Avoid an E-discovery Disaster

Be prepared to preserve data when your company is heading to court.

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Understand what spoliation is. Although you should get a specific ruling from your legal department, it's generally understood that spoliation is the deliberate or negligent destruction, withholding or hiding of evidence when an investigation or litigation is under way. At the risk of stating the obvious, it's a big no-no.

It doesn't matter whether you think certain data is important; once the e-discovery process has begun, your opinion has no weight. You can't risk charges of spoliation by deleting potential evidence. In Arista Records Inc. v. Sakfield Holding Co., the court found that the "[d]estruction of evidence raises the presumption that disclosure of the materials would be damaging."

In general, this means that whether or not the deleted material was indeed damaging to your company, the fact that you destroyed it means the law automatically assumes it was damaging. Furthermore, key to the claim of spoliation is the notion that the person had knowledge of the investigation or litigation. In some cases, the mere anticipation of an investigation or litigation is all that is needed.

Be ready to preserve all data, immediately. Now that you know what spoliation is, you know how important it is to be prepared when the e-discovery process starts or you receive a "hold" or preservation request -- a petition asking that certain data never be deleted or changed. If you have automatic cleanup or purging processes, you should suspend or discontinue them. If you don't know how much data is subject to the hold request, which is a typical scenario, you should stop all data destruction to be on the safe side.

You'll certainly want to be in very close contact with your legal department when a hold request comes along. Prepare a plan for responding to such a request, and test it just like you test your restore procedures.

Know what you have. Do you know where your data is? Do you think you have a handle on your data? Think again. I can't tell you how many times I've heard someone say, "They've found another server/drive/tape/flash drive."

IT staffers do a great job of taking care of current data, but as soon as data is put on a removable drive, it's out of your control. There's a lot of content out there that isn't managed, and every bit of it is potentially subject to discovery in a lawsuit.

Think about the last time you upgraded the hardware for an application server; what did you do with the old hardware? Is it sitting in a closet, or maybe still in the old rack just in case you have to fall back to it? The upgrade project is long over, but I bet the server still has data on it. Sure, the data is "out of date," but in terms of e-discovery, it could be a hornets nest.

It's absolutely critical to keep track of backups and archives. Make sure you know where the tapes are stored before they're sent off-site, and have a process in place to get them back once they leave the premises. Companies have faced sanctions for misplacing hard drives and then finding them later in the e-discovery process. Even that "busted old drive" can be critical when viewed in a legal light.

While these tips may not reduce the volume of e-discovery requests you face, they should streamline the process and give you peace of mind when e-discovery does arise.

Lawn is manager of custom services in the Houston office of FTI Consulting Inc. Contact him at greg.lawn@fticonsulting.com.

Copyright © 2009 IDG Communications, Inc.

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