At this point, you have likely had your fill of posts that talk about the new FRCP amendments to Rules 26(e) on proportionality and 37(e) on the implications of failing to take reasonable steps to preserve ESI.
(For those that may not be familiar, here is a summary of the change: In December 2015, the Federal Rules of Civil Procedure (FRCP) introduced new amendments that state firms must take “reasonable steps” to preserve (all) information needed for real or anticipated litigation. The amendment provides clarity to legal teams who have in the past resorted to a variety of practices to collect and preserve electronically stored information (ESI) during the initial stages of eDiscovery).
Needless to say, the nuances of a few specific phrases and qualifiers in the language of Rule 37(e) will be the subject of intense debate in the bar of the NY Hilton at #LTNY16. What are “reasonable” steps? What if you knew reasonable steps were available but did not utilize them? What will be the response to less onerous consequences for not taking ‘reasonable’ steps? Will companies devote less energy and investment toward their legal hold processes? All intriguing questions.
A more practical question I am stuck on is how can vendors at #LTNY16 help me to meet these new standards? Should the actions I take simply be focused on strengthening internal protocols, training, and detail of audit trails?
We believe that you should expect more from the technology and service providers on display at #LTNY16. Focusing only on the vendors that engage after the preservation obligation is triggered (a separate discussion should be had with those that focus on pre-trigger, information governance activities), it is fair to ask:
- How can you help in mapping custodians to data sources? Be clear, the days of email as the primary communication tool used by employees are numbered. Mapping custodians to the dynamic variety of ways they conduct business can be difficult – if attempting to figure out after the fact. Vendors should help you to be prepared in understanding where ESI may reside beyond email.
- What methods are used to collect emerging data types, such as social media, IM, and mobile content? If custodians are sanctioned to use non-email channels to conduct business, then legal teams and their vendors should have a plan on how potentially relevant data will be discovered and collected – before those tools are allowed to be used. With social media in particular, the challenge of proofing authenticity of techniques such as screen scrapping are already causing legal team headaches.
- Once collected, how is data being preserved? The FRCP change should lead legal teams to ask themselves “what options are available beyond simply automating hold notifications to manage preservation risk?” Regardless of who carries the responsibility to preserve data (beyond the high risk option of relying solely on the custodian), firms should place greater emphasis on how information is preserved. Examining the data storage capabilities of litigation service vendors should be a key #LTNY16 activity to assess the security, accessibility, privacy, and availability of data that requires preservation.
- Once preserved, what is the method used to transfer the preserved data to review? Moving data from preservation to review can be simple if using automated methods such as standards-based transfer that supports the EDRM-XML protocol and secure file transfer – or complex, time consuming and risky if relying on manual methods. LTNY16 attendees would be wise to heighten due diligence on this topic as well.
How Actiance Can Help
Actiance’s On-Demand Preservation capability leverages a modern, tamper-proof cloud-based data store that legal teams can utilize by uploading content from more than 70 communication and social channels to automatically place under legal hold – whenever required for eDiscovery. ESI is then immediately available for legal teams to conduct searches, filter unneeded content, and export data for downstream legal review. With built-in, easy-to-use eDiscovery features, legal teams can easily manage collection and preservation tasks without relying on IT. Benefits include:
- A fully automated hold process to reduce collection risk: With the ability to automatically place items on hold, customers can eliminate time-consuming collection tasks and reduce legal risk. Alcatraz provides an easy-to-use interface to automate the upload of files from email, databases, and end user documents such as Microsoft Word and PowerPoint.
- A tamper-proof WORM-compliant repository for secure archiving: Actiance provides a secure environment built with high-availability and fault-tolerant infrastructure, eliminating the risk of data spoliation. Alcatraz has been certified as providing durable and immutable data archive to meet rigorous regulatory storage requirements of SEC Rule 17a-4(f), CFTC Rule 1.31(b), as well as other regulations.
- Fast search and filtering to improve efficiency: Unlike manual methods of collection and preservation that often require days or weeks to process, Alcatraz provides a sub-second Google-like search experience, giving immediate access to data under hold. Granular search features reduce data volume and improve reviewer efficiency.
With Actiance’ s On-Demand Preservation capability, legal departments are now able to effectively manage eDiscovery requirements, while mitigating risks that may arise during the critical collection and preservation steps.
Check out Actiance and get more information on the On-Demand Preservation solution at LegalTech in New York City this week at booth #2006.
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