Issue link: https://epubs.iltanet.org/i/25416
of that lawyer who is educated in technology and is preparing to make a dent in your defensible argument. DISCOVERY RISKS What can go wrong when collecting ESI? Content can be modified. Dates can be changed. Entire e-mail messages and files can disappear. So, what can be done? When identifying data, it is critical to look at all sources. Working closely with the IT organization will help you define all locations that store the files. For example, an e-mail that is on the Exchange e-mail server might also be archived to a user’s desktop in a local PST file; it might also be backed up to a tape for disaster recovery purposes. That’s why you shouldn’t keep your efforts focused on one source — it will limit your flexibility and lock you into a set path that might prove to be a flawed process down the road. Instead, look at all possible locations and validate the accuracy of the data multiple times, and from multiple sources, in order to have data that is defensible in the courts. Equally important is to ensure that the data is not modified during the identification process — especially dates and other metadata. Many discovery solutions index data in support of the discovery process and, in so doing, will change the accessed date. If opposing lawyers can successfully show that the date has been modified, they can expand this argument and create doubt around the accuracy of the content. Working with a discovery platform that does not modify metadata is essential to a more defensible approach. Though these discovery issues might not be the litigation support professionals’ fault, they will be the ones blamed. LITIGATION SUPPORT’S ROLE The litigation support team is at the center of the data identification and collection process. It ultimately falls to this team to create a defensible and comprehensive process that stands up in court. Working closely with the legal team to understand the specific ESI requirements for a case is just one side of the equation; litigation support also needs to coordinate with IT to make sure the process is sound. Bridging the gap between these two factions is essential to a defensible data collection process that can stand up to even the most tech-savvy opposing counsel. There are four actions that must be considered when defining a new, defensible process. 1. Work with IT to understand all data sources. The first task when faced with an ESI collection is to look at current online network data. Though this data is typically more readily available, many other sources of e-mail messages and files exist on corporate networks — sources from which it might be more defensible and cost effective to collect. Tap into IT’s knowledge of e-mail servers, like Exchange, and learn that deleted e-mail can still be recovered. This source is often not explored because it is not widely known in the litigation support arena, but IT can provide guidance. Of the three sources of e-mail messages, the most impervious to tampering is the one residing in offsite storage, typically on backup tapes. With advances in technology, this collection source has become more readily available and less expensive to access. www.iltanet.org Litigation and Practice Support 31