Data, Data, Everywhere

Technology is constantly evolving, which means legal obligations and responsibilities to learn, prepare, and adjust are never finished. Legal teams have a responsibility to understand the various sources and types of data potentially subject to litigation or investigation.

2020 marked a seismic shift in the way people communicated, interacted, and collaborated to perform their daily work activities. For the first time, many companies had to rely primarily on collaboration platforms such as Microsoft Teams, Zoom, Slack, and Workplace from Facebook. We observed that companies (understandably) did not prioritize preservation and collection for litigation during the scramble to move operations remotely.

Likewise, they were not prepared to handle mobile device collections without violating social distancing orders or disrupting employees' lives through cumbersome ship-and-wait collection processes. Moreover, clients who invested in remote collection solutions for endpoints (laptops/ desktops) quickly learned the limitations and ineffciencies when devices on home networks were not reachable or the connection proved unreliable.

Moving forward, the lawyers who understand this dilemma, will advise their client to refocus and renew investment in a combination of defensible processes, strategic partnerships with discovery experts, and technologies focused on eliminating the risks associated with the unique challenges of these new data sources. While many things changed in 2020, some constants remain: collaboration platform data will likely be required in future litigation, and a client's collection and preservation processes will be highly scrutinized in the coming years.

Notwithstanding the pandemic, the past few decades have seen the creation, distribution, and use of exponentially increasing volume, variety, and veritable data integrity. Today, most organizations maintain the majority of their business information exclusively in electronic form. This can include emails, text messages, voicemails, video and image files, financial information, sales records, inventory records, accounting records, human resources, payroll, medical records, product research and development, product designs, etc. In many respects, these electronic records have become "the record" by which events and transactions are reconstructed. The defensible method for collecting the data is by deploying a defensible forensics process by a competent certified forensic examiner.

Let's explore what we mean by the term "forensics" in the practice of law and when managing a client's data. The two most common meanings refer to either (a) an evidentiary methodology so that evidence can be used in court; or (b) a digital investigation by taking a complete copy of an entire data source – such as a computer hard drive, thumb drive, phone, or tablet – and then examining it with specific tools and processes. The Electronic Discovery Institute, The Federal Judges' Guide to Discovery, 3rd ed. 2017).

To prepare for this inevitable scrutiny and as a measure of ethical competency, discovery practitioners and attorneys should understand the need to deploy forensics and how their clients are handling the following:

Retention Policies and Practices – Does the client's retention policies account for the influx of mission-critical data being created by collaboration platforms such as Zoom, Microsoft Teams, Slack, WhatsApp, and Google Meet?

Talent, Training, and Testimony – Does the legal team have a trained resource and plan for the defensible preservation and collection of data from their systems? Will the teams collecting and preserving this evidence be able to testify that the processes and procedures used satisfy industry best practices?

Preservation Options – Can the data be preserved in place to prevent data deletion and a later claim of spoliation?

Collection Options – Can collections be targeted using metadata? What does a collection include and exclude (and why)? Reviewability – Is the collected data user-friendly, or does the data require conversion or manipulation to make it human reviewable?

More than ever, in the ever-changing digital world, technology is now integral to the practice of law and legal operation. Understand the changing and shifting nuances of emerging data sources like communication platforms and engage expert partners to validate processes and capabilities. UnitedLex can enable GGI lawyers to mitigate risk, drive effciency, and avoid costly time and sanctions by defensibly helping law firms manage client data sources to effectively retain, collect, and review information in your next investigation or litigation.

Published: GGI Insider, No. 113, May 2021 l Photo: Gorodenkoff - stock.adobe.com