E-Discovery Tip Sheet
Taking Up Collections, Part 2: Small Office Preservation
In our previous conversation we discussed preserving and collecting that most essential cornerstone of corporate information, the file server. I did not specifically address small office considerations, so before I move on to collecting electronic mail, let me set that right.
Preserving the Small
Companies whose employees number in the single or double digits are particularly vulnerable to the rigors of electronic discovery. Even a third-party discovery request or subpoena can stop a one-server office in its tracks:
1. Generally there is no one in such a firm whose full-time job it is to manage information technology; it will be an outside contractor (at an hourly rate) who must assist with setting a hold and collecting data, or the inside person who is least afraid of computers.
2. There will not, with very rare exceptions, be a document destruction policy or archiving rules in place.
3. If there’s one server, and it’s getting full, there may be problems protecting old data or saving new data.
4. Backups, if made at all, may well be more haphazard than at a corporate datacenter.
5. Without an in-house general counsel, legal advice on preservation may be costly at best, or unavailable at worst.
In any event, it is in all parties’ best interests to implement collection as quickly and thoroughly as possible so that the firm may get back to business. It is even more important for a small firm than for a large corporation to not take any shortcuts,
because there is little or no slack available if a collection is incomplete or, worse, improperly done by an unqualified person.
Self-Preservation
I am often asked about whether it is prudent to save money by doing one’s own collection; after all, collection cost should be in line with the value of the case in any event. Saving money is good, if it is true savings and the persons collecting know what they are doing and document every part of the process. But like maintaining roads and bridges, not spending now can cost a bundle later on. Here are some common
considerations and pitfalls:
First, not imposing and confirming a legal hold. Require a response to an email, or, in a small office, put an explanation and acknowledgement for signature on everyone’s desk.
Second, spoliation:
o If you copy and email a bunch of documents to requesting counsel, you may have just hosed the document metadata and, at minimum, will be facing a more rigorously-worded request to produce the same data over again.
o If you have all relevant files copied to a central folder so that you may copy them off to a thumb drive, once again, you’ve removed source folder information and changed metadata.
o If taking an entire folder, it is a good practice archive the contents to a ZIP, RAR, 7z or other compressed file container where original metadata and source folder information may be maintained; you will even have the option to password-protect the archive file.
o If someone takes a hard drive out of a PC and hands it to you, you don’t really want to plug it into your computer to see what’s there; give it to a forensic expert for write-blocked copying and preservation.
Third, documentation and testimony: o Chart every action taken –
Custodian and location
System type, make, model and serial number
Software (and any write-blocker hardware) used
Filtering criterial
Date and time copy commenced and ended
Preservation format (copy, ZIP or forensic archive [e.g. _DD]. o Be prepared to translate that documentation into an expert affidavit o Be prepared to testify on the collection process.
It is on this last point that I often see the DIY zeal seriously wane. There aren’t a lot of people who enjoy testifying, particularly if they’ve done it. I have read transcripts of some cross-examinations of unprepared technical experts that made Snakes on a Plane
look like a PBS documentary. If you have all your ducks in a row, have done everything by the book and written it all down, you should be fine; if you just
downloaded a 30-day evaluation of some neat software to grab user folders after just skimming the basic eval guide, your evaluation is about to take on a whole new dimension.
With respect to emails, DO NOT attach emails to an email as your production. You could use Save As within each message to save to .MSG file format (which contains the email metadata, message and attachments within it), or other formats such as .TXT, HTML or MHT, which are less desirable; this is a pretty laborious process. You may also drag and drop a selected message or group of messages to a Windows Explorer folder, which will create .MSG files in a less laborious manner. The date and time of the MSG file itself does not matter, the important stuff is inside the file.
However, sending an Outlook PST is perfectly all right, since the PST file is actually a container within which the properties of emails, attachments and other components are maintained. You may in fact folder emails for litigation collection by dragging and dropping (right-click and drag to copy), and then export these to a PST using Outlook:
Under FILE / Options / Advanced, select the Export button.
From Import and Export Wizard list, select Export to a file, and click Next.
From the Export to a File list, select Outlook Data File (.pst), and click Next.
Select the folder to export from in the folder tree, check Include subfolders if needed, optionally set any Filters (see figures below), and export.
But There’s More….
There is more to consider:
Handhelds – are they the company’s, or the individual’s? Are texts used in business?
Cloud storage and transfer – Box, Dropbox, Evernote, Google Docs: again, who owns it, and what’s there? Permission will be required.
Web mail – whose is it, and what’s there? Permission will be required.
Personal Removable storage – thumb drives, USB drives, burned DVDs.
Social media – if relevant to the action.
To sum up, there is no inherent reason why a small office cannot manage a collection, as long as the process is given all the care and deliberation of the company’s core business processes. Get trustworthy legal and technical advice, write everything down, and, if in doubt, ask your experts. To quote my colleague Dave Manber’s favorite adage, Measure twice, cut once.
More thrilling collection considerations next month!
-- Andy Kass
[email protected] 917-512-7503
The views expressed in this E-Discovery Tip Sheet are solely the views of the author, and do not necessarily represent the opinion of U.S. Legal Support, Inc.
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