eDiscovery for Small Business and Startups: Are You An Organized Data Saver?

eDiscovery for Small Business and Startups: Are You An Organized Data Saver?

Author: Eric Everson, MBA, MSIT-SE, JD Candidate*

Data touches every small business and startup alike.  While there may be a few outliers, generally every business today generates and collects data.  The founders of most startups and small businesses that I meet are primarily concerned with growing their businesses and generally do not have time to stop and concern themselves with the possibility of some future litigation.  As it turns out, preparing for the possibility of litigation can be as simple as establishing a value added electronic records management (ERM) solution for the business.

Let’s face it, as prices have come down, data storage hardware is cheap.  Today you can pick up a terabyte of external storage for under $100.  With all of this digital storage readily available, it is easy as a business manager to adopt a “save it all” mentality when it comes to data archives (email, documents, spreadsheets, reports, databases, etc).  This is where we begin our eDiscovery for startups and small businesses… become an organized data saver!

Perhaps you’ve never heard of eDiscovery or are new to the idea of data preservation in anticipation of litigation.  The truth is, many business owners learn about eDiscovery for the first time when it is raised by their attorney in response to a litigation hold notice.  As computers have streamlined business practices, an area of technology law called eDiscovery has blossomed.  In effect, eDiscovery rules subject business owners to very strict penalties for purposely deleting, damaging, or withholding data.  In eDiscovery, data is often referred to electronically stored information (ESI) and there is an abundance of legal procedure and case law that requires responsible preservation and production of this data.

One way a small business owner can protect themselves against eDiscovery penalties is to become an organized data saver.  What this requires is often simple, which is creating some organization and methodology to the data your business saves.  Some businesses are required by law to save certain kinds of data for many years and yet some data can be discarded routinely.  What you want from your ERM solution is organization that allows you to search effectively through the data that you archive and to establish a reasonable data retention policy that prevents you from creating a data landfill.  Do not simply dump your data into a hard drive and forget about it, keep it organized either by date, transaction, project, or some other criteria that fits your business.

When organizing your data retention policy consider things like whether the data is required to be stored by law for a statutory period (i.e. number of years for personnel files after termination), who created the data, how long are other companies keeping the same kind of data, what criteria is used to sort data, who is responsible for the data management and cleanup?  There are many similar questions to ask, but these few examples will get you started as you begin to become an organized data saver.

A quality ERM solution is not expensive to establish, but they do require active management which is an operational cost that every business manager should anticipate.  Not only will becoming an organized data saver help if you ever face a lawsuit, but it will also help you strategically streamline your data to grow your business today.

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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.  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 @iamtechlaw

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.

 

 #eDiscovery

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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