Internal retention battles are a good way to torpedo even the most defensible position in litigation. Preparing a cross functional team for working together at the start of a matter will pay dividends – both figuratively and literally – later in the case. As has been previously discussed here, “the beginning” is rarely where these teams are pulled together. The key to success is to determine an appropriate path no matter what stage of the matter you’re pulled in at. Taking inventory of your data and thinking about current and future retention possibilities helps to provide a framework for future decision making.
Some people may wonder why we haven’t started our discussion with “information management” or “identification” of data, since those are the first two buckets in the usual discovery model. That’s because we’ve promised the pragmatic, thousand foot view in this column. Information management is something that organizations do with varying degrees of success. In our experience, improvements in information management usually come after a painful litigation event, rather than before. A personal quibble with the existing discovery model is that identification of data is considered to be a separate step that has happened prior to preservation taking place. In our practice, we find that lawyers work from the same basic premise as doctors: “First do no harm”, hence the order to “keep everything” with the intention of figuring out later what is really necessary. In practice, preservation happens first, followed by identification and then collection.
The natural response from the legal team to a matter being filed will be to ask IT “Can you keep everything?”. The natural response from the IT team is “Why?”. The automatic response that question draws from the legal team is unprintable in this Journal. With just three statements, we’ve already managed to drive a wedge between the two groups that are arguably the most important to a successful outcome in any litigation event.
Many years ago, IT systems tended to be single silo monoliths running on mainframes, also known as “Big Iron”. It wasn’t unusual to have a single payroll or accounts payable system that handled all the relevant data and data retention was relatively simple. As systems became more distributed and evolved they became “enterprise” systems with tentacles that reach out into many different areas within the company. Data retention today is never a straightforward or easy proposition.
The really annoying thing for lawyers about questions from IT people is that they’re not always irrelevant in the legal arena. Lawyers will prepare for hours to be able to speak knowledgably in front of other lawyers, judges or juries. Rarely, however, do they do any preparation for discussions with their own support teams, which is a shame. A legal team has to ask themselves a few questions even prior to talking to IT about data preservation in order to have productive conversations. These questions include:
- It is a law school staple, but here in the real world have we actually mapped out the claims and defenses in this case? The retention of data is viewed in terms of whether it is relevant to a claim or defense relied upon in the case.
- Have we given any thought to types of data that we from prior experience want to declare as reasonably accessible versus inaccessible?
- Can we ask for data with specificity or are we going to ask for “all sales data”?
- Do we need more information about the internal systems prior to deciding what data may be in or out?
The legal team isn’t the only one that needs to do their homework. All organizations have a litigation portfolio and it should be looked upon as another business need that IT needs to prepare for. Especially after they have participated in at least one matter – large or small – IT should realize that they need to be prepared to actively participate in the defense process. There are some internal questions that they need to ask as well so that they can do what they do best: be of assistance when a user in need comes calling. Some of those questions may include:
- Do we know all of our applications, who owns them and what hardware they reside on?
- Is our data storage pooled or siloed? Are the backups of the data comingled or are they by hardware rack? Can we segregate only by hardware or can we segregate by application?
- Can we leverage any of our IT Systems Management documentation to provide an overview to non-IT people to explain how our systems are set up?
- If we’re asked to retain data indefinitely, what operational or business issues could that create?
The biggest initial issue that we see with Legal and IT teams is that they are both reactive towards litigation events. Both teams wait for an event to happen before deciding how they want to respond. In recent years, legal departments have become more comfortable with the idea that litigation is a repeatable process that they can prepare for in advance. IT teams, however, have been a little slower to realize that litigation support is just another workflow or operations management system that they need to feed with inputs and outputs.
It is an unfortunate fact that in most organizations the two key players in litigation response prepare for battle with each other, rather than focusing on the common enemy. THINKING purposefully about how to collaborate and being prepared to do so go a long way towards leading to a successful result.
Once you have thought about basic needs, you can start working out a path towards meeting those needs. More about that next time….