In recent years litigants have increasingly turned to remote data collection and similar technologies to avoid the significant cost –– in money, time, and manpower –– that typically accompanies digital discovery.
As the COVID-19 crisis has prompted travel restrictions, workplace closures and a plea from governments and health authorities for employees to work from home whenever possible, the case for remote collection tools has never been stronger. Even if on-site collection remains possible in some circumstances, it may involve putting employees at risk of exposure to the virus.
It’s likely that we’re still in the early stages of a major public health crisis. That’s why it’s critical that you implement a Coronavirus eDiscovery Readiness Plan that includes strategies for ensuring continued access to key data while reducing or eliminating health risks to employees. Start with data collection - often one of the most hands-on portions of the electronic discovery process.
The Traditional eDiscovery Collection Approach
Electronic discovery is a staple of 21st century civil litigation. It often involves forensics experts showing up in-person to collect data from an individual’s computers, email accounts, mobile devices or servers. It can be an extremely time-intensive and costly process: a single case may involve numerous data custodians, forcing a litigant to send digital forensic collectors across the country or world to obtain critical information.
The traditional collection approach is particularly challenging in the midst of a global pandemic. As the world enters an indefinite period in which people are encouraged to avoid non-essential travel, work remotely, and stay away from crowds, litigants and case teams should consider remote eDiscovery methods that will keep their employees safe.
How do Remote Collections Work?
Remote Assisted Collection Kits allow a forensic examiner to access data on a device that may be thousands of miles away. The RACK itself is sent to the data custodian, who receives it within 24 hours and then plugs it into their computer, server, or mobile device. The remote forensic examiner –– wherever they are in the world –– can then gain access to the device and gather whatever data they need. The RACK allows them to see the custodian’s screen and navigate the computer as if they were sitting at the keyboard.
Collecting data via a RACK is forensically sound and just as defensible in court as the traditional approach.
Remote Collections: Potential Challenges
Not all data can be accessed remotely. Depending on how it is structured and stored, some information may be completely walled off from outside access.
Organizations and individuals put in place a variety of security measures to protect data, including encryption, two-factor authentication and blocking access to USB ports. It’s important to discuss with the custodian which measures they have in place and how they can adjust the settings to accommodate a remote collection.
Finally, not all data custodians will be willing or able to accommodate remote collection. The person whose computer needs to be accessed may not have the technical skills or patience to deal with a RACK.
In any case, even if the data cannot be accessed via RACK, there may be other ways to obtain it without sending an employee to the site.
A Flexible Approach to eDiscovery Forensics is Key
When feasible, remote collection offers numerous benefits:
- Reduced costs
- Reduced burden on staff
- Avoids logistical challenges prompted by travel restrictions
- Reduces health risk to staff during COVID-19 crisis
As you plan ahead for weeks or months in which travel is severely restricted and employees are advised to work remotely, RACKs are one of a number of ways to ensure that you can continue to access all of the data your clients need to mount a strong case. It’s critical that you plan now for instances in which RACKs can work and what you’ll do in situations where they are not feasible.
Legility is a legal services company providing data hosting and management, technology-enabled services, consulting, flexible legal talent, and managed review services to in-house law departments and law firms. Legility is not, and none of its affiliates are, a law firm and does not provide legal advice as part of its services and nothing contained herein should be construed as such.