A couple of caveats before we go any further…The aforementioned blog post was written by folks who know the eDiscovery industry, having worked in it for years.  They are well known and respected, not to mention liked – by us and many others.  And we have no argument that their perspective probably represents the largest viewpoint amongst those who practice preservation/collection of ESI on a daily basis.  Our differing viewpoints may simply be the result of our respective constituencies: Recommind works with envelope-pushing firms like WilmerHale, Morgan Lewis, Fulbright & Jaworski, and many more Fortune 500 clients who comprise the leading edge of the eDiscovery industry.

Back to the matter at hand.  We see two trends gaining significant momentum amongst this leading edge, neither of which are discussed in most preservation and collection articles.  First, leading large enterprises are “graduating” from custodial self-collection in favor of a targeted collection process driven by the legal department.  Second, in making the switch to a legal-driven targeted collection process these same enterprises are aggressively moving away from forensic collection; in fact, for most forensic imaging is not even an economically viable option.  This evolution is turning the entire legal hold process upside down, and resulting in more than a little confusion and discomfort amongst practitioners – especially those long accustomed to simply relying on a preservation notice to protect them down the road in court.  The simple truth, as caselaw is increasingly showing, is that such abdication of responsibility in the preservation and collection process will no longer be tolerated by courts of law.

The factors pushing this sea change are several.  First, self-collection is simply too risky.  As numerous courts have stated, self-collection requires that each individual custodian – who are almost always non-lawyers – make their own legally substantive judgment about what is or is not a) responsive to the hold notice, and b) relevant to the matter at hand and/or the hold notice.  A typical receptionist (or sales rep or accountant or marketing manager or researcher) has no clue how eDiscovery works, or where “relevance” begins or ends, nor should they, as such considerations have no bearing on their jobs; the spoliation risk from their decisions, however, is significant.  Courts are increasingly requiring that legal departments – not custodians – make these substantive judgments, a trend that will only pick up steam.  Additionally, forensic imaging brings significant risk in a different way: because it routinely collects orders of magnitude more data than is needed in a civil matter, forensic imaging results in huge amounts of ESI that must be indexed, processed, filtered, searched, culled and often reviewed before it can ever be destroyed.  Not surprisingly, this process is frequently never completed, leaving a mountain of potentially toxic ESI lying in wait.

Second, self-collection is too inconsistent which leads to defensibility issues down the road.  Any time custodians are making substantive decisions and physically preserving and collecting ESI (or trying to), inconsistencies are bound to result.  What’s worse is the fact that these inconsistencies are difficult – if not impossible – to explain; unlike legal-driven targeted collections (which may have their own inconsistencies), self-collection inconsistencies are largely random and the result of a flawed process, as opposed to resulting from conscious decisions made by a legal department and documented for explanation later on.

Third, self-collection can be an extremely intrusive and disruptive process.  Most custodians are not lawyers, don’t work in the legal department and neither know much nor care about the discovery process.  They simply want to do their jobs, and view preservation and collection as an unwanted disruption for which they will get no credit.  For serial defendant enterprises, this disruption factor can result in significant productivity losses.

Last but not least is cost, which can be measured in several ways.  Over-collection is the most obvious, and is the Achilles heel to a forensic imaging approach (as discussed above) but is to a lesser extent also a problem with self-collection, as custodians routinely err on the safe side by preserving and collecting too much ESI.  Once this ESI is collected, it must be indexed, processed, filtered, culled, searched and reviewed before it can be deleted.  If completed, this process can easily cost more than $10,000 for each GB of ESI; if never undertaken, the potential risk from keeping this ESI can be enormous – either way, the cost is significant.  And while not often measured, lost productivity resulting from self-collection is also significant.

As we have noted on many occasions, the eDiscovery industry is going through many painful changes simultaneously.  While document review garners the lion’s share of attention in this regard, the preservation and collection process is no less important.  The leading edge of the eDiscovery industry is trying to tell us something with their actions, namely that self-collection and forensic collection are going the way of the Eight Track.  We should all listen.