Early in my tenure as co-founder at Guidance Software (EnCase), we commercialized full-disk imaging circa 2001 with EnCase Forensic edition, which was the first Windows-based computer forensics tool. EnCase Forensic enabled broader market adaption of computer forensic drive imaging, but the tool was originally designed for law enforcement to perform criminal computer evidence seizures. We were thinking more CSI than ESI.
However, soon a funny thing happened. For a two to three year period in the mid-2000s, a majority of standalone forensic software purchases came from eDiscovery service providers. Law enforcement represented a sizable minority during this “surge period” of commercial sector purchases, but we eventually realized that the eDiscovery services community was in the process of standardizing on full disk imaging as their default collection practice.
I have a few theories on why this trend occurred, but suffice to say that one of the many reasons that full-disk imaging is burdensome is 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.
However, many eDiscovery practitioners continue to collect or direct the collection of Electronically Stored Information (ESI) through full disk forensic “images” of targeted media as a routine practice. 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.
The Duty to Preserve Only Extends to Relevant Information
It is established law that the duty to preserve evidence, including ESI, extends only to relevant information. 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”).
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.” 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).
Similarly, in Zubulake v. UBS Warburg LLC, 2004 WL 1620866 at *8 (S.D.N.Y. July 20, 2004) (“Zubulake V”), Judge Scheindlin suggested that eDiscovery could be more manageable for producing parties but still defensible by taking advantage of the development of technology like X1 Distributed Discovery, which would be capable of conducting distributed keyword searches. She anticipated that, due to the expansion of eDiscovery in coming years, counsel “must be more creative” because:
[It may not always] be feasible for counsel to speak with every key player, given the size of a company or the scope of the lawsuit, counsel must be more creative. It may be possible to run a system-wide keyword search; counsel could then preserve a copy of each “hit.” [FN75] Although this sounds burdensome, it need not be. Counsel does not have to review these documents, only see that they are retained. For example, counsel could create a broad list of search terms, run a search for a limited time frame, and then segregate responsive documents. . .
FN75. It might be advisable to solicit a list of search terms from the opposing party for this purpose, so that it could not later complain about which terms were used.
The recommended collection and preservation approach described by Judge Scheindlin is a far cry from obtaining full-disk images of the hard drives of each potential custodian, and in fact maps directly to the capabilities of X1 Distributed Discovery.
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. Historically, eDiscovery collection efforts not involving full disk imaging would often result in the loss or alternation of metadata. More advanced enterprise class technology, such as X1 Distributed Discovery, can accomplish system-wide searches 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. As with the Zubulake V decision, which advocates employing technology to perform “system-wide keyword searches”, courts recognize that advanced computer software can be deployed to limit the scope of computer searches and thus support reasonable discovery efforts.
With X1 Distributed Discovery (X1DD), parties can perform targeted search collection of the ESI of 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.
The authorities cited above establish that effective technology can enable corporate counsel to establish a highly defensible process that at the same time minimizes cost. Routine full-disk imaging, over collection, and high eDiscovery costs are symptoms of an absence of a systemized process. By establishing a scalable and system-wide eDiscovery process based upon the latest technology, large organizations can save millions while improving compliance.
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