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E-Discovery: The Lifecycle of Data

August 22, 2019 Nicole Zendejas

E-discovery is an important aspect of litigation. Well-established data gathering protocols and workflow procedures pertaining to electronic data are important.  Meticulous record-keeping, workflow procedures, and processes help ensure that data is gathered lawfully, loaded and stored in an organized manner, and archived or deleted properly. 

Acquiring the Data

Data is obtained through many methods: from your client, from formal discovery, forensically imaged devices, or from third-party acquisition vendors.  No matter how it comes to you, it is crucial to ensure that the integrity of the data is not compromised during the acquisition process and that you keep accurate records to prove that the data was protected as it was collected.  Take care to protect the integrity of the data, and save yourself from the heartbreak of collecting and storing unprotected, useless data.

When obtaining data through formal discovery, it will likely come on a flash drive, CD, or by a ShareFile website.  Viewing and downloading the data needs to be done in such a way that the original metadata of the files is preserved.  When collecting data from devices such as a cell phone or hard drive, it is key to maintain an accurate, written chain of custody for the device(s) - from the time the device left the client’s or third party’s hands, to when it was in your hands, to wherever it may go from there.  This document may serve as a form of proof that the device and its contents were not tampered with or altered, and that the integrity of the data is intact.   

Data Loading and Storage

You know the saying: garbage in, garbage out:  If the data you acquire is disorganized or you know that the metadata has been compromised, but you decide to load that data into a review platform anyway, the possibility of gleaning anything useful from it is low or non-existent.  Ensure metadata and data fields are not altered or destroyed during the acquisition process, otherwise it will be arduous to absorb anything meaningful or useful during review.  Take care to insure that loading and storage of the data is handled appropriately so it may be used to your advantage.

Archival and Deletion

Archiving comes in many forms and may be expensive.  However, there are ways to archive data to avoid incurring large monthly costs for storage.  Options for data archiving range from deactivation while maintaining attorney work product all the way to complete deletion of the entire database including all attorney work product. Thus, it is important to anticipate what your client’s future needs may be.  If there is a likelihood the matter will be reopened or there is possibility for an appeal, consider archival options that maintain attorney work product but keep the matter designated as inactive on the network.  This is often the cost-saving option.  If complete deletion is desired, although usually not advised, keep in mind that data recall, and the associated attorney work product, is impossible.  What is gone is gone forever.

E-discovery workflow procedures and processes are important to establish and implement at the outset of a case, and should be a functional aspect of case management.  Data gathered and stored should enhance your case and support your arguments, or disprove your opponents’ - whichever way you want to look at it.  If you take time and care to put safeguards and processes in place before you gather and store data, you and your client may reap all the benefits that e-discovery offers.