Electronic discovery (otherwise known as eDiscovery) is something every IT department must be prepared for, in case they are suddenly hit with a discovery request or dispute. Considering it is an IT issue as well as a legal issue, it would be wise for IT Managers to fully understand the email discovery process so that they can begin to prepare their team for it.
Attorneys will have tough questions for both parties about their current archiving and data retention policies. IT Managers must address what they are obligated to preserve, what format they are going to use to produce it, and what it will cost in terms of resources.
If you are an IT Manager, here are some ways you can prepare for dealing with an email discovery part of the request:
1) Know what it will cost you
Knowing how much an email discovery will cost you at each step of the process is extremely important, as typically there are many hidden costs, like those associated with…
Collection. For a collection of data to be deemed ‘forensically sound’ (eg. to ensure that no one has tampered with the document date), you might need a trained specialist. Your costs will include vendor fees and/or licensing fees, as well as media-related charges. If you have inactive data, it will require restoration and software licensing fees.
Processing. This will require the use of licensed assessment or review tools (often, more than one tool is used). Your costs will include data and text extraction, de-duplication, and imaging fees; project management time; and potential hosting fees. More often than not, you will have to narrow or broaden your search depending on the results.
Review. In particular you’ll need to figure out if you need to search for additional keywords, or identify filters that allow you to narrow down your search results. Your costs will include continued hosting and licensing fees; project management time for database setup and management; and additional keyword filtering or assessment. If human review is involved, this is the largest area of cost.
Production. This is where you will deal with any additional data and image format conversion. Your costs will include project management and media-related charges. You should also factor in the time it will take to deal with problematic files like Excel.
Post-production. You will need to import productions into a production review tool or index. Your costs will include project management and load time. There may also be additional costs for associating native files to records.
2) Prepare for specific demands
The opposite party can make extremely specific demands regarding what data to produce, as well as when and how to produce it. For IT Managers that are used to making these kinds of decisions themselves, the lack of control can leave them unprepared for alternative formats and time frames.
In a request the opposite party can choose what formats and storage media you will use when you are delivering the data requested. You will be in a much better place to respond to these demands if you understand this and equip yourself with the right tools.
3) Train your staff
It is imperative that your staff do not try to hide, destroy, or misrepresent any data. To the court, an excuse like “it didn’t seem important at the time” will not fly. It really will not matter why. For this reason you must educate your staff on the potential cost of deleting emails, and urge them to archive each one.
Work with your HR department to ensure that everyone in your organisation understands that email communications both internally and externally can be interpreted in many different contexts. Although this will not prevent the results of a request from damaging business operations or your company’s reputation, it can help you to reduce the likelihood of being found guilty of non-compliance with data retention requirements for your industry.
4) Know what your industry requirements are
Since the laws surrounding retention and destruction of communications vary according to industry, you need to know what applies to your organisation. Some industries are more heavily regulated than others.
Be totally clear on each requirement and circulate it within your organisation. As always, seek professional help before making any impactful decisions.
5) Consider an email archiving solution
An enterprise email archive can make sure that you are prepared in the case of an email discovery request, so you might want to shop around for the best email archiving option available to you. Whatever you do, ensure it has specific search and retrieval features that help with regulatory and legal compliance.
As we mentioned earlier, industry regulations vary depending on industry. In choosing an email archiving solution, make sure that it matches, meaning that it is not over-engineered or lacking in functionality for your business’ needs.
There are several considerations if you are torn between an on-premises and cloud-based archiving system. If you have a lot of up-front capital, an on-premise archive would be a sound choice. However, if you have better use for the capital or don’t have much, a scalable cloud email archiving system might better suit your purposes.
To learn more about this subject, please download our whitepaper on compliance archiving: