[author: Michele C.S. Lange*]

To collect or not to collect. That is the question.

In discovery, parties must be proportional with what they preserve and collect – avoiding over-collection of information that is not needed, but at the same time not missing something and risking spoliation.

An organization’s legal hold tools and processes are critical to strike this appropriate balance. Moreover, the technology in this area is quickly advancing, changing the preservation lifecycle in many organizations. In-place preservation platforms are an example of one such emerging option.

ACEDS recently hosted a webcast discussing what in-place preservation is and how legal teams are leveraging this type of technology to ensure defensible and efficient discovery collections. Webinar panelists included Mike Hamilton, Director of eDiscovery Programs at Exterro; Bobbi Basile, Managing Director at HBR Consulting; and Chris Sitter, Information Security Director of Forensic Technology at Juniper Networks.

When Preservation Goes Wrong
The webinar kicked off with panelists explaining what happens when preservation fails. Sitter enlightened listeners on the three most common causes of spoliation: not knowing where data is located, not considering automated deletion, and not acting fast enough. Sitter noted, “If you can do a rapid preservation, it often shows a good faith effort to meet discovery obligations.”

Basile reiterated the problem of uncontemplated data types, explaining that even though email and file share data make up the majority of most discovery collections, the obscure locations sometimes cause the most difficulties. The most tricky locations: data created under a “bring your own device” (BYOD) policy, audio recordings, and data in third party platforms. Basile commented, “These are areas where parties are simply not even thinking about preservation.”

To close the topic, moderator Hamilton conducted an audience poll on this topic asking, “Which way are you most afraid of spoliation?” The poll results did not surprise Sitter and Basile, with a majority of webinar attendees revealing that the most alarming spoliation scenario is when a custodian deletes or modifies data.

Pathways to Productive Preservation
Understandably, deskside spoliation is a top concern for IT and Legal teams charged with locking down data sources for litigation, regulatory matters, or internal investigations. However, most organizations do not have a seamless mechanism for making this happen. Effective legal hold processes involve technology that does not interfere with day-to-day business activities, a robust notification system to employees, and an administration process that controls each step.

Hamilton asked a second poll of audience members, “How do you preserve data for eDiscovery purposes at your organization?” Data collection was chosen by about forty-four percent of audience members, and self-preservation was chosen by approximately forty-two percent. Fourteen percent of attendees said that they suspend the data retention policies at their organizations in order to preserve data for eDiscovery.

Basile stated that these results, like the last poll, were not surprising. Many legal professionals are not familiar with the latest legal hold tools, such as in-place preservation technologies. There is also some confusion over the term, “in-place preservation” and what it actually means.

Understanding In-Place Preservation
Sitter explained that in-place preservation uses an automated script to retain data in place, such that the automated system takes the original documents and places them into a central store that does not allow modification in any way, including not changing metadata. The in-place preservation system permits the custodian to keep working on a copy of the document, providing for a seamless preservation and collection method for discovery. In addition, in-place preservation technology can be used for compliance or tax purposes as well.

“This is the way of the future; locking down a file in-place without actually collecting the file,” expounded Basile. “We are at a tipping point where organizations are closely looking at new ways such as this to manage collection and preservation obligations and really move the needle on discovery costs.”

However, because in-place preservation is so easy to implement, there is a risk of casting too wide of a net. Sitter cautioned, “Because it is so easy, you have to be careful to not over-preserve. Also, you cannot forget to release the holds once they are set up.” Further, in setting up holds, legal teams need to still analyze whether the information is relevant and proportional to the matter. Another risk is preserving private or confidential data. Sitter explained a method of harmonizing the in-place preservation tool with an anonymization technology that can support the “right to be forgotten” required by General Data Protection Regulation (GDPR) or other privacy statutes.

In the end, panelists encouraged audience members to start researching the various platforms and learn their capabilities. Understand the types of data in your environment and look for tools that can support the in-place preservation of this data. Sitter cautioned, “Don’t make any assumptions. For example, most people think it’s impossible to do in-place preservation on a database, but there are systems that can do this.”

A recording of the webinar is available for ACEDS members at aceds.org.  

Michele C.S. Lange is a freelance writer and attorney based in Minneapolis, MN.  She has more than 15 years of experience in the legal technology industry and can be reached at mcs222@yahoo.com. Analysis by Michele Lange for ACEDS at www.aceds.org.