Insights Articles

In today’s complex litigation landscape, data is everywhere – and the way you collect it matters more than ever. A small misstep early in the collection process can quickly create cascading challenges downstream, jeopardizing the defensibility of your case, slowing down review, and driving unnecessary cost. For legal teams, it’s not just about gathering ESI; it’s about doing it thoughtfully and consistently. Understanding the common pitfalls and implementing a strong, reliable forensic workflow in place is essential to maintaining evidence integrity and reducing upstream risk. 

2. Overlooking Non-Traditional Data Sources 

Emails and shared drives used to be the main focus of collections, but that’s no longer the full picture. Today some of the most meaningful evidence lives in chat platforms, collaboration tools, cloud applications, and mobile devices. Slack messages, Teams chats, Zoom logs, WhatsApp messages – these often capture the real conversations and decision-making that matter. Overlooking these sources can leave major gaps in your evidence story. 

Tip: Take the time to map all potential sources of relevant ESI and integrate them into your collection plan. Ensure your team has the right tools and expertise to collect cloud-based data, mobile devices, and ephemeral messaging platforms in a way that preserves accuracy and integrity. 

3. Skipping Documentation and Chain of Custody 

A collection can be technically sound, but without proper documentation, its defensibility can fall apart quickly. When there is no clear record of who collected what, when, and how, it opens the door to questions about authenticity and reliability. Even small gaps in documentation can create challenges later and undermine the defensibility of the entire collection process. 

Tip: Build documentation into your workflow – not as an afterthought, but as a core step. Use a structured forensic process that logs each handoff and action from collection through transfer. A solid chain of custody demonstrates diligence, preserves integrity, and helps prevent spoliation challenges down the road. 

4. Using Inappropriate Collection Methods 

Not all data collection methods are equal, and the wrong approach can do more harm than good. Techniques like taking screenshots, copying files manually, or relying solely on user-driven exports may seem quick, but they can alter metadata, miss important context, or omit critical information entirely. These shortcuts often create vulnerabilities that only surface later – during review, production or even in front of the court. 

Tip: Stick with validated forensic collection tools and repeatable processes that preserve metadata, context, and the original file structure. A defensible collection should be consistent, auditable, and able to stand up to scrutiny every single time. 

5. Ignoring Legal Holds and Retention Policies 

Legal holds are often talked about, but not always enforced consistently – and that is where risk creeps in. If a hold isn’t implemented or monitored properly, data can be deleted, overwritten, or altered, creating defensibility issues and potential spoliation concerns. The same applies when retention policies aren’t accounted for; they can unintentionally work against preservation obligations if teams aren’t aligned. 

Tip: Partner early with custodians, IT teams, and legal counsel to communicate and enforce legal holds. Make sure collection plans are aligned with existing retention schedules so evidence stays protected and exposure is minimized. 

Building a Defensible Collection Strategy 

Addressing these risks begins with proactive planning. A defensible collection strategy isn’t just a checklist – it’s a thoughtful approach that brings together early scoping, comprehensive data mapping, strong documentation, validated forensic tools, and consistent legal hold practices. When these pieces work together, teams avoid common pitfalls, reduce downstream costs, accelerate review, and strengthen their position during disputes. 

At Array, we specialize in helping law firms and corporate legal teams implement robust, defensible forensic workflows that protect evidence integrity. From complex data collection across chat platforms, mobile devices, and cloud repositories to expert handling of large-scale document reviews, our team ensures that your ESI is collected accurately, efficiently, and defensibly. 

Protecting Evidence Integrity 

ESI collection is no longer a simple operational step – it’s a key part of managing litigation risk. When teams avoid these common mistakes and follow a disciplined, defensible workflow, they strengthen the entire matter from the outset. Taking a thoughtful approach helps reduce upstream risk, preserves evidence integrity, and gives teams the confidence that their collection process will hold up under scrutiny.