Now You See It…Now You Don’t…Well, Maybe You Actually Never Saw All Of It
While basic in nature, when you are evaluating electronic discovery solutions do you ask your vendor/service provider the basic questions of:
1) Does your system and/or process recognize and index all available ESI?
2) Does your system and/or process identify and highlight ESI that is not recognized and indexed?
As informed eDiscovery professionals, it is reasonable to assume that there may be eDiscovery vendors whose systems do not recognize and index all available ESI. Not recognizing and indexing every file type is understandable given the myriad of file types in today’s digital world. However, it is also reasonable to expect vendors to highlight unrecognizable and non-indexed ESI in exception reports. If a vendor “selectively neglects” to deal with unrecognizable and non-indexed ESI by knowingly not noting it in an exception report, then spoliation of ESI may be an issue.
Spoliation is the destruction of records which may be relevant to ongoing or anticipated litigation, government investigation or audit. Courts differ in their interpretation of the level of intent required before sanctions may be warranted. Kroll Ontrack Glossary
Spoliation: The destruction or substantial alteration of evidence, or the failure to preserve evidence, for another’s use in pending or foreseeable litigation. Lexbe eDiscovery and Metadata Definitions.
Worthy questions. Worthy considerations. Worthy of answers (from your vendor/service provider).