“When it comes to e-discovery, the proactive approach will always trump the reactive.”
Companies and corporations are starting to realize the incredible benefits and cost-savings of taking a proactive approach to electronic discovery.
Keith continues on to explain the practice of “data mapping” – a necessary exercise for any company that foresees turning over electronic data as part of a civil litigation matter.
The Advisory Committe Note to amended FRCP 26(f) states that when the parties are discussing the issues that they must address in the Rule 26(f) conference, “it may be important for the parties to discuss [their information] systems, and accordingly for counsel to become familiar with those systems before the conference.” (See p. 21 of this PDF)
So what is the best way for counsel to “become familiar” with their clients’ information systems? They don’t teach System Administration 101 in law school (and by the way happy belated SysAdminDay to all you fine folks out there).
As the Identification node of the EDRM project states, a “network diagram” is a good place to start, but that alone is not going to be the most useful for pinpointing where relevant data is hiding. Every IT system administrator is going to have a map of the network and systems that they are responsible for (if even just in their head), but those diagrams will certainly strike fear in the hearts of any lawyer trying to make sense out of them.
While most network diagrams simply show how computers and systems are linked together, Keith states that data maps can only be useful to the legal world if they actually “capture what type of data lives where.”
“For example, the map should show which repositories contain customer information, financial information and information regarding IP. This way in-house counsel can pinpoint data for a case and act fast to institute a legal hold.”
Ralph Losey has a great page on data maps on his e-Discovery Team blog (complete with fear-inducing network diagram examples). He mentions that for a data/computer map to be useful in a legal context:
“… it should include detailed indexes and explanations that provide a complete inventory of an organization’s ESI [electronically stored information]. The map will not only show locations, but provide information as to the types, amounts, and accessibility of ESI, the metadata associations, and the frequency, difficulties and costs associated with restoration of inaccessible ESI such as backup tapes, and the recycling schedules for these tapes.”
Ralph’s suggestions are more easily said than done. It would be great to have all this information handy for the next time you have to respond to a production request. But Keith reports the reality:
“People put off [data mapping] because they have bigger fires nipping at their heels, but it is something you need to do,” says Brad Harris, director at Fios Inc., an e-discovery consultancy. “It is costly and very risky if you don’t. However, it is fairly onerous to take on.”
A workable, effective, and accurate data map for e-discovery purposes takes time to create, and the project must be spearheaded by someone who understands both the technical terms and the legal obligations.
Creating a data map is a team effort, with participants from the legal and IT departments, as well as records management. The RM folks will have a whole other layer of policies and procedures that will play into the accessibilty of a corporation’s electronic data.