Even at the best of times managing data is challenging for a business and that is without the added strain of litigation. To help guide in-house lawyers through some of the challenges in managing data during litigation, Jonathan Holmes, Partner, Forensic Sciences, PwC moderated a panel on this topic at the In-house Counsel Litigation Conference held on 22 May 2018.
The other panel members were John Lapraik, UK General Counsel, Advanced Discovery, Claire Walter, Head of Dispute Resolution Paris-London, Credit Agricole Corproate and Investment Bank and Karl Obayi, Manager, Digital Forensics & eDiscovery, Rio Tinto Limited. The panel provided insights based on their considerable legal and digital forensic knowledge and experience.
The theme of this panel was the issues in-house legal teams need to consider in preparation for and during the litigation process, including:
- Challenges arising from the sheer volume of electronically stored information (“ESI”)
- Considerations about what materials businesses should retain
- Capturing data retained on obsolete devices, eg old laptops and mobile phones
- Ensuring that in-house lawyers are involved in the data mapping process
- Preservation of metadata during the collection process.
It was interesting to hear that more than 90% of data is created electronically and that 87% will never exist in hard copy format. Further, this data may have been created or stored on a number of different devices, many of which may not be used for a particularly long time. This issue seemed especially relevant when a show of hands indicated that almost all people attending the session had replaced their mobile phone within the past two years. With people continuously updating their hardware, or using their own devices as part of a bring-your-own-device policy, there is a real need to consider how to retain business data.
Given that it is impossible from a practical point of view for businesses to create less data, they need to get to grips with the challenges arising from the increased volume of data and the devices it is stored on.
The panel discussed whether businesses should consider retaining less data than they presently do (subject to complying with all appropriate legal requirements). This would mean that there is less data available for collection. However, it may not always be the best course of action to destroy data as soon as it is appropriate to do so. For example, it might be wise to retain data longer than is legally required to ensure there are documents available for a regulator to determine whether certain activities did or did not take place.
Once litigation is proceeding, in-house legal teams should be involved in identifying where potentially relevant data may be located. There are other considerations to bear in mind including, for example, the costs of recovering data from backup tapes or obsolete legacy systems.
Another consideration is to ensure that the data is collected in such a way as to preserve the underlying metadata. This “data about data” may contain information as important as the data on the face of the document itself. An example was given of a man who ended up in jail after the data recorded on his pacemaker indicated that instead of being asleep at the time of an alleged arson attack on his business, he was, in fact, the person who may have started the fire.
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In-house Counsel Litigation Conference 2018
To see a summary of the sessions with links to all summary write-ups from the conference click here.
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