It’s already February, and chances are, most of us have already broken our New Year’s Resolutions. But no matter the time of year, when it comes to your ediscovery workflow, it’s never too late to trim the data you're collecting from messaging platforms and other SaaS applications.
Collaboration Data Brings New Challenges to Pre-Collection ECA
One of the biggest challenges with these data sources is scoping large environments.
Some companies may still be adopting collaboration platforms into their tech stacks, so these data environments are relatively manageable should a matter arise. However, this type of data grows exponentially, even more so than email, and what may be manageable today will be overwhelming in a matter of years or even months.
In large enterprises that were early adopters of messaging apps like Slack or MS Teams, it’s not unusual to see hundreds of millions of messages spread across millions of channels combined with one-to-one and group messages.
In a recent Hanzo blog, Trends for Collaboration Data Ediscovery in 2023, I mentioned examples from IBM’s Slack environment where a single custodian was connected to over 8000 unique channels [with each channel comprised of countless messages], and a single matter that contained 86 million messages connected to only 26 custodians.
Most organizations take a “collect everything” approach when it comes to these data sources in order to use Early Case Assessment (ECA) tools available in review platforms. But this increases both cost (by sending large datasets to outside counsel or an LSP) and risk (by sending large datasets outside the organization that may be irrelevant to the case).
What Is The Importance Of Determining The Scope Of A Matter In Ediscovery?
Why is scope important you may ask? It’s the rules. And not just any rules but the Federal Rules of Civil Procedure.
Rule 26(b) specifically discusses discovery scope and limits.
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case”
The Rules go on to lay out 6 considerations for determining proportionality:
- The importance of the issues at stake in the action
- The amount in controversy
- The parties’ relative access to relevant information
- The parties’ resources
- The importance of the discovery in resolving the issues
- Whether the burden or expense of the proposed discovery outweighs its likely benefit
The rule also states that “information within this scope of discovery need not be admissible in evidence to be discoverable.”
Burdens of Persuasion
Rule 26 was amended in 2015 in ways that took into account the changing landscape of electronic data and the technology available for collecting and reviewing it.
Specifically regarding Electronically Stored Information (ESI), Rule 26(2)(B) states, “a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” However, “the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause”
In other words, the requesting party only has to prove relevance, not proportionality. That burden falls on the objecting party, who must avoid broad, boilerplate objections, and specifically show how the proposed discovery is disproportionate.
Why Collect Less?
If opposing counsel is asking for large amounts of data from your collaboration and messaging platforms, ideally you’d want to be able to have insights into your data before collecting it all and sending it out for review.
As far back as 2021, market experts predicted the need for better ECA tools for collaboration data.
According to the LegalTech Publishing eDiscovery Buyer’s Guide, “Unstructured data [has grown] dramatically from the increased use of collaboration and file-sharing platforms as well as the work-from-anywhere trend. The expanding volume includes increasingly complex and diverse data, making it hard to use traditional eDiscovery software…[to locate] hard-to-understand data early, control litigation costs, and reach better, faster outcomes.”
And in the Gartner Market Guide for eDiscovery, they state in-house counsel should “expand their use of in-place search, [so] legal teams can introduce early case assessment earlier in the eDiscovery process — reducing the costs associated with subsequent collections, processing, and review.”
The Gartner report goes on to offer these solution features to futureproof your ediscovery process when it comes to collaboration data:
- Capabilities to cull data before the collection process while minimizing data volumes earlier in the eDiscovery process
- Solutions to address eDiscovery requirements in collaboration technologies, such as Microsoft Teams and Slack
- Solutions that allow legal and compliance users to share data across matters, optimizing storage efficiency and improving results
With pre-collection intelligence, large enterprises with very large and complex data environments can improve their preservation and collection strategies and exclude unnecessary channels or conversations, reducing the amount of data collected by up to 85%. This reduction saves time and money by reducing data volumes, mitigating data risk, and improving early case assessment speed, which is critical for rapid, informed decision-making.
So even if we’re well past the time of New Year’s Resolutions, you can still put your collaboration data collections on a diet. You’ll be glad you did the next time you’re facing litigation.
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