If you missed our eDiscovery Solutions team’s presentations last year in St. Louis and Kansas City—Five Things Every GC Should Know about their IT Environment—fear not, we have the recap for you here.
First, understanding why you need to know should escalate this education toward the top of your to-do list. When litigation strikes, or when the company is served with a subpoena or government investigation, you will be called to oversee the data collection and production process. Are you ready to report up the chain that the path recommended by outside counsel, or in some cases an eDiscovery vendor, is the right one for your company and for the matter? Are you being advised to deploy IT resources to copy multiple email accounts when you have an email system that you allows you to preserve emails in place? Are you defending spoliation motions because a relevant employee’s email account was deleted after they departed the company? Securing a basic understanding of the key IT systems in your company can reduce spend, direct energy to the case merits and strategy instead of discovery disputes, and reduce business disruption and strain on internal resources.
With that, GC’s confronting litigation related issues need to know:
1. Where emails are stored and for how long.
The type of email system, the version/subscription, and whether the company has an email archive all impact options for legal hold activity and search and collection. IT may be able to tell you tasks it can do, but that doesn’t necessarily mean that such action is appropriate or defensible. For example, a more recent version of Enterprise Exchange allows for preservation of select email boxes in place, but is not a great candidate for keyword searches prior to collection. Alternatively, certain Office 365 subscriptions provide for sophisticated options for running keyword searches on email, but only if certain best practices are taken into account.
Additionally, knowing when the email system was implemented, and whether emails from the prior system were migrated into the new system, is important. The relevant date range for the litigation may impact email that pre-dates your current system, and you need to know if you have it.
2. Where employees save documents.
Maintaining a list of key locations that relevant business units store documents allows companies to focus discovery efforts. File servers might be set up for personal and shared network drives, but what is in them may be duplicative of other locations. If employees prefer to use Sharepoint or Dropbox instead, you need to know that. Some cloud based options, like Microsoft OneDrive, have in-place hold functionality that would eliminate the need to collect documents in order to preserve them. Knowing if employees are instructed to save certain types of documents in certain places, and whether those instructions are actually followed, can go a long way in eliminating over collection.
3. What happens to the data of a departed employee.
When an employee leaves the company, their first order of business is normally NOT making a list of their data storage locations or reminding anyone that they may be subject to a legal hold. In addition, IT wants to free up resources and reallocate equipment, and may not be clued into legal hold obligations pertaining to that employee. Do you have a process in place to quickly determine if that employee is subject to a legal hold obligation, and are you confident their email or other data is not being wiped or repurposed when it shouldn’t be? Assigning a point person (or persons) for obtaining prompt notice of employee departures and cross referencing that with legal hold lists is key.
4. The backup tape rotation cycle.
Imagine the company holds departed employee email accounts for 30 days prior to deletion. Full backups of the email server recycle (delete) after 30 days. Now presume that on day 1 of the employee’s departure, there is no legal hold obligation. But on day 15, a legal hold obligation arises that implicates the departed employee. However, the legal team does not realize that this employee is relevant to the hold until day 45. The company now has 15 days to save that backup before it recycles.
In most cases, it is not required or expected that companies will pull backup for routine collection, however, if the only copy of a key custodian’s data (such as the plaintiff or an alleged wrongdoer) has been deleted but is still sitting on backup tape at the time the legal hold obligation arises, you will likely have to pull and preserve that backup. The clock may be ticking . . . do you know how long you have to act?
5. The role and capacity of the IT department when litigation strikes.
IT Departments vary in skill and capacity, but the role of IT in legal hold and discovery collection is vital. It is important that company processes and workflows take into account the size and organization of the IT department. IT departments have experienced professionals and vast knowledge, but they depend on direction and specific instructions from you.
We are here to help. Contact Husch Blackwell’s eDiscovery team for guidance on any or all of the Five Things discussed in this article.