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Courtney Writes

Gathering Electronic Data Safely and Efficiently

Dear Courtney,

I work for a large corporation that is frequently involved in litigation. We have offices in nine states and three foreign countries. Increasingly, discovery requests seek documents from our computers, particularly employee email. One of our chief concerns with regard to electronic discovery is learning how to efficiently gather data from our computers. How can we be sure we don't inadvertently change the data when we retrieve and copy electronic documents? Do we need to hire a computer forensic expert in all cases?

Brad P.
Los Angeles


Dear Brad,

The key to successfully gathering electronic documents is to plan ahead. From creating a formal data-gathering plan to deciding how and by whom the plan will be carried out, you must make some important decisions before you receive any document request.

Outline Your Data-Gathering Plan
Whether you decide to hire a third-party service provider or to use internal IT staff to collect the data, it is the responsibility of the company's legal team to provide the technicians with the legal requirements and work with them to create a plan to ensure that all the requirements are met.

Your plan should accomplish two objectives:
  1. Maintain the integrity of electronic data.
    You will want to ensure that document meta data is not altered, and to track the properties of each piece of data collected, such as custodian (employee) name, original directory structure, and basic system-level meta data (file name and path, dates created and modified, etc.).
  2. Outline steps for gathering necessary forms of electronic data.
    Computer documents often exist in many forms and may be saved in unexpected places. There are typically three types of data that should be considered: active, archived, and inactive.

    • Active data is information readily available and accessible to users. Active data is typically stored on individual user hard drives or company networks, and is tracked by the operating system.
    • Archived data is information no longer in use. It is generally stored separately to free space for active data. Archived data is often copied to portable media, such as backup tapes.
    • Inactive data is information that appears to be gone, but is still recoverable from the system. This includes recovered "deleted" files and data that is tucked away in areas typically reserved for the operating system.
In many cases, archived data and inactive data must be gathered only if specifically requested; in some cases, courts will not require its retrieval at all. (For legal research on this issue, visit the online Law Library at www.applieddiscovery.com.)

Determine Who Will Carry Out the Plan
Choosing whether to use in-house resources may simply be a matter of whether your IT staff has the time necessary to dedicate to the project. The advantage of using internal IT staff to gather data is that they already know the landscape: where and how data for each custodian is stored; what software and hardware are in use throughout the company, etc. In most cases, the bulk of the data-gathering work can be done by the company's IT staff, with some well-placed guidance from an expert along the way.

Whether using internal IT staff or a third-party service provider, it is crucial to ensure continuity throughout the process. Provide each data gatherer with identical instructions, and include a system of checks and balances to facilitate quality control along the way.

Chain-of-Custody Documentation Checklist:
  • Date, time, and place of collection or receipt.
  • The name of the individual who received the evidence.
  • A description of what was obtained, including media-specific information.
  • Media type, standard, and manufacturer.
  • All movement of evidence (evidence transfer) and the purpose of the transfer.
  • Physical (visual) inspection of evidence.
  • Procedures used in collecting and analyzing the data.
  • Date and time of check-in and checkout of media from secure storage.

Implement the Plan
Implementation of the data-gathering plan must take into account these factors: number of physical locations where data must be gathered; number and location of custodians from whom data has been requested; and, number and location of company servers, networks, or other storage areas where data resides. Next, all custodians should be interviewed to determine how they manage their data. To ensure that all the necessary data is captured, prepare a list of questions such as:
  • Where do you save your files?
  • Do you archive your files and emails? If so, how often?
  • Do you perform individual backups? If so, how often?
  • Do you use an external hard drive or other storage device?
  • Do you ever use a personal home computer for business?
  • Have you used any other company-provided computers during your employment?
Preserve Chain-of-Custody
The purpose of a chain-of-custody log is to prove that the integrity of the evidence has been maintained. Chain-of-custody logs document how the evidence was gathered, analyzed, and preserved for production. Documentation must be kept and readily available for review throughout the life of the evidence—from gathering or receipt to presentation in court.

Whether the matter requires gathering data from one custodian or 100, from one office or twenty-five offices around the world, gathering documents plays a vital role in the electronic discovery process. With a comprehensive plan in place, you'll be able to gather documents efficiently and with confidence.


Further Reading:
  • "Creating a Data-Gathering Plan"
  • "Chain-of-Custody Logging for Electronic Media"
  • "Storing and Transporting Media Safely"
To request a copy of any of these Fact Sheets related to data gathering, please send your request to edstandard@applieddiscovery.com .
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