Most attorneys are familiar with e-discovery. It often evokes images of people reviewing documents for responsiveness and privilege, or producing documents with Bates stamps on them. The e-discovery process, however, actually starts well before document review. Using the Electronic Discovery Reference Model, we learn that the far left-hand side of the e-discovery workflow is centered on information management. Decisions we make regarding information management and how to handle data will greatly reduce the eventual burdens of document review and production.
The common term for information management in a corporate setting is “information governance.” Information governance refers to a set of policies and practices which help an organization understand where its data is stored and how it is managed. This article will focus on information governance as it relates to data storage, management, preservation and collection in the context of mitigating burdens of e-discovery.
The first step in any information governance initiative is to map where data is stored within an organization. It is of paramount importance to understand the complete universe of data sources in order to make informed decisions about how to manage them. This is often easier said than done, as many organizations not only store data in different geographies, but also in a multitude of repositories including email systems, shared drives, and document management systems. It is time well spent, however, to work with your IT department and map out all sources of data. Since such data mapping exercises become out-of-date quickly in most organizations, plan to revisit the process every three to six months in order to make sure that new data sources are being captured.
Once data storage has been identified, it is important to determine how the data itself is being managed. Ask questions, such as: Who can create data in each location? How long can each piece of data reside on the network? Are there any regulatory issues governing data preservation and retention? The more you understand how data is created and managed, the easier it will be to make decisions about how to improve the data management process, which may mitigate future e-discovery costs.
For example, if data can be purged at the conclusion of a specific project, you can avoid the time and effort spent to review such data during a potential e-discovery document review. In order to avoid spoliation charges, however, it is also important to establish policies and procedures about purging data and to have methods in place to track who deleted data, as well as when and why.
Be aware that data management can be a complicated process, and that many computer systems are fairly limited in their ability to control who can create, modify and delete data. Work with your IT department to fully understand the scope of data management capabilities within your organization.
Once litigation is pending or reasonably anticipated, it is important to preserve data related to that litigation. A major issue on many corporate networks, however, is how to best preserve data. What technological controls can be put in place to ensure that data, which may be relevant, is not deleted? The answer to that question will greatly depend on which technologies are being used to manage the data. Some systems may allow the IT department to prevent deletion of certain data from a central console, but other systems may require that a preservation “copy” is made in order to create a snapshot of the data at a particular moment in time. As with the data management step above, fully discuss your organization’s preservation capabilities before the need to exercise them arises.
You need to also consider how data is handled once a preservation hold is lifted or how to preserve some, but not all, of your employees’ data under a preservation hold. Many systems have limitations or may require an “all or nothing” preservation approach. Finally, determine how your organization plans to track which preservation holds currently apply for a particular user. Some custodians may be impacted by multiple preservation holds at the same time, and it is important to have a way to track holds which are layered on top of one another. The method of preservation you choose and the management of those preservation holds will vary greatly, depending on the way your organization manages its data from the outset.
Data collection is the process of acquiring or copying data, often for the purposes of e-discovery analysis and review. Data may be collected from a preservation copy or data may be collected directly from the network or storage location. It is important to have a collection approach and methodology defined so that the approach can be audited and defended in court if necessary. Your information governance protocols may require forensically sound data collections in all instances, or may require collections to be performed by a certified forensic examiner. Your litigation exposure and industry may influence how strict your data collections become.
Information governance is an important stage in e-discovery which takes place well before documents are reviewed by a legal team. It is the foundation for all future decisions which you will make in the e-discovery lifecycle. Good information governance programs take months, or years, to fully develop and require a strong working relationship between business decision makers, the legal department and corporate IT departments. Focusing on data storage, management, preservation and collection as it relates to e-discovery will often result in a much smoother e-discovery workflow with fewer headaches and better cost control.