As Apple and Samsung battle over design patents, in Apple, Inc. v. Samsung Elecs. Co. Ltd., No. C 11-1846 LHK (PSG) (N.D. Cal. July 25, 2012), it is clear that legal hold and preservation of evidence may be a key factor in the outcome of the case. Once again a high profile case showcases eDiscovery and the importance of proper collection and preservation of evidence. Technology is now in place that can properly place user files and email in a forensically sound archive for safekeeping. One of the key challenges in the Apple Samsung case was that the email server had an auto-delete feature turned on which purged potential email evidence, overriding the legal hold order, according to a schedule defined by the email administrator. Using a legal hold archive, once a policy is defined and implemented all responsive data will automatically be securely copied into the archive regardless of the auto delete configurations on the email server. Relying on an active email server for the preservation of email is risky as this environment is not designed for legal hold. As these high profile cases continue to showcase the eDiscovery and legal hold challenges, it is clear that organizations will begin to focus on their internal litigation support and archiving platforms and define an environment that will ensure accurate and reliable processes
Defensible deletion is focused on legal and how to manage risk and long term liability. The goal is to manage data according to policy, find what no longer has business value or is required by legal and purge it from the network. Many organizations are finding that saving 20 or more years of electronic data on their networks and servers is not a good idea. However defensible deletion should be as interesting a concept for IT as it is for legal. IT is challenged with storage and information management budgets. The money that IT has had at their disposal has decreased and they are under tight scrutiny to make ever dollar count. Defensible deletion is a major cost savings to IT and would allow them to recoup significant budget that can be reallocated to more immediate projects versus unnecessary storage expenses. Industry analysts state that by defensibly deleting user data that no longer has business value or is required for legal hold or regulatory purposes, organizations can recoup anywhere from 40 to 70% of their storage resources. This could easily represent tens of millions of dollars in IT budget, a number any organization would love to have in their pocket.
The benefits of defensible deletion are many. IT should look at this as an opportunity to reclaim budgets and streamline their operations. Legal already sees the benefits. Defensible deletion is a win-win across the organization.
A recent conversation with a client showed how a lack of a solid partnership and relationship with IT is sabotaging their information governance efforts. This client has a multi-year plan to deploy a legal and compliance archive in order to preserve a portion of their data assets. The first phase of the plan is to start cleaning up legacy content and defensibly delete what they don’t need, which they estimate to be over 50% of what is currently stored on their networks.
IT owns the platforms that store the content that legal needs access to and all activity related to this data must be coordinated with the network managers. This process has become a bottleneck to deployment and has delayed the project significantly. Gartner states that “most CLOs, 76%, say that IT department support for the legal department is ad hoc. Only 16% report dedicated IT support”. (Gartner, Chief Legal Officers Need Better Partnerships With IT: Gartner ALM CLO Survey Results, French Caldwell | Debra Logan ,March 2012). Without a strategic relationship between the two organizations, the already fragile connection legal has with IT will cause information governance projects to fail. Since legal owns policy and IT owns the data networks, it is key that these organizations partner and commit to supporting such a strategic project.
The successful projects we have seen are where senior legal and IT resources have a strategic partnership with a joint goal of managing information assets according to policy and controlling risk and liability via deployment of an information governance framework. Without this level of commitment these projects will continue to flounder.
Over the past three months Inside Counsel magazine has covered the topic of defensible deletion. Defensible deletion is a proactive approach towards managing corporate data assets. The days of keeping data forever regardless of business value are long gone. The first email was sent in the early 1970’s and some organizations probably have a copy of this email buried somewhere in their infrastructure. It is time for housecleaning, getting data cleaned up and managing the liability and risk associated with this legacy content. Defensible deletion is the process of proactively managing corporate data, and determining what to keep for legal and business purposes and what can be purged. Data mapping is a key component of a defensible deletion program and is defined as the process to help understand and profile this data in order to determine the disposition of the content.
The following articles appeared in Inside Counsel over the past few months discussing this timely topic. As organizations begin to think through how they can best manage their data assets in today’s legal and regulatory climate, these articles will provide an excellent primer and playbook for a sound information governance strategy.
Inside Counsel Articles:
Technology along with a defensible disposition strategy makes tape remediation a cost effective and viable project, that will pay for itself quickly. Attend this webinar and learn the seven step method for extracting relevant data into an online archive for legal hold and then shred the tapes. See a detailed financial analysis showing the cost an effort required to remediate legacy tapes in order to determine ROI. And learn how Index Engines automated tape access solution can deliver full knowledge of the tape content and give you the ability to extract individual files and emails without the original backup software. Register for this Webinar here
According to Barry Murphy of the eDJ Group 1/3 of organizations have a Defensible Deletion program in place as a key component of their overall Information Governance strategies. Another 1/3 have plans to deploy such a program in the near future. This is a major step from the days of “saving everything” which eventually results in risk and liability. Read full article:
Penalties issued in case where emails were not produced at the request of the judge. The plaintiff could not initially find the emails, but after digging deeper into all ESI sources found the relevant emails on legacy backup tapes. This caused the judge to issue fines and sanctions for failing to preserve emails. Backup tapes have become a key source of relevant ESI and are often the only source of data that has been purged from online sources. Organizations must include backup tapes when implementing legal hold and preservation efforts. Ignoring legacy backup tapes will be the cause for future fines and sanctions. Read Article: http://bit.ly/N8CCKp
Why Implement a Defensible Deletion Strategy – Information Governance Best Practices
A Methodology for Controlling Cost and Managing Risk – WEBINAR
Simply stated, information is either an asset to an organization, or it is a liability. This idea isn’t new. Organizations have been practicing records and information management for years – assessing the value of corporate information against business, legal and regulatory needs and then making conscious retention and disposition decisions.
While these disposition drivers remain paramount, in today’s information-based economy and technology-driven business environment, controlling cost and mitigating risk has become an increasingly complex, and often times daunting task.
This webinar brought to you by Merrill Corporation and Index Engines will show how implementing a defensible deletion strategy not only mitigates long term risks and liabilities related to enterprise data assets, but also saves time and expense in supporting ongoing litigation and eDiscovery efforts.
Register for this webinar> http://bit.ly/KB7iPM
Date: Tue June 26, 2012
Time: 2:00pm EST.
eDiscovery projects are always faced with extremely tight deadlines and complex technical challenges. When a Florida based manufacturing firm had to produce ESI they knew that they had a number of choices in eDiscovery platforms, but didn’t have time to research the best solution for their needs. Collection was to be performed against a 14TB corpus of unstructured user data and time was short. This client decided to bring in two different platforms that both claimed high speed processing and they would deploy the platform that completed the processing of the data first. The race was on.
Important article on the increasing issue of medical/patient data being accessed and/or stolen. Most stolen data is taken because it’s not where it’s supposed to be. Indexing the data on your enterprise, including backup tapes, to identify and classify files is key to finding storage-related security lapses before they occur.
Read this article: http://go.indexengines.com/databreach
More information on how to protect your data before its compromised: http://www.indexengines.com/solutions_BusNeed_DM-DA.html