keywords without any visibility into the data — that concern can be alleviated when the right processes and technology are used.  

And such technology is important, because optimizing the process of developing keyword searches is no easy task. The typical approach of blindly brainstorming a list of terms that may be relevant and running the search on a dataset to be reviewed results in a wide range of inefficiencies. Negotiations over proper usage of search terms may become onerous and contentious. Judges are often tasked with making determinations regarding the aptness of the methodology, and, as we see in McMaster, are very reluctant to do so. Thus, the use of outside expertise and leveraging indexing in place technology is beneficial in building an effective and comprehensive pre-collection search term strategy and enabling you to tread where angels fear to.

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Filed under Best Practices, Case Law, eDiscovery, Enterprise eDiscovery, ESI, law firm, Preservation & Collection

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

By John Patzakis

Relativity and X1 have published a joint legal whitepaper on the topic of full-disk imaging as a disfavored collection practice in civil litigation, with Relativity eDiscovery attorney David Horrigan as the lead author. 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.


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 Authentication, Best Practices, Case Law, eDiscovery, ESI, law firm, Preservation & Collection, proportionality