Many litigators increasingly understand the risks and cost of poor data collection. Whilst they are aware of the need for defensible and effective collection, it’s a moving feast. As data uses, types and locations have extended, data collection strategies have needed to evolve. In 2023, as well as the ubiquitous email, evidence identification and collection strategies need to consider data types including SMS, video conferencing content and chats (just think how often you use MS Teams, Zoom and equivalent in your own work), mobile calls, project management database records and accounting software records.
Clearly, evidentiary data is at the core of litigation, investigations and regulatory responses. Data is not only a valuable asset, but also a potential liability if not handled properly. As elitigation experts, the first questions we have of our clients at the outset of a new matter revolve around the type of data that may be relevant and any steps that have been taken to formalise identification and collection.
As noted, a key aspect of data management is defensible data collection. Defensible data collection is the process of identifying, preserving and acquiring data in a way that minimises the risk of spoliation, alteration or loss, and maintains the integrity and authenticity of the data. Defensible data collection is essential for complying with legal obligations, enabling effective evidence review and analysis, reducing cost and ensuring the admissibility of evidence.
Why should data be collected defensively?
Why does data need to be collected defensively? There are several reasons:
- To comply with legal obligations: Although jurisdictions throughout Australia vary in the manner and scope of disclosure / discovery obligations, clients should assume an obligation to disclose relevant data sources, preserve potentially responsive data, document the collection process and methods, and to produce data in a timely and appropriate manner.
- To reduce cost: Data collection can be a costly and time-consuming process, especially when dealing with large volumes of data from diverse sources and formats. Defensible data collection can help reduce costs by applying a targeted and proportionate approach, based on a clear understanding of the scope and objectives of the task. Defensible data collection can also help avoid unnecessary duplicated effort, over-collection or under-collection of data, which may lead to increased processing, review and storage costs. More than once, we have been approached by litigators whose clients have undertaken their own data collection without a proper understanding of process or obligations and have then been required, after inadequate discovery, to supplement that process or essentially start Attempts to avoid any expense of professional guidance can be a costly mistakes.
- To ensure the admissibility of evidence: Data collection can affect the admissibility of evidence in court or arbitration. Defensible data collection can help ensure that the evidence is reliable, relevant and authentic, by preserving the original metadata and content of the data, maintaining a chain of custody and audit trail, and using forensically sound tools and techniques. Defensible data collection can also help prevent or counter challenges to the evidence by opposing parties or experts.
- To support effective data analysis and review: Current generation ediscovery software environments offer a myriad of clever ways to analyse and review evidence based on data relationships, people relationships, conceptual analysis and more. However, ineffective data collection can compromise these capabilities (or even make them ineffective), putting the legal review team on the back foot and potentially risking a successful legal outcome.
How to collect data defensively
Collecting data defensibly requires adopting best practices that are consistent with the legal framework, industry standards and case-specific requirements. Some of these best practices include:
1. Conducting a thorough scoping exercise: Before collecting any data, it is important to conduct a scoping exercise to identify the relevant data sources, custodians, formats and locations. This may involve interviewing key stakeholders, conducting surveys or questionnaires, mapping out the IT infrastructure and systems, and reviewing existing policies and procedures. The scoping exercise should also define the scope of preservation and collection, based on the issues of the case.
2. Implementing the practical equivalent of a litigation hold: Unlike the position in the United States, there is no equivalent of the ‘litigation hold’ embodied in legislation at either a federal or state level in Australia. However, if a company is, or reasonably anticipates being, a party to litigation, there may be serious consequences for destroying potentially relevant documents. These include:
· the court drawing adverse inferences from the unavailability of evidence
· an inability to support a claim or defence in the litigation
· the court striking out the company’s pleading; and
· exposure to criminal liability. (Note that some states have embodied into legislation criminal sanctions against the wrongful destruction of data, Crimes Act 1958 (Vic).)
3. Using appropriate tools and methods: Depending on the type and location of the data, different tools and methods may be used for data collection. For example:
· For cloud-based data sources such as Microsoft 365 or Google Workspace, specialised tools such as Relativity Collect or Archive360 may be used to collect data directly from the cloud platforms in a secure and efficient manner.
· For structured data sources such as databases or enterprise applications, customised scripts or queries may be effective in extracting relevant data fields or records in a consistent and accurate.
· For unstructured data sources such as emails or documents, forensic tools such as EnCase or FTK may be used to create bit-by-bit copies or logical images of the data in a forensically sound manner. Note that forensic collection may not be required for simple collection tasks.
We can help
Data collection is not always complicated. It’s often not expensive. However, defensible and effective data collection does require know how that encompasses an understanding of data, software, methodology and legal practice and procedure. As your elitigation partner, we can provide guidance to ensure that you are armed with a strategy that applies best practices, using appropriate tools and methodology, so that your elitigation project begins on a solid and defensible foundation.