Author: Jeff Dreiling
Why is there so much data to deal with now?
This is a question we hear almost daily. The reality of today’s world is that we are creating vast mountains of data during most of our waking hours. We are also conducting our business from an ever growing variety of devices. Twenty years ago email was something that occurred through a desktop computer only. Now, we may email from a laptop that syncs with a desktop, our smartphones, mobile devices and home computer. Our documents are not stored on our hard drives or a network share only, we also use cloud-based storage and this doesn’t even start to cover conducting business through messenger applications or texts. In turn, these changes on how your clients conduct business is making your job as a litigator even more challenging. The discovery process has transformed and the knowledgeable negotiation upfront on ESI (Electronically Stored Information) Protocols/Discovery Orders are more important than ever.
Where is all the data coming from?
The proliferation of email as a work tool began in the 1990s and although the increase in year over year volumes appears to be stabilized (an average of 4.4% increase year over year is predicted thought 2021), those moderate increases are to an already huge amount of data.
According to the Radicati Group, in 2017:
- There were 3.88 billion email users
- The average office worker received 121 business related emails per day
- That same worker sent 40 business related emails per day
Let’s take a look at what those numbers actually mean:
Let’s assume an average business email user has a mix of attachments on their emails such as PDF files, Word documents, PowerPoint presentations and Excel spreadsheets. If we took 1 GB of that type of email data and were to print it, it would yield 75,000 pages or approximately 25 full boxes of printed paper.
According to a TechTarget survey in 2015 of system administrators across businesses of all sizes, the average inbox size was 2.7 GB. That data is now three years old and still represents over 67 boxes of printed email per custodian! If each of your custodians in a case carry with them 67 printed boxes of material to review for each year in question, we can start to see why data volumes are growing so rapidly.
Not to pile on, but this is simply an example of email data. We haven’t even gotten into file shares, mobile devices, social media and the dozens of other sources of potentially relevant information that we are legally and ethically bound to explore depending on the case and the circumstances.
Consider the following numbers:
- In 2013, Jay Yarow of Business Insider estimated that over 500 billion documents were created using Microsoft Office products
- Facebook became open to the public on February 4, 2004. By 2017, over 1.67 billion users were active on Facebook.
- In 2017, Facebook users were uploading 100 terabytes of data a day (if printed, just 1 terabyte of data is enough to fill up to 25,000 boxes with paper depending on the types of files).
- In our experience, the average mobile phone we collect contains 30 GB of user generated data (text messages, photos, videos, retrievable app data) that could be relevant.
There are examples for days when it comes to the exploding world of data volume. The bottom line is without a new way of addressing these huge (and growing) amounts of data in the litigation process, the time and costs associated with discovery will continue to spiral out of control. There are several strategies that can help lessen the burden of exploding data. More simple techniques that are largely employed in most cases include(Note: We will do a deeper dive about many of the techniques listed below in later blogs):
- DeNISTing collections of ESI
- Deduplicating ESI across the universe of documents
- Email threading and only producing the most inclusive message
- Date restriction and keyword searching
In addition to the more basic and tested methods listed above, today’s litigators have additional tools at their disposal to consider. To name a few:
- Technology Assisted Review (TAR)
- Data sampling
- Onsite inspection of systems and data
- In-depth custodian interviews
- Highly targeted collections
Our takeaway when it comes to the litigation process and these vast amounts of data is threefold:
1. Production Protocol is More Important Than Ever
It is more important than ever to make sure the ESI or Production Protocols are negotiated in good faith and with these data volumes in mind. The 2015 amendments to the Federal Rules of Civil Procedure (specifically Rule 26) deals directly with Discovery Proportionality, but if none of the counsel nor the judge are educated on these issues, the order is likely to be issued without consideration of such. Finding an advocate within your firm or outside (such as a litigation or eDiscovery consultant) to advise you on these potential issues is critical if you are not comfortable with all of the nuances related to ESI Protocols.
2. Use The Tools Available to You
Many courts, jurisdictions and individual judges have been working to help provide guidance on these issues. One of the more successful and well thought out examples of this occurs in the US District Court for the Western District of Missouri. Led by the Judge Stephen R. Bough, the Western District of Missouri has set forth not only guidelines, but also a checklist that can be used to try and help their Bar consider ESI early in civil litigation matters. A link to both the principles and the checklist can be found below.
3. Commercial Litigators Should Actively Participate in A Document Retention Discussion with Their Clients
Commercial litigators would provide tremendous value to their clients by helping them understand the costs associated with not having or enforcing a document retention policy. This includes limiting the size of each employee’s inbox, what devices employees are allowed to conduct business on, file shares and potentially leveraging a document management system to eliminate duplicative data, etc. Please note, many industries have specific rules and guidelines on record retention so that must be taken into consideration before simply deciding on a policy.
It’s true, there is more data than ever, but with a solid production protocol that sets you up for success early in the process, you can gain a strategic advantage during the discovery process. Dealing with ESI related issues early on can allow you to focus on what matters most – building a winning case for your client.