Wednesday, November 14, 2012

In-House eDiscovery and Data Preservation: Litigation Hold, Where is Your Data?

In-House eDiscovery and Data Preservation: Litigation Hold, Where is Your Data?


Author: Eric Everson, MBA, MSIT-SE, J.D. Candidate May 2013

Perhaps the most frightening phrase in-house counsel can hear today is “litigation hold.”  Where do you start? Who do you call? How do you preserve all of the data? How will this impact operations? … before you go into full blown meltdown, let’s start with the most important question first: Where is your data?
 

When approaching a litigation hold, understand that data management is a profession within its own right.  In an age where data fragmentation and cloud computing can quite literally have data scattered methodically all around the world, the first step in complying with a litigation hold is understanding where the data actually is.  This is likely to result in a different answer every time you encounter it, so take the time to understand your data and its location at the frontend of each litigation hold.  To best understand where your data is, you should start by seeking answers these core questions:    

Who manages the data?  This will be different for all organizations.  Some organizations may have a smaller IT team that handles all matters of data storage and archiving whereas, other Big Data companies may have entire business units or third-party service providers that help manage the data.  It is important to identify who “owns” or otherwise has the principle responsibility for the data that is the subject of your litigation hold.  Finding this person or team can be a process, but often nothing beats some old fashion telephone calls.  As a matter of developing credibility within your IT organization, I recommend contacting your local IT personnel first and working through contacts by way of internal referral.  This will get you more acclimated to the IT lingo and will help you the next time you have a litigation hold too… there will always be a next time. 

What data is to be included in the hold?  The biggest mistake in-house counsel can make is overreacting to a litigation hold.  Remember that the best defense A litigation hold does not validate you standing atop the desk declaring “Stop the Presses!”  Be cognizant that what you are seeking 99% of the time when processing a litigation hold is considered archive data (as compared with real time data).  This means that you never need to bring operations to a screeching halt, but rather must identify the data with a degree of particularity that is the actual subject of the litigation hold.  Know what you are seeking.  This means familiarizing yourself with more techie lingo like file types, indexing, and often understanding your Database Management System (DBMS).  This will all help you in exploring your preservation options and will help you hone in on where the data is actually located.      

Where is the data actually located?  Don’t get frustrated when personnel from IT makes a statement like, “The data is everywhere man.” or “Dude, it’s somewhere in the cloud.”  As frustrating as this may be as in-house counsel, this may be a very accurate statement depending on the physical structure you are facing in your company’s data management.  In fact, it may be a very telling observation for instance, if your company is using distributed data centers and applies a data fragmentation strategy to better protect the data.  What you need to ultimately get to, is where the data is physically located.  The data will be easy enough to identify by its IP address (which is essentially like saying its digital location) but it is best if you can drill deeper and identify down to the physical building, rack, and shelf that the physically stores the data.  Knowing where you data is will help you better manage its preservation.

Now that you have answered these core questions, you are on your way to better executing the litigation hold.  A litigation hold is not something to take lightly, but if systematically approached each time it can be a much less overwhelming process.  To improve this process looking forward, you may also seek to implement a data management policy that outlines defensible systematic data archiving and removal protocols.

 

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law where he will graduate in May 2013.  Prior to law school he earned an MBA and Masters in Software Engineering while working within the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  As a software engineer, turned law student, Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery        

Tags:  Preservation, Litigation Hold, Data, Data Center, DBMS, eDiscovery, Data Storage, Big Data, eDisclosure, in-house counsel, data fragmentation, Archive, File type, technology law, Eric Everson    

 

 

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