CIO’s see the SharePoint migration bulldozer as a long promised solution to their corporate digital landfills, the network shares full of legacy files. What about legal’s obligations to preserve ESI currently under legal hold? IT wants a lean and mean managed repository of IP assets that contains only active ESI and records. Where does that leave all the unclaimed content without an owner to move it to their departmental or MySite? Most corporations have never ‘cleaned house’ for a wide variety of reasons and there are good arguments that inside counsel could reasonably rely on custodians to preserve this legacy content as long as there was no systematic purging or expiry. I now have this image of the lone corporate attorney standing in front of the SharePoint migration bulldozers like a poor imitation of the Tianamen Square “Tank Man”. Be prepared for this initiative so that it does not roll over your legal holds.
So why this sudden push to move to a content management system? SharePoint 2010 finally introduced single instance storage, workflow, content controls and a host of new functionality that ‘could’ scale to meet the challenge, whether behind the firewall or in the cloud with Office365. We saw the first signs of market penetration in 2011 when SharePoint began appearing as a competitor in our corporate client’s archiving RFPs. Microsoft initially pitched their new eDiscovery search and hold features for Exchange and SharePoint 2010 hard until customers started asking difficult questions and poking about under the hood. These features were not yet ready for real discovery demands, so partner products such as Gimmalsoft, AvePoint, Exterro, HP-Autonomy and more supplemented search, preservation and collection functionality. As usual, Microsoft has let others take the innovation risks and steadily incorporates those features after they have gained market acceptance. We will be testing the new unified eDiscovery search for the 2013 beta release.
For new ESI created within SharePoint, the only challenge will be making sure that you have the ability to identify, hold and collect. For your content on file shares that is already under legal hold, you face an entirely different challenge, identifying potentially relevant content by custodianship or content. Determining ownership of departmental legacy file shares is notoriously difficult because of how easily metadata is changed through normal IT and user actions. This is exactly why FRCP Rule 37(e) was written to give some relief from inadvertent spoliation of metadata. The problem is that a SharePoint migration is not a ‘routine, good-faith operation of an electronic information system” such as an anti-virus or archiving system that may change last accessed dates on files. Custodial identification of ESI on hold may be practical for some or even the majority of your active legal holds. You will need to document your reasonable efforts to inform, support and quality check compliance in the event that your process is challenged. You need to anticipate opposing counsel’s natural skepticism when you disclose this ‘corporate clean up’.
For non-custodial ESI from terminated employees, legacy departments or system generated ESI, you will need to assess the relative scale, proportion and potential relevance to make an informed cost-risk decision. There is no one ‘right’ answer in the face of patent, class action, EEOC or other discovery that likely escapes custodial containment. Enterprise search and analytics players such as Recommind, HP-Autonomy, StoredIQ and more will only fit if your matters lend themselves to defined criteria facets. Corporations without a heavy litigation profile are unlikely to have invested in a defensible ECA process to define selective preservation scope prior to actual discovery requests. Do not underestimate the challenge of developing selective relevancy criteria across some of all of your matters. If you only have a handful of non-custodial matters, then you may be able to work with outside counsel and even a third party search expert to reach a high level of confidence that you have cast your preservation net widely enough. I would always feel more comfortable with some kind of inaccessible restoration option; however that may open the door to even bigger discovery bills down the road if you lose the accessibility argument. I am not trying to discourage you from tackling the preservation effort, just being honest about the complexity. Migrations are change. Change can and will be interpreted as spoliation by a hostile party. Metrics, sampling, metadata snapshots, third party audits and more can show the bench that you thought through the issues, created a mature process and documented your efforts.
So when do I tell the other side? I have moderated several lively panels on disclosure of preservation/discovery details. Enough of these that I am happy to throw this back at your counsel for a case-by-case decision. Having sat in the hot seat for some ugly criminal and regulatory investigations, I will venture that I would not be comfortable proceeding with an active preservation collection without getting sign off from investigators. There are strategic advantages and pitfalls to asking an opposing party to buy into your plan. It pains me to fall back to the classic consultant answer, but ‘it depends’. My best recommendation is to group your matters by type, liability, jurisdiction, relevance profile and risk factors. Look at what level of cost/effort is appropriate for each group and take it up the ladder if you cannot get a consensus on the best preservation option.
The days of unstructured, open network storage are numbered. Unfortunately, the days of unstructured, open cloud storage are just beginning. I hope that the digital landfills of yesterday are a painful enough lesson to prevent corporations from just transferring them into the cloud. I recently spoke with an IT director of a two year old internet startup exclusively using Gmail, Google Docs and other cloud systems. Without traditional mailbox limits or storage considerations, their average custodian now has roughly 100 GB of email. Are we really doomed to repeat the mistakes of journaled email archiving after the 2000 financial crisis? I hope not. Corporate legal needs awareness of the IT road map and has to educate IT on our unique requirements if we want a seat at the decision table. Be aware of this trend to migrate file shares to SharePoint and get ahead of your IT bulldozer, not underneath it.