This post addresses steps legal teams should take and missteps to avoid upon receiving evidence collected by clients and production data sets from opposing counsel.
There have been multiple posts published around the best ways to identify, collect, analyze, review and produce data. This post will not revisit those discussions, but will address the proper course of action one should take on the receiving end of improperly collected data and how to handle produced data not in a readily usable format.
Challenges Legal Teams Face with Electronic Datasets in Discovery
There are two main categories of electronic data sets legal teams receive during discovery, each posing their own challenges regardless of the method of collection used; evidence collected from their client and production data sets from opposing counsel or third parties involved.
1. Receiving Evidence Collected by the Client
Initially, many of the issues stem from clients who are not adequately versed in defensible collection protocols, yet still “self-collect.”
Common challenges legal teams face:
- The client used an email application/program, such as Microsoft Outlook to review emails prior to sending to them.
- Relevant emails and other work product were identified by the client’s staff and “copied” to a media format, or emailed to them as attachments.
- The data is in an unknown format or was collected from a system difficult to work with.
- There has been a “data dump” of hard drives, tablets, cell phones, etc.
Learn more about what counsel can do to ensure proper preservation of evidence.
2. Receiving Opposing Party (and Third Party) Productions
Opposing counsel will not go out of their way to make your job easier by checking for relevancy before sending their production. In the beginning stages, time spent on negotiating production specifications, such as format for delivery, is time well spent. Unfortunately, this step is often overlooked, resulting in extra time and costs spent on navigating through an unorganized, incomprehensible deluge of data.
Common challenges legal teams face:
- Data is in PDF format without text overlay
- Data is in single-page TIFF format
- Data arrives without reference to document or family relationships; this is especially challenging for email and attachment understanding.
- Metadata fields, such as dates, authors, recipients, custodian, etc. are missing
- Load files are missing, and/or there is no means of loading to a review platform
- All data is in native format and reference information is missing
Dos and Don’ts of Properly Handling Received Data during Discovery
Whether reviewing for privilege and relevancy or combing through produced data, if you have reason to believe this data was collected improperly, there are steps you should take and missteps to avoid. All decisions will have an impact down the road, so take the time to think through the situation and assess the state of data to prevent the occurrence of issues and unnecessary costs later in the discovery process. Bringing in a third-party expert to ensure the integrity of the metadata is not (further) compromised is advised.
What You Should NOT Do
- DO NOT accept copies of evidence sent as an attachment in email. Try to obtain evidentiary materials on a secure/encrypted hard drive or via secure FTP transfer.
- DO NOT attempt to access the data on your network; i.e. do not plug the drive in, open the attachments, or copy the data to a network location and open a PST in your Outlook account. Yes, this is a common and instinctive approach, but it has been known to cause various problems for legal teams, including spoliation, viruses, consumption of large volumes of storage on your local or network drives, security issues, and the list goes on.
- DO NOT attempt to print or convert everything to PDF format. Look at the table below to see what you would get—and then have to handle—if you printed out 1GB of common file types:
- DO NOT assume the production data is in readily usable format that allows you to easily view the information or load into a review platform.
- DO NOT assume the data set received includes all relevant information requested.
- DO NOT begin working with the data without capturing your original work product first. You may need to access and use this information in the future.
What You Should Do
- DO ensure whoever is going to handle the data makes a back-up copy of the dataset for safe keeping.
- DO record all information regarding the data’s transferring party, including; date of receipt, who it came from, information on the media label, etc.
- DO discuss the methods of identification and collection with those who collected the data.
- DO an initial assessment of the production data to see what you have?
- DO communicate with producing parties, ideally in advance of receipt, to outline how to deliver the production, or after to understand the production format.
- DO utilize available methods for applying analytics to opposing productions. This will not only save you time and money spent on review, but it will increase your chances of finding the important documents in the production quickly.
- IMMEDIATELY load the data into a review tool. If the current state of the data set poses some (or many) of the challenges mentioned above, consult a data management expert, like D4. D4’s consultants will assist in preparing the data for review and processing, while ensuring the integrity of the metadata remains intact and maintaining a bullet-proof chain of custody.
The most important take away from this discussion is you need to proceed with caution when a dataset appears on your desk with little, or no, notice. Copying everything to a network drive or printing it to a searchable PDF format is an ill-advised practice, which unfortunately, happens daily. While there is a thought that it is the easiest and cheapest way to handle small volumes of evidence, these methods have and will continue to cause problems as you move forward. Applications designed to manage evidence are the best way to go.
Are you anticipating a large production from opposing counsel? Call a data management consultant for assistance. At Special Counsel, we consult and assist legal teams daily with combing through data dumps from their adversaries and the management of improperly collected ESI.