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
