Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2010-03-12 04:04:02Format, images and links may no longer function correctly. The popularity of Sharepoint got me thinking about the overall challenges of conducting eDiscovery on all kinds of dynamic collaboration and social media platforms. The legal community is just coming to grips with the implications of native files and their metadata. I like to think of this as the content vs. context of ESI or the letter vs. the envelope in communications. Parties and courts are still arguing about how to handle, track and present multiple copies of the same item collected from different locations. Now we move that content into a dynamic environment with multiple, simultaneous ‘custodians’ that may contain historical versions, associated commentary, workflow and more. It is any wonder that many corporations have tried to define restrictive acceptable usage policies and implement net filters to limit user access to Facebook, Twitter and more from the enterprise?

This approach failed in the early days of Instant Messaging, PIN-to-PIN and SMS when broker-traders leveraged these technologies for strategic advantages in the late nineties. The early email archives (KVS Enterprise Vault and Legato EmailXtender) had not yet built connectors to ingest these communication forms. That left counsel debating as to whether the old NASD 3010 and 3110 rules applied to these new technologies. It seems obvious in retrospect, but lacking a practical means to comply with a regulation put auditors and counsel in a tough spot. Tell your most profitable division to quit using a critical tool while you look for a compliance mechanism or hope that regulators do not ask awkward questions.

With the renewed focus and clarification of preservation obligations from judge Scheindlin’s recent Pension Committee sanctions, I am not surprised to hear that corporate counsel are starting to worry about relevant ESI found in websites, Sharepoint, wikis, Facebook, Twitter and other collaboration platforms.  Legal hold notices are arriving in user mailboxes and many or most still make the user responsible for preserving ESI. Looking around the web, I found a good example with the Georgia State University policy document. The policy clearly defines (Section III) Electronic Records to include , “SharePoint files, Wiki materials, telephone or meeting logs, contact manager information, Internet usage files, and information stored in PDAs, Blackberry devices, or removable media”. The Section IV. B.  Procedures say, “The notice will inform Affected University Personnel of their obligation to identify and preserve all Evidence that may be relevant to the legal hold.” All of this sounds fine in concept, but do they really expect an English professor to properly preserve web pages, Sharepoint workflow, discussion boards and the like?

User’s can certainly refrain from actively deleting or altering many kinds of ESI, but if counsel has a reasonable expectation that ESI on shared, collaborative systems is relevant, I would posit that it is not realistic to expect users to be responsible for the preservation of that content. Absent specialized (read expensive) collection software or service providers, how can litigation support reasonably preserve such ESI if it is identified by users who have been put on notice? That will be the focus of Part 2, so stay tuned.

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