Corporations are continuously challenged by increasingly complex eDiscovery demands and disjointed processes to meet them. The sheer volume of email generated and stored today can be cumbersome for IT and legal counsel to deal with, and metadata further complicates the process since it is also discoverable and potentially relevant. In the early stages, the location of relevant email data is often unknown -- rendering search difficult. Finally, collecting email is resource intensive and expensive, requiring assistance from on-site forensic consultants in some cases.
IT departments typically provide eDiscovery services only as the need arises. This reactive approach diverts IT administrators from their primary responsibilities and can cause delays in other projects along with increased costs. Further, it exposes the company to undue legal risks as IT may not have the tools or time needed to locate and gather all of the email data required by the eDiscovery request.
The solution is to employ more proactive measures for dealing with email and other data as part of overall information governance and management policies.
Develop a Corporate Strategy for Electronically Stored Information
Information management begins with creating a corporate strategy for electronically stored information (ESI) that effectively meets the requirements of the organization. This need not be complicated: at its simplest, it is defining retention strategies and adhering to them. Keeping your electronic house in order will mitigate risk and expenses should eDiscovery become an issue, from initial creation of ESI through to its final disposition. Effectively managing email and other ESI on an ongoing basis will streamline the early phases of the EDRM in most cases, saving time and reducing costs.
A typical project will begin with data identification, which involves locating potential sources of ESI and determining its breadth and depth. This can be a challenge with email, because it resides today in so many places -- corporate servers, desktops, laptops, tablets and mobile devices, for example, and within all of these the email may be in live files or in archives or PSTs.
Once data is identified, it must be preserved and protected against inappropriate alteration or deletion. Preservation best practices require that users be notified that they have relevant ESI content that must be retained and a copy of all relevant ESI content must be automatically taken and stored in a secure repository, under legal hold. A critical component of this step is having a full audit trail, which allows the preservation stage to be fully defensible.
The collection stage involves gathering ESI for further use in the eDiscovery process (data processing, review, etc.). A simple and efficient collection process allows for email and other data to be found and collected from numerous locations and devices or systems, including Exchange server mailboxes, public folders, calendars and contacts along with PST files stored on client machines or servers, file servers or other storage devices, SharePoint platforms, etc.
A significant drawback to the traditional process of collecting ESI is that the IT department is rarely in a position to determine whether the correct email data is being identified and collected. IT may end up capturing more data than is needed, clogging the discovery process downstream, or repeating identification and collection processes which then holds up downstream discovery activities.
A better option is to allow expert end users, such as litigation managers, legal reviewers and human resources, to search and collect all email data across custodians, by keywords and date ranges, directly. Empowering these experts to explore email data early in the process engages them to interactively search for only the responsive messages and place those in the appropriate, secure litigation repository. The result is a smaller, more targeted data set that can be packaged for formal processing, review and analysis. The benefit is that legal teams can plan their eDiscovery strategy very early in the discovery process, even before ECA, and reduce the overall time and cost of discovery and litigation. This in turn ensures they can meet the tight time frames imposed by regulations like the FRCP.
It is the combination of engaging the right people and employing the right tools and processes in the early stages of the EDRM that will promote efficiency throughout the discovery process. An exacting information management strategy will save time and money and reduce risk. Because email data comprises so much of the discovery process, the right email management solution provides a solid foundation for any comprehensive information management strategy.
Platforms are available today to manage email and data using policy engines that provide very granular control, ensuring information can be managed at any point in the organization. While these platforms can ensure that organizations don't "over-retain" documents -- which will bloat the discovery process -- they also provide advanced search capabilities that can query email -- live or archived -- anywhere in the organization. Businesses that implement such solutions are typically better positioned to respond to eDiscovery requests because they retain only what they need and have access to it when they need it. Managing email data up front drives efficiency into downstream IT discovery processes -- identification, collection, preservation -- and reduces the time, costs and risks of eDiscovery.