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Multi-Stage Discovery:
How to Fish the E-Discovery Ocean

Gregory L Fordham

Traditionally, litigators like to cast the wide net during discovery.  In the era of digital evidence, however, there can be unintended consequences when casting the wide net. After all, a cavalier cast in the ocean of digital evidence could just as easily return the trophy catch as it could return useless salvage.

When fishing the ocean of digital evidence multi-stage discovery is a technique that can be used to reduce risk and increase efficiency.   Under this technique there are two basic approaches.

The first is to collect the low hanging fruit before proceeding to the harder to reach and likely more expensive digital evidence.   In fact, the hope is that there is never a need to harvest the harder to reach fruit. Clearly this approach is intended to satisfy the accessible versus inaccessible requirements of Rule 26(b)(2)(B).

The second approach is to recognize that not all the trees in the forest even have fruit to be harvested.  So, it is not even a matter of low hanging versus hard to reach.  It is simply a matter of likely benefit.

Clearly this approach is intended to address the situation where there may be numerous sources of digital evidence.  In the case of backup tapes, for example, some may be more likely to have items of interest than others.  A similar situation could occur in large populations of other media types like computer hard drives or external storage media.

The prospect of multi-stage or multi-tier discovery has authority in the 2006 changes to the FRCP.  In the comments to Rule 26(b)(2) the Committee noted that,

 “A party may have a large amount of information on sources or in forms that may be responsive to discovery requests, but would require recovery, restoration, or translation before it could be located, retrieved, reviewed, or produced.  At the same time, more easily accessed sources–whether computer-based, paper or human–may yield all the information that is reasonably useful for the action.  Lawyers sophisticated in these problems  are developing a two-tier practice in which they first sort through the information that can be provided from easily accessed sources and then determine whether it is necessary to search the difficult-to-access sources.”

Although litigators are learning the various culling techniques for sifting through the catch once it is landed, like de-duping and keyword search techniques, the practice of landing the entire catch in one cast of the net and then pursuing full scale evidence processing requires a bigger net, a bigger boat and a bigger crew along with their associated costs.

Certainly larger volumes offer greater processing efficiency than smaller volumes.  Even if the marginal cost of processing smaller catches is larger than a single large catch, the increased marginal costs could be offset should less overall processing prove necessary.

An iterative casting approach can have other benefits as well.  Many smaller casts allow the litigator to prototype its processing method and prove its discovery plan before proceeding to full scale production.  Such an approach could eliminate the need for re-processing the catch if shortcomings are detected before considerable budget is invested.

It should be understood that the multi-stage approach is intended for discovery and not for the preservation stage of a matter.  While production can proceed in stages, it is still important for preservation to be broad based and done at once.

Since the data never gets any better. it is important to conduct the preservation as soon as possible.  Simply continuing to use a computer can destroy potential evidence.

It is also important that, in most cases, the preservation effort focus on the media.  If the media is preserved then everything that could potentially be needed later has been captured.

In fact, it is a broad based and media based preservation effort that so easily permits a multi-stage discovery approach.  After all, once the data is preserved discovery can proceed at its own pace.

In order to keep preservation costs low, however, it is important to recognize the difference between preservation and subsequent production or analysis.  The reality is that preservation need not be costly or overly burdensome.