By Chris Wheaton, Privacy and Compliance Counsel, Code42
The average enterprise sees its data double every 14 months — nearly one-third of which is stored on endpoints, such as laptops and mobile devices. This rapid growth in electronically stored information (ESI) creates new challenges and drives unplanned costs in the corporate litigation process. But while many companies have implemented a solution for preserving and producing ESI for litigation, many still worry that their processes will be judged insufficient, exposing them to sanctions that result in high monetary and reputation costs. Since 2005, sanctions for spoliation of evidence have increased nearly 300 percent. In one landmark case in 2015, sanctions totaled nearly $1 million for repeated negligence in the eDiscovery process.
While the eDiscovery space is clearly in an evolutionary phase, the judgments—which can be both subjective and relative—appear to be based on four main criteria:
- Duty to Preserve. This is the expectation that counsel begins preserving relevant data from the moment a reasonable expectation of litigation emerges. The precise moment is hard to pinpoint, but is often months—even years—ahead of an official filing of litigation. By taking a proactive approach, enterprises can ensure continuous collection of ESI, so that legal holds can be quickly issued, custodians immediately notified and data instantly preserved and protected.
- Scope. This is the expectation that you preserve, collect and produce any and all information pertinent to the litigation. It refers to both the subject of content, as well as the type of data (email, internal files, social media, etc.). The impending changes to eDiscovery regulations aim to speed litigation and reduce costs by limiting frivolous information requests. Enterprises must still strike a balance in the information produced for and presented to the court. Submitting too little information can be perceived as a red flag. It gives the impression the organization is trying to conceal evidence and can lead to costly and time-consuming remedial information requests. Conversely, submitting too much information is also a risk. Requiring courts to parse excessive irrelevant data could be viewed unfavorably by a judge. Equally concerning: Producing non-pertinent information could expose your organization to additional litigation and put more of your private data at risk.
- Chain of Custody. The issue of modern connectivity also creates a twist on an existing consideration—chain of custody. In addition to producing data, you typically must also provide a continuous record of data movement and custody—who created it, who edited it, where it was stored, how it moved from location to location, etc. This extends beyond the issuance of the legal hold. Tracking the movement and custodians of data during eDiscovery is also critical to mitigating risk of sanctions and privacy breaches.
- Data Management Philosophy – Tying It All Together. As the merit of your eDiscovery process is judged by the subjective quality of “reasonableness,” even a statement of intent, such as an official corporate data management policy or philosophy, lends credibility to your efforts. In the event that you are unable to preserve or produce a given piece of ESI, a judge may look to your data management policy to determine whether you failed despite good intentions, or failed as a result of a negligent data management philosophy.
Organizations have been sanctioned for antiquated data management philosophies that fail to accommodate the modern realities of litigation involving ESI. “We delete all data after 90 days,” for example, is not likely to be considered a reasonable excuse for failing to produce relevant ESI. Instead, the stated philosophy should take a proactive stance, acknowledging the need for ongoing preservation and protection of data, preparing for immediate issuance of legal holds and notification of custodians, and comprehensively tracking the movement of all ESI.
With a solid, comprehensive data management philosophy guiding your efforts, you can create a foundation for a “reasonable” eDiscovery process. Meeting your duty to preserve, producing the right scope of ESI and thoroughly documenting the chain of custody will follow naturally from this overarching philosophy. Also, an effective data management philosophy makes it more likely that a judge—even one well-versed in “reasonable” eDiscovery and the expanding view of ESI—will view any and all of your eDiscovery actions in a “reasonable” light.