One of the most painful and risky aspects of the EDRM process is the collection and preservation of uncontrolled custodian ESI on laptops and desktops for ECA and legal hold.
Now days, Judges expect corporate litigants have control of their electronically stored information so are not easily persuaded to allow months or years for a party to respond to a discovery request. In fact, many Judges now impose a 30 to 45 day discovery time line on the litigants. For example, one customer I worked with not too long ago was surprised to find that they had 12 TB of unstructured data (probably 3 times more on custodian workstations) they had to protect and search through for responsive data, and they had 45 days to accomplish this feat. 1 GB of storage can contain 10,000 to 70,000 pages of material. The average legally trained reviewer can review 40 pages of written material per hour to determine if the material is privileged or responsive. Without an automated process to filter out duplicates and other non-reviewable ESI, this customer was looking at reviewing at a minimum of 120 million pages of records. I don’t think they would have accomplished this in the 45 days allowed.
Now factor in unmanaged custodian laptops and desktops (and all external storage connected to those machines)… The above mentioned 12 TB of data is the easy part of this problem because the company at least knows where it is and can protect it from inadvertent deletions etc. In most cases, custodian controlled data presents the highest risk to organizations in civil litigation. How can you be sure all deletions of potentially responsive ESI has stopped as soon as the litigation is reasonable anticipated? In a recent well known case (AMD vs Intel) while under a legal hold, Intel employees inadvertently kept deleting email. In eDiscovery this is known as spoliation or destruction of evidence which most Judges take a dim view of. This action usually leads to an adverse inference where the Judge instructs the jury that they can assume the ESI was deleted and the jury can view it because the litigant didn’t want them to see it. It usually means the side which deleted the ESI has lost the case and the only question now is how many zeros they will be writing on the settlement check. You might be asking yourself…So What? I’ll find what I can in the time allowed and not worry about it. That strategy might work if the opposing counsel is totally unaware of the Federal Rules of Civil Procedure (FRCP) and has never read a newspaper before. Don’t count on it. The Judge and opposing counsel will expect a well documented and complete eDiscovery process. Telling the Judge “you just didn’t know…” hasn’t worked in 40 years.
One way to lower this risk is to create verifiable discovery processes, including automation to reduce the time to respond, to insure all ESI in an organization, including that ESI directly on custodian equipment can be centrally identified and managed centrally, quickly.
Iron Mountain Incorporated has introduced Connected® Classify & Collect, a solution which simplifies the collection process for distributed PC ESI to comply with a legal hold request as well as discovery. The Connected Classify & Collect offering helps businesses to quickly find relevant data on laptop and desktop computers to meet litigation and compliance requirements.
The Connected Classify & Collect offering makes laptop and desktop data easily visible, search-able and usable. It also protects data and prevents accidental deletion to support eDiscovery or internal investigations. Its enterprise-class data-classification capabilities give administrators visibility into vast amounts of data stored on enterprise PCs and allow them to lower eDiscovery costs by quickly collecting relevant information to be used for early-case assessments and first-pass reviews. Additionally, the Connected Classify & Collect offering helps businesses establish a thorough and defensible collection process with its ability to track all activities, including the search terms and documents returned to support internal reviews.
In my humble opinion, this capability has the best return on investment you will find today. Reducing your organizations risk in civil litigation discovery can be tracked to the bottom line very quickly.