Deciding how and when to preserve corporate data
Practical tips for managing data preservation
According to a recent Exterro survey, in-house legal and IT professionals deemed "deciding how and when to preserve corporate data" to be the fourth most controversial e-discovery issue in 2015, with 50 percent of respondents listing it in their top five. The topic was discussed as part of Exterro’s Most Debated E-Discovery Issues webcast series in April 2016. This white paper, in which we hope to add some clarity and supply some practical tips for managing the issue, is adapted from that discussion.
How and when to preserve data
Questions concerning how and when to preserve data for a litigation or an investigation can sometimes be more complex that they first appear to be. There is often no bright-line indicator for when an organization needs to start preserving data, other than "when litigation is reasonably anticipated," which is itself open to interpretation.
Judges and courts around the country have used their own discretion to decide when preservation must occur, and their decisions are often dependent on the circumstances surrounding the case. Now though, the new Federal Rules of Civil Procedure (FRCP) rules appear to have generated more discussion surrounding defensible preservation tactics: collection, legal hold, or a hybrid method.
Three approaches to preservation
There are three different preservation approaches commonly used in discovery today:
- A preserve-in-place approach: Preserving in place requires the distribution of a legal hold and asking people throughout the organization to maintain the data where it is.
- A collect-everything approach: In the early days of electronic discovery, companies would preserve very broadly by imaging everything and then funneling it down. As time went on and companies got bigger and data volumes exploded, the idea of imaging thousands of hard drives became too cumbersome, expensive, and sometimes just not feasible.
- A hybrid approach that combines preserve in place and collect everything: There is a happy medium between preserving in place and collecting everything, and it is the approach we most frequently recommend.
An organization, in most circumstances, will not use the same preservation approach for all matters, depending on the organization and the circumstances surrounding the case.
Training and education
Regardless of the approach, perhaps the most important element when preserving corporate data is training and education. More and more employees throughout the enterprise now understand that litigation occurs in the normal course of business. But those same employees may not understand what to do with their data, and that can swiftly cause trouble.
At the same time, instilling good preservation practices around discovery can be an effective step toward better information governance practices enterprise-wide. As Vestas’ Beth King says,
What we say to people is ‘What are you putting in your e-mails? How are you communicating with people? How are you documenting what you're doing?’ It has a dual functionality. It’s educating people about discovery, but it's also about the best way to maintain records and communicate.