Best Practices for Handling Special Data in eDiscovery

• November 30, 2021
• Gulfstream Legal

Special data – like Slack chats, Zoom meeting recordings and emojis – have increasingly shown up in eDiscovery over the past two years. The increase coincides with the switch to remote work forced by the worldwide pandemic. With more organizations staying with remote-only work or a hybrid model, this special data will continue to be important to eDiscovery.

Special data requires special handling and tools to maintain the integrity of your case, however. Incorrect handling and mismatched tools can result in the loss of case functionality, loss of productivity due to extended processing time, preparation requirements and multiple collections, and loss of money due to the extra cost to overcome mistakes.

Common mistakes that happen while handling special data in eDiscovery include:

1. The data is not collected in the proper format for desired use. For instance, cell phone data collected and stored in Excel will lose threading and emojis from text messages. Short Messaging data stored as HTML will lose threading and metadata. And enterprise archive data that is exported in an unusable or redundant format will lose functionality during Early Case Assessment or document review. Enterprise data is often highly unorganized because of the use of legacy systems, which can be difficult to collect from.
2. The wrong tools are used to collect special data. For instance, you should not use an Internet browser to collect and save social media posts, chats, and other web-based data.
3. Using the wrong experts to collect data. Many IT staff simply do not have the skills to collect data in the correct format for optimal eDiscovery.
4. There is a lack of communication between the IT department, case team, support staff, and eDiscovery vendor. Under communicating can lead to misunderstandings about the type of data involved in the case, where it is located, and how it needs to be collected and processed.
5. Missing data sources or data files can lead to various issues such as contentious disputes between parties if one suspects the other did not conduct a complete collection. Missing data can also lead to an increase in cost and delays during the discovery phase. Having to recollect from a custodian can cause unnecessary discovery costs and will require additional time for the collection, processing, filtering, review, and production of new data.
6. Collecting more data than is needed. Not fully understanding the types of special data involved in the case often leads to over-collection of data to compensate for the unknowns. Extra data means extra time processing and analyzing it.
7. Using the wrong tools to analyze and filter special data early in the case. The correct tools will net better information about the case early on and will eliminate irrelevant information.

Best practices for handling special data have emerged to help prevent the most common mistakes being made today. Law firms and corporate legal departments should be:

• Involve your eDiscovery expert early during data collection planning. The right expert will have greater knowledge of all types of data, including the special data that has emerged in the past few years. They will know how to plan for and accommodate special data throughout every stage of your case.
• Conduct custodial interviews with your case team and expert present. The information you can learn about both a company and a person’s habits during an interview will always be more detailed than discussing how things should operate with a representative of the IT group. You may find out, for example, if an employee complied with IG policies, stored data in unexpected locations or used unanticipated external media. You will also gain better insight into how the employee works with data in their environment. These details will allow both the legal and technical sides to have clear insight into what information needs to be gathered, and how to gather it.
• Discuss analysis options by data type with your expert. The correct option may not be a single plug and play for all data collected. Not all data is structured, and not all custodians access unstructured data via an unstructured data point. As such, distinct types of data that custodians work with may need to be gathered via different methods to preserve the authentic look/feel of that data. For example, if a user spends most of their time doing data entry, where they only see a data entry form on the front of a web-based application, collecting and presenting this information in an Excel-type report likely won’t be the best option for the case.
• Determine a data preservation strategy early on to prevent data loss. Working with the right outside eDiscovery expert will help you save time and money and also avoid unnecessary risk associated with data loss.
• Conduct a data scope exercise to gauge collection requirements. Data scoping is a subset of the data mapping exercise. All companies should complete and update their data scope on an annual basis. The data mapping exercise serves to identify all the potentials sources of ESI and the locations of these sources, including who manages them. A data scoping exercise will use this data map to identify which sources might require data to be collected. A scoping exercise allows experts to pre-review data sources for potential issues or problematic collection challenges. This also allows the case team the opportunity to evaluate the importance of potential data, remove data sources that may be redundant or unimportant to the matter, and prioritize data for the collection efforts. This exercise can also lead to insight into potential timelines, discovery costs, and any requirements from internal staff or experts.
• Use the right technology tools at every step of the eDiscovery process. The right tools may not be those that you use every day today. Engaging with an outside eDiscovery expert early will help you understand what tools you need to proceed with special data.

The keys to avoiding mistakes and following best practices when handling special data in eDiscovery start with engaging the right expert and using the right tools. These two practices will ensure data integrity, save time and money, and reduce risk associated with every case. Special data is here to stay – in everyday business and eDiscovery.