Thought Leadership and Industry Trends
The surprising advantages of nontargeted collection of electronic documents
By Jeff Salling, Director of Business Development, CDS.
Once litigation is reasonably foreseeable, parties have a duty to preserve evidence. Companies must identify what documents may be relevant and take affirmative steps to ensure they are not deleted. However, the first question that arises is what information needs to be collected. Often, the inclination is to be targeted in collecting and preserving evidence to avoid the cost and time involved in large-scale collection. In many instances, a broad, nontargeted collection is the better method, offering several advantages.
- Completeness of data. Early in litigation, it may not be clear what documents will be relevant. The parties may not know all of the issues that will arise in the course of litigation or be able to identify which individuals may be holding evidence. By limiting collection, the data may not be complete and as a result may leave important information vulnerable to deletion.
- Reduced cost. It may seem like targeted collection would be less costly than broad collection, but frequently that is not the case. If it turns out that a party missed some relevant information, the client will incur the costs associated with performing a second collection to retrieve it. Gathering a broader data set at the beginning and then employing technology like CDS ECA to cull it down ultimately results in lower costs. There are even more costs that arise if a party has to try to restore information that was deleted. Experts and technology may need to be brought in to mitigate damage from failing to preserve the data. Furthermore, allowing data to be deleted may result in significant monetary penalties imposed by the court.
- Legal compliance. Federal Rule of Evidence 37 establishes the duty to preserve and sets forth the possible consequences for noncompliance. Parties are required to collect relevant documents and will not be excused for inadvertently targeting their collection too narrowly because they did not anticipate the need for certain documents. If something is lost, various sanctions may be imposed, including financial penalties, inferences that the deleted items were adverse to the party who failed to provide such evidence, and even dismissal of the action or entering of a default judgement against the party. Given the attention that Rule 37(e) received in 2016 (after the FRCP were updated), preservation concerns are at an all-time high.
The best tactic for companies to ensure collections go smoothly is to be proactive in their information governance. They should take several steps, including the following:
- Be prepared to act immediately after ‘litigation is reasonably foreseeable’. Even a short delay may result in loss of data.
- Establish appropriate litigation hold policies that emphasize performing full-scale collection at the outset.
- Have relationships in place with eDiscovery experts who can help with collection of data.
Contact CDS for a consultation regarding how we can help you protect your data.