This is the eighth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.
The Path to Production: Harvest and Population
(Part III of IV)
[Originally published in Law Technology News, December 2005]
On the path to production, we’ve explored e-mail’s back alleys and trod the mean streets of the data preservation warehouse district. Now, let’s head to the heartland for harvest time. It’s data harvest time.
After attorney review, data harvest is byte-for-byte the costliest phase of electronic data discovery. Scouring servers, local hard drives and portable media to gather files and metadata is an undertaking no company wants to repeat because of poor planning.
Harvesting data demands a threshold decision: Do you collect all potentially relevant files, then sift for responsive material, or do you separate the wheat from the chaff in the field, collecting only what reviewers deem responsive? When a corporate defendant asks employees to segregate responsive e-mail, (or a paralegal goes from machine-to-machine or account-to-account selecting messages), the results are “field filtered.” Today, we’d call this “targeted collection.”
Field filtering holds down cost by reducing the volume for attorney review, but it increases the risk of repeating the collection effort, loss or corruption of evidence and inconsistent selections. If keyword or concept searches alone are used to field filter data, the risk of under-inclusive production skyrockets.
Initially more expensive, comprehensive harvesting (unfiltered but defined by business unit, locale, custodian, system or medium), saves money when new requests and issues arise. A comprehensive collection can be searched repeatedly at little incremental expense, and broad preservation serves as a hedge against spoliation sanctions. Companies embroiled in serial litigation or compliance production benefit most from comprehensive collection strategies.
A trained reviewer “picks up the lingo” as review proceeds, but a requesting party can’t frame effective keyword searches without knowing the argot of the opposition. Strategically, a producing party requires an opponent to furnish a list of search terms for field filtering and seeks to impose a “one list, one search” restriction. The party seeking discovery must either accept inadequate production or force the producing party back to the well, possibly at the requesting party’s cost. Continue reading