Can Your Data Storage Process Stand Up in Court?

Why you need a defensible data retention and collection process.

By Jim McGann, Vice President, Index Engines

Poking holes in the management and retention of stored data has grown easier over the years. As lawyers have become more educated about technology, they can easily attack the retention and destruction policies an IT team employs and create doubt about the accuracy of the data. If your company is facing litigation, the more the opposing counsel knows about technology, the more dangerous they become. A lawyer knowledgeable about technology is a fierce opponent in the courtroom for those who don't have a sound and defensible data retention and collection strategy.

With so many changes in market expectations and advancements in technology, it is wise to review legacy data identification and collection strategies. Old technology that used to be "tried and true" may no longer be so. Leveraging new technology and new approaches, and tapping into the expertise from all departments within your organization to update data management strategies, will allow your company to stay one step ahead of that educated lawyer who is preparing to make a dent in your defensibility argument.

Discovery Risks

What can go wrong when collecting legacy data for a courtroom mandate? Content can be modified. Dates can be changed. Entire e-mail messages and files can disappear. It may be no fault of IT administrators; however, they will be the ones blamed. When identifying data, it is critical to look at all sources. Working closely with the legal team will help define all the potential pitfalls. For example, an e-mail message on the Exchange e-mail server can also be archived to a user's desktop in a local PST, and it can also be backed up to a tape for disaster recovery purposes. Therefore, keeping your collection efforts focused on one location will limit your flexibility and lock you into a set path that may prove to be a flawed process at a later date. Looking at all possible locations and validating the accuracy of the data multiple times from multiple sources is far more defensible in court than relying on just one source.

When considering dates and other metadata, it is important that during the identification process the data is not modified. Many data collection solutions will index the data in support of the discovery process and in doing so change the accessed date. Crawling an entire file system will result in all the dates of the content being modified, and you won't be able to defend the data. If lawyers are successful in showing that the date has been modified, they can expand this argument and create doubt around the accuracy of the content. Working with a discovery platform that does not modify metadata is essential to a more defensible approach.

Litigation Support's Expanding Role

The litigation support team should be IT's right hand during the data identification and collection process. Through collaboration, these teams must create a defensible and comprehensive process that stands up in court. Working with the legal team to understand the specific ESI (electronically stored information) requirements for a case is just one side of the equation. IT also needs to coordinate closely with litigation support to make sure the process is sound. Bridging the gap between these two factions is key to a defensible data collection process that can stand up to even the most tech-savvy opposing counsel.

You must consider four key elements when defining a new, defensible process:

1. Consider all data sources

The first choice when faced with data discovery request is to look at current online network data. This data is typically more readily available than other sources. However, many other sources of e-mail messages and files exist on corporate networks, sources that may be more defensible and even cost-effective to collect from. For example, leverage your team's knowledge of e-mail servers such as Exchange to collect deleted e-mail messages s that you might reasonably expect would be long gone. Thinking out of the box and recovering deleted e-mail messages from the "dumpster" in Exchange can shortcut more labor-intensive collection efforts.

Of the three sources (desktops, online networks, and backup tapes), the most "untamperable" source is the e-mail residing in offsite storage, typically on backup tapes. This collection source has been overlooked because it was historically difficult and expensive to collect from legacy backup tapes.

2. Become proactive with legal requirements

More outside counsel are advising enterprise clients to proactively manage legacy data in order to get ahead of the curve regarding data retention and identification.

The understanding of your legal department about what legacy data should be kept and placed on litigation hold, and what can be purged, is the first step in a proactive strategy. These legal requirements will allow you to establish a policy to save specific content, certain custodians, and intellectual property so that it is identifiable and ready for on-demand discovery.

3. Understand technology limitations

When culling data, it is important to understand any limitations that may exist with the technology platform. How are duplicates defined? Is the metadata modified? Are all the words in a document incorporated in a search?

Restrictions in document search solutions will impact the quality of your discovery. Only use tools that index all the content, and don't change any of the metadata. Some of the older search solutions compromise the indexing process, and this will hurt you.

4. Become a data discovery expert

Keep up to date on new technology. If you have been working with tools or vendors for many years and have not spent the time to learn how new technology can support more comprehensive, defensible and even lower-cost collection efforts, you should. It is often easy to fall into a comfortable process that is predictable. However, as new technology comes on the market, it tends to improve and strengthen the discovery process. Investing the time to understand technology trends allows you to stay one step ahead and create a current defensible collection process.

A defensible data retention and collection process is a focal point for any data that is presented in the courts. Quality, defensible data is critical to the success of your organization's litigation. No one wants to be found negligent or fined because of flawed data collection. Work with your colleagues to proactively create a defensible process; it is critical to your success now and will be even more so in the future.

Jim McGann is vice president of information discovery at Index Engines, a tape discovery and remediation company based in Holmdel, NJ. McGann is a frequent speaker on electronic discovery and has authored multiple articles for legal technology and information management publications. You can contact the author at

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