Written by Doug Austin, Editor of eDiscovery Today
Sometimes, I like to take a topic I’ve written about before and revisit it to discuss how the topic has changed and evolved over time.
I’ve been working in litigation support and eDiscovery long enough (over 35 years) that I’ve seen quite a bit of evolution–and I’ve even been writing a daily blog long enough now (nearly 11 years) that I’ve seen some evolution in processes during that time as well.
One of the processes that has evolved significantly in recent years is chain of custody tracking of the evidence associated with electronic discovery. Chain of custody tracking is important to authenticating the evidence and being able to respond to challenges of the integrity of the evidence if they arise.
The Importance of Chain of Custody Tracking
Let’s start with a baseball analogy to illustrate how important chain of custody is – no, it’s not a Yogi Berra quote (this time).
In October of 2011, Milwaukee Brewers slugger Ryan Braun tested positive for performance enhancing drugs, which usually meant an automatic suspension for the player with the positive drug test. However, Braun and his legal team challenged the chain of custody process conducted by the drug collector, Dino Laurenzi Jr., who had waited to deliver the specimens to the lab, instead of delivering them right away like he was supposed to do,. As a result, Braun successfully got the test thrown out over chain of custody concerns (though he ultimately had to admit the use of performance enhancing drugs two years later when more evidence of his use of them came to light).
Here’s an eDiscovery example for the importance of chain of custody tracking In this case, the plaintiffs produced TIFF formatted emailsafter they had been forwarded from the subject computer to the office of the former attorney for the plaintiffs, rendering the metadata useless.
Because text in some emails appeared to have been “whited out” in the plaintiffs’ versions, and new and different text was seemingly inserted into the plaintiffs’ versions of other emails, the chain of custody for them was suspect, causing the court to order the plaintiffs to produce the original native versions of them.
How Chain of Custody Tracking Used to Be Conducted
eDiscovery workflows used to be highly manual and require data processing operators to move data through each step of the discovery process, which required a form for chain of custody tracking. You collected data, then copied it in a place where your eDiscovery processing software could proceed to process it, then once it was processed, you loaded it into your eDiscovery review platform to support document review.
Once potentially responsive documents were identified for production, you might have then loaded those back in the processing platform, which also served as a production platform. Because of the manual steps involved, the chain of custody form was important to capture information at each step such as the date and time of data transmission, parties involved, and description of the data itself to help demonstrate a defensible process for managing the data.
How Chain of Custody Tracking Has Evolved
As processes became more automated in recent years, the need for chain of custody tracking forms has diminished. Self-service eDiscovery has automated portions of preservation and collection (i.e., preserve by sending a copy of the files on a desktop or network share to the eDiscovery solution) where the eDiscovery solution would then automatically process and load those into the review module, where you could conduct your review and then proceed to perform document production.
Because this automated workflow eliminated several manual steps, chain of custody tracking was no longer needed for a large part of the eDiscovery lifecycle.
Today, that automation is extending even further, not just from preservation/collection through production, but truly “end to end” from information governance through presentation – the entire EDRM lifecycle! Metadata within the ESI collection is used to authenticate the evidence so that it’s verified throughout the process while being automatically moved from point to point.
The use of chain of custody forms is becoming a relic of discovery management of the past, along with microfilm and Bates stamping machines. Because of chain of custody tracking automation, thankfully none of us has to be put in the position that Dino Laurenzi Jr. was back in 2011 with Ryan Braun!
Learn more about how IPRO eDiscovery solutions can help automate chain of custody tracking.
And for more educational topics from me related to eDiscovery, cybersecurity and data privacy, feel free to follow my blog, eDiscovery Today!