E-Discovery: Preservation Means Knowing When to Hold 'Em

There is a distinction between application- and system-specific litigation tools and newer e-discovery litigation-hold software

May 9, 2009

4 Min Read
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The fourth of a six-part series on e-discovery from the Taneja Group .

In the court case Consolidated Aluminum v. Alco, the defendant suffered monetary sanctions for failing to properly apply litigation holds. In spite of the fact that Alco had a litigation hold policy in place, someone was asleep at the wheel. There were several serious issues: Alco issued the holds after litigation had begun, did not make the holds broad enough, and did not enforce holds when key employees deleted relevant data.

One of the federal rules of civil procedure's strictures requires that companies demonstrate consistent litigation hold practices. This does not mean that litigation holds must be issued willy-nilly. No one (with the possible exception of opposing counsel) believes that a company must lock up all its active data in case of potential relevance, no matter how slight. However, litigation holds do come into serious play when looming litigation is "reasonably anticipated" and when data has high potential relevance, no matter where it may be located.

This area is another example where human oversight and e-discovery technology can and should work together. Attorneys and IT should work together to decide what electronically stored information (ESI) should be retained for upcoming discovery actions, which individuals have custody of the relevant ESI, and where the files are located -- fileshares, email servers, archives, laptops. Once these decisions are made, then the firm can use e-discovery tools to search for and hold the relevant data.

There is a distinction between application- and system-specific litigation tools and newer e-discovery litigation-hold software. With application-specific tools, the organization must use a content store's individual hold tools. For example, if potentially relevant ESI is located in a content management system then IT would use that system's internal controls to place holds on data. If the ESI is located in an online archival system, then IT must modify system settings to exclude relevant ESI from deletion or migration activities. If the ESI is on tape, IT must either search the tapes and pull the relevant tape from the rotation schedule, or copy legacy tape data back onto networked storage systems. And if ESI is located on remote systems, then IT must find a way to search and hold it anyway, or hope that recent court decisions in favor of remote legal holds will not apply to them. (This is likely to be a vain hope.)There are specialized e-discovery applications like those from Index Engines Inc. that help in a tape-based e-discovery process, or those from Kazeon Systems Inc. that include remote office and home computers in their legal holds. No matter what situation they face, administrators must be extremely careful to enforce litigation holds throughout all of this media. To do it manually is an extremely difficult prospect, and e-discovery legal hold technology can be crucial to success.

If this all sounds hard to do, it is. Application-specific or content store-specific litigation hold tools do help, such as IBM Corp. (NYSE: IBM)'s Discovery Manager that works within IBM unstructured content stores or Symantec Corp. (Nasdaq: SYMC)'s Enterprise Vault for archived data. But e-discovery software really comes into its own with automated litigation holds that run across the data infrastructure to locate and hold potentially relevant ESI. Most platforms have this key capability, so the vendor question is not so much the existence of litigation holds in their products, but how the technology applies the holds. Typical key questions include:

  • Does the product hold data in-place or move it to a separate repository, or does it do both? Either choice can work, but they fulfill different functions. In-place holds are efficient and keep complexity to a minimum, while separate repositories are highly secure but add a layer of data movement and management. In-place holds (Kazeon) are efficient and keep complexity to a minimum, while separate repositories (StoredIQ Corp. , Guidance Software Inc. ) are highly secure but add a layer of data movement and management.

  • Does it de-duplicate identical results? A single email can go through a thousand permutations in the course of business. Instead of holding a thousand copies of the same email, the product should track and accomplish de-duplication.

  • Can it prove the hold process to a court's satisfaction? The two primary auditable factors are complying with the search parameters agreed upon in the Rule 26(f) meet-and-confer, and also demonstrating that searchers observed proper security.

  • To what level is it automated? The traditional litigation hold process is manual, where the legal team or IT emails custodians to tell them not to delete certain emails. This is just about as effective as it sounds, which is to say not at all. An automated process follows set policies to collect matching data, de-duplicate identical results, and apply holds to prevent modification or deletion.

  • Does it extend to remote computers as well as network devices? Recent court decisions extend the e-discovery process to remote computers in branch offices and employee homes. The product should extend searches and holds to remote sites as well as the corporate network.

    Next, the fourth step in the e-discovery workflow: review and analysis.

    Part one of this series can be found here.

    Part two of this series can be found here.Part three of this series can be found here.

    Christine Taylor is an analyst with Taneja Group , which provides research and analysis to the storage, server, and knowledge management industries.

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