Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2014-04-01 20:00:00Format, images and links may no longer function correctly.
In the age of Cloud services and agile technologies leapfrogging each other, Electronically Stored Information (ESI) has become increasingly mobile. But what does the Legal department do when IT wants to migrate ESI on hold to the latest and greatest platform? The economic, accessibility and management advantages to Cloud systems such as Office 365 and Google docs have almost every CIO considering or piloting them. Legal should participate in the solution, rather than resisting this wave of change. There are many different strategies for meeting the company’s preservation obligations while migrating or transforming email, files and other ESI on hold.
Identification – Knowing what is potentially relevant
The first challenge is to assess the data source and identify what is under hold, potential impact of migration and the relative risk or consequences of spoliation accusations. Moving email from one archive to another can be a huge undertaking, but the email itself is rarely changed by the process. In contrast, enterprise database systems with embedded files can require massive transformations of the tables and content when transitioning from say PeopleSoft to Oracle based systems. Understand the scope and nature of ESI in the system before you tackle the preservation strategy.
Preservation – How are you going to keep it?
- Back Up – For decades, companies have suspended rotation of their back up tapes as a preservation strategy. It is cheap in the short term and even cost effective in some scenarios, especially with new technology that enables search and selective restoration. However, the strategy can backfire under matters with ongoing or overly broad preservation requirements. If you keep a snapshot of email servers as of this date, it becomes a potential discovery target for every new plaintiff. The cost to retrieve specific ESI from back up tapes is no longer prohibitive thanks to providers like Index Engines and RenewData, but it is not cheap and only applies to standard systems such as file shares, communications and SharePoint.
- Selective Collection – The challenge here is defining the aggregate preservation scope for all your matters. That can be relatively easy for communications and other systems with existing custodial relationships, but a serious challenge for unstructured file shares, social networking and other more esoteric systems. Non-custodial matters such as IP, EEOC or others pose unique scope identification challenges. New analytic technologies with ECA workflow to support relevance criteria definition offer a potential solution, but these are still very new to the market. Your preservation repository may end up being a substantial portion of your entire system. I have seen legal repositories grow well beyond reasonable scope and become discovery fishing pools with a heavy price tag to drain and remediate.
- Validated Migration – Otherwise known as a defensible transformation, migration always carries the risk that it may be challenged. IT needs to move the data, Legal needs a formal process to demonstrate a reasonable belief that there was no systematic loss of content, context or metadata for ESI under hold. If every email, file or database record from the legacy system will be migrated, then there is no identification/scope issue. However, you will need to perform validation testing of the technology and procedures to validate the migration. Beyond the pre-migration testing, Legal should engage with IT to understand the quality control checks and to assess the proper level of documentation. At a minimum, the QC should include pre- and post-migration metrics, record counts, custodial sampling and more. Migrating the ESI eliminates the duplication or retrieval issues. It goes well with a ‘preserve in place’ strategy, even if conservative counsel may shy away from the inherent risk of approving active transformation of ESI under hold.
Documentation – Defending the migration
Strangely enough, I am not actually in favor of the uber-detailed documentation that so frequently afflicts legal staff or IT personnel who have been repeatedly threatened with 20 year prison sentences, ala Ex-BP engineer Kurt Mix scenario. As an former testifying expert (yes, I am done with taking sides and the adversarial arena), I have billed far too many hours playing humpty dumpty with directories overflowing with Excel spreadsheets, emails and log files. What I wanted and needed in these cases was a clean project report that laid out the goals, timeline, procedures, exceptions (there are ALWAYS exceptions), metrics and such. This summary documentation should be created during and just after the migration, not years later when a sharp plaintiff asks why every file has the same DateCreated property.
The bottom line is that in the enterprise world of Big Data that lives increasingly in the Cloud, it is unrealistic to expect ESI to remain static over the typical 2-4 year matter lifecycle. Like Life itself, Big Data will ‘find a way’ despite legal holds and spoliation fears. So I feel it better to embrace that transformation process in light of the new functionality and accessibility that come along with most of the latest systems. Make informed decisions and enable IT to achieve their goals, rather than forcing IT to hide initiatives until it is too late.
Greg Buckles can be reached at Greg@eDJGroupInc.com for offline comment, questions or consulting. His active research topics include mobile device discovery, the discovery impact of the cloud, Microsoft’s 2013 eDiscovery Center and multi-matter discovery. Recent consulting engagements include managing preservation during enterprise migrations, legacy tape eliminations, retention enablement and many more.
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