Data is duplicated. It’s at the core of how networks work. In the simplest of examples, you send an email, a copy is stored in your sent items and another copy is stored in the recipient’s inbox. If you’re both working at the same company, it doesn’t take long for this to compound continuously and bloat your servers with unnecessary copies of the same file over and over again. From an IT perspective, this data is one big massive store that needs to be “managed.” Whether it’s backup for disaster recovery, archiving, subject to a legal hold, etc.
Many corporate clients that find themselves as serial litigants will rely on outside counsel to manage their discovery data. These firms, in turn, rely on technology and professional service providers that specialize in managing electronically-stored information in a number of different capacities. Larger firms have an army of outside vendors they call upon for connected but discreet tasks. Think forensic acquisition, data culling, document hosting and attorney review.
In the last decade it has become a widely accepted practice to have this data sit outside the firm firewall due to volume and turn-around constraints. In order for you to keep track of your own company’s information you should understand the eDiscovery process and how data is created.
Data retention and eDiscovery
Due to the competitive nature of the industry, many eDiscovery providers typically offer a clear and concise picture up front to let you know how your data is going to be handled–and will often provide full transparency into any subcontractors they have vetted. However, it’s important to understand your data and how it’s created throughout the process so you can plan your protocols and retention policies accordingly.
Types of Data Created During the eDiscovery Process
If or when you are ever in doubt, refer to the list of data types below to understand what is created during the eDiscovery process.
- Project tracking data
- All project-related material that corresponds with specific matters and/or work orders. This includes email correspondence, contracts, Chain of Custody forms, etc. and any data that is tied to any project request handled by a subcontractor employee. Primarily, identified as external communication or exchange of specific detail regarding potential, ongoing or completed work.
- Source data
- Raw data originating from an outside entity and submitted to subcontractor for the purpose of processing via media, FTP/SFTP and/or email correspondence. This includes data forensically extracted and/or original data that is provided by a client and accompanied with executed Chain of Custody (COC) documentation.
- Case or production data
- Any data or database derived or as a result of any internal application or network processes. Specifically, any exports, replicated, hosted or outputted data that stems from any service application used or managed by subcontractor.
- Work product (work space) data
- Any data derived or as a result of any internal application or network processes, but used primarily for the purpose of prepping, experimentation, cataloging, preliminary/in-depth analysis and/or investigation.
- Deliverable data
- The copy of data provided to an outside party in the form of digital media or upload.
- Workplace data
- Data identified as internal and external documents related to general business operations. External documents are typified by invoices, payment invoices, tax returns, etc. and are in some format presented to outside entities as needed. Internal documents such as pricing, payment forecasts, sales statistics, employee files, bank statements, etc. are used inside the company’s daily functions.
Other Vital Data Retention Sources
Other data not classified as any of the categories above are usually created by an analyst/user/employee as a bi-product for given task. The purpose of classifying the data types is not only to delineate and organize an internal network, but also to apply different retention policies to each.
- Online Storage
- Subcontractor will retain matter-specific data online (source, case/production, deliverable), housed on a fast storage network server for requested period, and will guarantee immediate access at any given time. There is an associated cost with this option that will be submitted for client approval prior to charges being incurred.
- Near-line Storage
- Subcontractor will retain matter-specific data online (source, case/production, deliverable), on a slower storage network server for requested period, and will guarantee immediate access at any given time. There is an associated cost with this option that will be submitted for client approval prior to charges being incurred.
- Subcontractor will back up the matter-specific data (source, case/production, deliverable) on an off-line storage medium such as Tape or External HDD. Restoration within a timeframe of 24-72 hours would be required in order to access the archived data. There is an associated cost with this option that will be submitted for client approval prior to charges being incurred.
- Subcontractor will completely remove the matter-specific data (source, case/production, deliverable) from network server upon prior notification. Certificate of destruction is available upon request.
- Take the blinders off. Make sure you know where your data is housed and have a full grasp of your exposure.
- Be proactive. Don’t wait for your first eDiscovery nightmare to implement a retention plan. Start by asking your outside providers to supply a copy of their retention plan, and use that to help you create a template of your own.
- Revisit often. The rules governing what information needs to be stored and/or preserved and what information is reasonably within your control not only vary by industry, but are constantly evolving in today’s fast-paced age of information.
- Ask an expert. They’re out there; they’ve been there before. Don’t be afraid to ask for directions.