Complex and costly lawsuits used to exclusively burden companies subject to product litigation or ongoing scrutiny by financial regulators. For such businesses, e-Discovery has long been a commonplace task, generally involving the purchase of expensive, purpose-built e-Discovery platforms. IT has traditionally devoted a significant amount of time to scouring networks, servers and computers to produce the necessary files.
Today, more and more data—structured and unstructured—is generated by a growing myriad of devices. With such a high volume of information flying across the network, and much of it coming from the edge of the network (think remote employees on mobile devices), the e-Discovery process has become increasingly taxing. At the same time, there is an evolving set of regulatory requirements that have made legal activity far more common in companies than it was even a decade ago. Correspondingly, the e-Discovery market is growing to meet the demand for software and service—Gartner projects that the market will grow 75 percent by 2017 to $2.9 billion.
While IT innovations like cloud computing and virtualization have undoubtedly enabled great gains in productivity for employees, they have also turned the e-Discovery field upside down. It’s not an exaggeration to say that for many businesses, more work is now done on mobile devices than is done at the desk in the office, due largely to enterprises embracing Bring Your Own Device (BYOD) policies and applications to accommodate employees working remotely or on-the-go. According to a recent Forrester study, more than 75 percent of employees use smartphones to access corporate data, and more than half use their own personal devices to do so. As more employees are working from anywhere on laptops, smartphones and tablets, unstructured endpoint data—or, data on the edge—is growing exponentially in the enterprise. Odds are, your organization struggles with e-Discovery as locating and collecting mission-critical data on endpoints becomes more challenging.
The problem is that these endpoints—where employees do most of their work—often are not connected to network servers, so files that companies are expected to produce during e-Discovery don’t live where IT administrators can access them. Businesses that expect employees to back up data to a server frequently are missing the mark, as employees generally do not adhere to these data management policies. Plus, placing the onus on end users leaves enterprise data at risk when—not if—devices are lost or stolen, or software crashes. And the cost of data loss to an organization goes far beyond that of the lost device. Due to downtime, support and management time, the loss of a single laptop exceeds an average of $49,000.
Since most organizations know that not all data sits on central servers, many IT departments still go through a laborious manual e-Discovery process that goes something like this:
- A lawsuit is filed
- IT receives a request from legal to produce documents required for e-Discovery
- IT tries to figure out where data resides across networks and endpoints, and who owns or manages the data so they can begin collecting the relevant data
Some companies use e-Discovery software to streamline the process, but these tools—often selected by legal departments rather than IT—are costly with limited return on investment, particularly because they can only be used for one purpose. Plus, the process is entirely reactive and still manual, cannibalizing IT’s time and resources. In fact, some organizations have one or two full-time employees solely dedicated to e-Discovery.
The traditional approach to e-Discovery outlined above also introduces unnecessary legal risk to the enterprise. The “chain of custody” for data collection, which validates that data was collected properly, is very difficult to document manually. If IT does not properly record where data came from and who was managing the data when it was collected, the chain of custody can be called into question during litigation, compromising the admissibility of evidence, and potentially the entire case.
Automating the e-Discovery processincluding endpoints
Addressing the unnecessary time, cost and legal risk associated with manual e-Discovery begins with capturing data where it is created and accessed—on endpoints (laptops and desktops). An information management plan that includes continuous, automated backup of all endpoint data is the foundation of automating e-Discovery processes—that were previously been painful and time-consuming. Automated e-Discovery anchored by endpoint backup simplifies three key stages of the e-Discovery process:
Identification: When a lawsuit is filed, determining where relevant data resides and which custodians own the data is known as the identification stage of the e-Discovery process, and is often the most challenging. If IT already has a copy of all data via endpoint backup, the identification stage is greatly simplified. IT saves time deciding where to look and mitigates risk of potentially missing relevant files, since all of the potentially necessary data has already been captured in place where it is created, rather than relying on incomplete information manually (and occasionally) saved on company servers. At this stage, IT admins can quickly search for and find information using metadata markers such as date and time. When considering how to back up files at the endpoint level, it’s important to consider options that do not set limits on files sizes or types, as well as frequency of the backup, so you won’t miss out on collecting relevant files during the e-Discovery process. It’s also important to choose a solution that is OS agnostic—accommodating Mac OS X, Windows, Linux, etc.
Collection: Automating e-Discovery at the collection stage means grouping custodians—or owners—of data according to policies for specific legal holds, and then applying these rules to groups of employees. This is much more efficient than determining on a case-by-case basis which data can be collected from each employee. Since IT already has a copy of all files, there’s no need to interrupt employees’ workflow to collect data. IT can gather data non-invasively and remotely, allowing employees to remain productive as a company is responding to a lawsuit.
Preservation: With endpoint backup supporting the e-Discovery process, IT can set up what’s known as preserve-in-place legal holds, which allows for unlimited retention of files and restoration of deleted files for the duration of a legal hold. Preserve-in-place prevents users from deleting or corrupting files. In addition, these preserve-in-place legal holds are more efficient because data is automatically preserved remotely and is only collected and restored for processing if the legal team is unable to resolve the litigation during the e-Discovery period.
The inevitability that all companies will face prosecution in today’s litigious environment is reason enough to consider automating e-Discovery. Courts are not proving sympathetic to those claiming that e-Discovery is too time-consuming or expensive—in fact, they are assuming that information that is not fully or properly presented must reflect poorly on the business, negatively impacting the ruling.
Incorporating endpoint backup into your company’s e-Discovery strategy can automate and simplify e-Discovery and legal hold processes. Software solutions designed exclusively for e-Discovery are costly, particularly because they are limited to one task, whereas using a backup solution allows companies to extend the value of an application, thus increasing the return on investment. Most importantly, however, is mitigating legal risk confronting your company when a lawsuit is filed. With many legal proceedings settled before anyone sees the inside of a courtroom, it makes sense for CIOs and legal counsel to streamline the e-Discovery process and consider how they can use existing infrastructure to improve compliance, while saving time and costs associated with a traditional, manual approach to e-Discovery.
Charles Green is a systems engineer at Code42 Software Inc., a data governance platform provider.
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