EDiscovery begins with preservation and collection. Errors and omissions in preserving and collecting data create the greatest risk of spoliation and sanctions than any others, because when data is missed at the source it may never be collected or, worse, it may disappear. If an adverse party, agency or court then identifies the collection gap later, the results can be disastrous.
When the eDiscovery industry began to evolve from the seeds of the litigation support industry which had provided processing for paper records, preservation and collection began, naturally, with PCs and servers. Virtually all electronic records would be found on a network resource or a user’s local PC. Fear of sanctions resulted in broad retention policies, which in turn gave rise to enormous data stores which then needed to be culled and processed for litigation.
The high cost of handling these data stores caused corporations to get serious about retention policies and litigation holds, in order to ensure that necessary data was preserved and junk wasn’t. This meant that collection efforts were carefully targeted so that only the data that was actually needed was harvested for processing and review. The common practice evolved – relevant custodians were identified, then their PC’s were imaged and network email was preserved. In most cases, that sufficed as an exemplary collection process.
Fast forward to 2014. Most of us still do use PC’s, and most corporations do still have networks and email servers, but those devices really aren’t where most of us live our electronic lives. Most of our activity takes place on our phones and our tablets. That’s where we email, where we text, and where we network. That’s where we take our photos and our notes and even our entertainment. On an average day, most of us use our phones far more than our desktops or laptops. Business communication occurs principally on our phones and only secondarily elsewhere.
In addition, the “cloud” has evolved into a leading data store and source, for both individuals and businesses. Most of us have a cloud-based email account and at least some documents and photos stored in the cloud. Business use of the cloud continues to evolve and grow and supplant traditional LAN-based storage models.
A key factor here, as well, is the growth of Bring Your Own Device (“BYOD”) policies, in which employers allow or even encourage employees to use their personal devices for business purposes. Those diverse devices then come to hold discoverable information subject to preservation and production obligations, making them targets for collection in the eDiscovery context.
These developments have indelibly altered the data landscape for eDiscovery. PC’s and servers are still relevant, but they’re not where the true action is. Any effective collection effort needs to target phones, tablets and relevant cloud-based resources in order to be complete and ensure that gaps won’t be revealed later, bringing the risk of sanctions, adverse inferences, and all the other consequences of incomplete production and compliance.
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