Author: Ben Goodland, Head of Solutions
One of the most frequent questions I get asked by clients is about data collection and what is the best approach to collecting data for their matter(s). This is a wide question and there are many different answers for many different scenarios. This blog will mainly concentrate on data collection for litigation/regulatory notices (non forensic collections) and some of the common pitfalls encountered, the idea behind this blog is to give lawyers new to data collection, or those that need a refresher, about some of the key aspects of the process and things to look out for.
What do you want to collect?
It may be obvious but you want to identify and collect evidence relating to the case you are working on, which means you may not need everything on the client’s server, similarly, you may not need every custodians complete mailbox from the beginning of their employment.
How do you target the correct data for collection?
Again it may be obvious, but on so many occasions this does not happen. Speak to people involved, not just the main client contact, but the actual people who worked on the case/project/matter, this is the best way to identify where the relevant data is/was located. Ask questions such as:
- Where did you save your data?
- Did you have a matter share drive?
- Did you save your data to a document management system (DMS)?
- Did you save your data to your local C drive?
- Did you use any external drives, USB External hard drives etc. If so where are these now?
- Did you only use your company email address for document relating to this case?
- Did you have a matter folder in your email inbox where you stored all matter related emails?
- Who were the key people you contacted about this project?
Only by identifying the correct people and asking the correct questions early in the process can you start to formulate a solid and defensible data collection plan.
One strategy I have previously and successfully utilised in previous matters is to prepare a questionnaire customised to the specific matter. The questionnaire gets sent to all relevant custodians before data collection is undertaken. Each custodian completes their questionnaire and sends it back. Many users will have different work habits and while there may be firm policies in place for data workflows, not all employees will follow all the policies and workflows. (If I have learnt one thing over the years, people will work in a way which suits them the best, unless they are forced to do so). By asking these simple questions at the outset of the process you will massively increase your chances of collecting the correct data from the correct locations, this will minimise your time and cost.
What type of collection
Generally, across my experience in Computer Forensics and eDiscovery, there are 4 types of collection commonly encountered, I have listed these below with some advantages and disadvantages of each, it is important to select the right collection strategy to for each matter.
* This is not every possible scenario and there will be other flavours of collection.
A few data collection Dos and Don’ts
- Keep records of what has been collected and by whom
- Keep a chain of custody record
- Ensure that the documents are collected in a way to maintain the metadata
- Seek assistance with collecting data from none easily accessible sources (such as mobile phones, tablets etc)
- Enquire about what systems have been in place across the whole collection timeframe
- Enquire about data migration from previously archived systems
- Ensure you have considered collection from all archives/backups if relevant
- Don’t allow your client to forward their emails to you to use as evidence. (If they are to be sent by email, ensure they are sent as attachments)
- Beware of using key word search strings across systems to identify documents for collection, these key word searches will not identify documents contained in zip files, password protected documents or non-OCR’d documents.
- Don’t drag and drop efiles to a USB for collection, this will make changes to the document metadata
- Don’t be afraid to call in experienced experts if things seem to be getting out of control.
There is not a one size fits all solution to data collection. The above is a basic rundown of some things to consider for matters that have a data collection aspect. Please use this as a guide for some things to consider, not as a complete collection guide.
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About the author – Ben Goodland, Head of Solutions
His industry knowledge and experience is utilised across the business, supporting the consulting and technical teams with major projects and managed services. Ben has a forensic background, and is well versed with Nuix/EDT processing, Ringtail and Relativity, having been a consultant in top tier law firms and working with various legal teams, bringing a blend of technical and project management skills to the table.
Since becoming a Sky Discovery consultant, Ben has been utilising his skills and industry experience in forensic collection, to ensure Sky Discovery’s practices and procedures evolve with new technology and solutions within the market.
Previously, Ben has been working predominantly in the law firm arena, having worked with Allens, HSF and more recently Gilbert + Tobin.
Sky Discovery is a leading independent Australian eDiscovery firm. We focus on building strategic relationships with leading mid-tier, specialist and international law firms in Australia that require outstanding eDiscovery services to achieve successful outcomes on disputes, investigations and regulatory matters. We are renowned in the Australian market for having one of the largest teams of eDiscovery experts, a 24/7 service model and, technological and service innovations that underpin speed and quality whilst providing demonstrable cost savings.