June 02, 2009, 5:32 PM — What happens when a company is faced with a lawsuit or a subpoena, and has to produce an enormous amount of documentation in a short period of time? More often than not, those documents are stored electronically, and may be held in old archives off-site. Being able to find and retrieve them quickly is essential.
E-discovery can be a big issue for a large enterprise, and it can be expensive. Planning for it involves both the IT and legal departments, and it requires setting data retention and backup policies and procedures ahead of time, long before the need for e-discovery is realized.
If your backup volumes and archives are searchable, are they ready for e-discovery? Not necessarily. E-discovery is a highly specialized field that transcends the technology itself, and is guided by lawyerly protocols and extra precautions. The collection phase of e-discovery can be quite challenging, and it calls for an e-discovery policy to be created and adhered to ahead of time. The policy includes not only the standard storage and archive protocols, but will include procedures about retention period, and procedures for implementing a “legal hold” on data that might otherwise be deleted.
To clear up a bit of confusion: E-discovery isn’t just ordinary backup and search. Legal counsel may for example, require access to information that isn’t traditionally contained in archives, such as data stored on individual employees’ work PCs in calendar applications, audio files, or even web browser histories. A protocol for accessing, under legal guidance, individual desktops as well as the standard archive and backup volumes must be a part of the e-discovery policy. Meta-data also needs to be preserved about each file, for example, metadata that shows when each file was most recently opened or changed.
And most importantly, just having a distinct e-discovery policy (in addition to your ordinary backup policy) can be a good tool for your legal department, just for the purpose of proving that you are diligent about recording relevant information and following data preservation procedures. Without an actual e-discovery policy in place, the opposing counsel could always argue that evidence is inadequate or incomplete.
