Jason Baron, a thought leader electronic discovery, recently mentioned a topic that “ought to be blogged about,” namely that of automated collections vs. manual collections. Automated collection is the use of software and hardware to improve the speed and reliability of collection over the network while manual collections often require manual collection of hard drives, manual export of email from mail servers and the like. To frame the discussion, it is useful to think about Google, the king of automated collection. Google indexes billions of web pages across countless web servers across the internet. To do this, Google runs the GoogleBot, an automated agent that efficiently locates and crawls websites to find information that is then automatically indexed and made searchable. Imagine if Google had to have a person go to each website and manually navigate a browser to each webpage and then click “Save Page As” in the web browser. While this process is certainly doable, it would not be cost effective nor timely. Certainly no reasonable person would seek to build a search engine using manual collection. Given the state of technology available today, some judicial and industry leaders are wondering what are the risks of manual collection from an eDiscovery perspective and whether is it still reasonable or defensible to perform manual collection.
Dean Gonsowski responded to Jason’s call in an article titled “Manual Collections of ESI in Electronic Discovery Come under Fire:” in which he writes:
there’s no dispute that the “automated” collection methods available in litigation software referenced above have a number of features that make this approach more efficient – Dean Gonsowski
While he does not elaborate, the natural follow on question from this is “what benefits do automated collection provide?” Going beyond collection, we can extend this to asking what are the advantages of Automated Identification, Collection, and Preservation (ICP) vs. Manual ICP. Here are some benefits that have come to the top of my mind:
- Improve Success Rates and Lower Costs with Early Case Assessment (ECA): Early Case Assessment requires either pre-collection analysis or automated collection to avoid the long lag time that is typically consumed during a manual ICP process. Reducing that lag time from months to days or hours through automated collection can dramatically improve the success rate of ECA. There is currently some debate on whether ECA can truly occur after a manual collection or if it must occur before a manual ICP process. A number of eDiscovery analysts we have spoken to agree that to be considered “early” an ECA solution should utilize automated analysis through Proactive eDsicovery (aka archiving) or a Manage-in-Place capability combined with automated collection.
- Reduce Risks with Under-Collection Spoliation: With a manual IPC process, it is easy to overlook custodians with relevant data and under collect. The process of iteratively, and slowly, identifying custodians to collection and preserve information may result in under collection. Of note is the case Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of America Sec. LLC, No. 05 Civ. 9016, 2010 U.S. Dist. Lexis 4546, at *1 (S.D.N.Y. Jan. 15, 2010), where e-discovery expert Judge Shira Scheindlin ruled that relying solely on employees to search and select responsive information without proper direction and supervision was grounds for spoliation sanctions. Automated ICP driven by the legal team can easily mitigate the need for and costs of relying on employees to identify relevant information.
- Reduce Risks with Late Identification, Collection, and Preservation (ICP): In addition to inadvertent under-collection through process, some organizations miss ESI due to the time pressures associated with cases and produce ESI late. This can be especially damaging when the ESI is exculpatory or otherwise material to the case as in Thompson v. United States Department of Housing & Urban Development, 219 F.R.D. 93 (D.Md. 2003) where HUD was not allowed to include 80,000 emails it produced after the eDiscovery cut-off deadline.
- Reduce Costs with Matter-based ICP: Traditional custodian-based analysis and review provides only limited visibility into the operations of the organization. It assumes that the identified custodians have the relevant ESI. This can be problematic for a couple of reasons: (a) Increased Information Risk for Repeat Custodians which are often under multiple litigation preservation orders may have all their ESI essentially on permanent hold increasing the information risk profile of the organization and (b) Complying with Duty to Preserve before litigation occurs in situations (such as Adams v. Dell) where there is (or should be) anticipated litigation but litigation has not been initiated can be expensive using Manual IPC or later when sanctions are applied. Matter-based ICP with automatic collection can reduce the amount of risk and reduce the costs of ICP while keeping the organization in compliance with the FRCP.
Manual ICP is a slow process that increases information risk and can lead to under collection, late collection, and spoliation. On the other hand, automatic collection can enable ECA, fast collection, and Matter-based ICP. There is no question that automated ICP holds advantages over manual ICP. Given the risks associated with Manual ICP, the courts and industry thought leaders are correct to ask if manual collections are still relevant and defensible. In this article, I hope to have provided some of the key benefits associated with Automated ICP to help further this discussion.