Not dead yet: Custodian-driven collection in the age of collaborative spaces

What do Mark Twain and custodian-driven collection have in common? In circumstances centuries apart, the rumors of both their deaths had been greatly exaggerated. For custodian-driven collection, the death pronouncements began in recent years, when commentators announced that advances in search technology meant companies could now simply ‘‘search everything’’ (presumably by pressing a shiny red button marked ‘‘E-Z Search’’) and dispense with custodianbased limitations. The idea behind this premise was that sophisticated litigants had powerful search tools that could index and search the entirety of a company’s systems—thereby allowing parties to run search terms across their entire data volume instead of limiting them to a set of agreed custodians. In other words, with the latest nifty tools, the unverified assumption was that one can search all the haystacks in a vast field for that pesky needle.

This is counterintuitive for a number of reasons, not the least of which is the cost of leveraging these tools across data volumes that are increasing exponentially every year. It is far more pragmatic and proportionate to search only the haystacks (or data volumes) that a reasonable investigation indicates may actually contain needles in the first place. Not surprisingly, given the way companies have implemented enterprise search technology, coupled with the new ways information is being created and stored, custodian-driven collection has a new and important role to play in discovery and is far from its deathbed. Rather, in our current dataflooded business world, the emphasis of the amended U.S. Federal Rules of Civil Procedure (‘‘FRCP’’) on proportionality requires parties to consider custodian information as but one filter of several to be applied to arrive at a proportionate and reasonable collection of potentially relevant information. While the FRCP directly control only U.S. federal litigation, the concepts discussed in this article have broader application to collection and search exercises in a range of legal contexts (e.g., investigations, arbitrations, regulatory responses).

How We Work and How We Search

In the last twenty years, the way employees work together has changed significantly. Where once individual team members might have copies only of those documents upon which they personally worked, now companies provide shared network spaces or collaborative applications such as SharePoint, Google Drive, Box, and OpenProject, that allow multiple people in a workplace to access, share and edit the same documents. Although this technology has many benefits in terms of increasing communication and knowledge sharing among employees, it can also create collection and production issues because it can artificially expand the definition of ‘‘custodial’’ data in unhelpful ways that disconnect employees from the data they are actually using. In doing so, this technology potentially increases the amount of data in discovery without increasing the amount of relevant and responsive information.

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