Changes to the law mean that organisations will be
required to account for all their data and documents in the event
of litigation, says Bill Onwusah
Recent legal changes mean that you may well be developing a
closer than expected relationship with your lawyers. The rule
change means that in the event of litigation, lawyers will need to
delve more deeply into the innards of your organisation in terms of
how data is stored, archived and retrieved so that they can review
the facts of a case.
So what should you do knowing that litigation may well be
heading your way?
Should litigation arise, one of the first things lawyers will
ask is where there is any information stored relating to the
litigation. It is therefore very important that you have quick,
easy access to e-mails, documents and other potentially relevant
data.
One way you can prepare for any future litigation is by
implementing an effective document management system. This will
enable you to manage the basic documents, control versions where
appropriate, control access rights to information, and of course,
enable the documents to be part of your archiving system.
Why is document management so important? It is because
litigation is not just about winning cases. It can also be about
knowing when not to litigate – such as when you have little chance
of winning. The only way you can do this is by being in possession
of all the facts, and for that you need to have all of the relevant
documents.
In the age of electronic disclosure you can be requested to
perform specific searches over your systems. The last thing that
you want is for a search to dig up a long-hidden document that you
had no idea existed, but which may return to haunt you.
Knowing your documents will also mean knowing when and why they
were destroyed. Typically, this will form part of a document
retention/destruction policy.
The growth of data is such that many firms cannot possibly hope
to retain all data that is created and many firms impose strict,
documented policies relating to their destruction.
The policy could take the form of automatically emptying users’
recycle bins after a defined period, or limiting the amount of
e-mail storage per user. It is very important that any policy you
do have in place is unambiguous and enforceable in all
jurisdictions where your firm operates.
Naturally, the bigger the organisation the greater the potential
volume of data involved. In larger, multinational organisations,
national and international data protection acts may complicate the
transfer of information from one ¬jurisdiction to another and how
data can be retained.
Similarly, the outsourcing of technology functions could further
complicate matters, as there may be issues relating to
accessibility and costs of retrieval.
In the event of litigation, most law firms should supply you
with a questionnaire that will prepare you for the task ahead. The
questionnaire is designed to take you through the purely electronic
sources of data that were in existence at the time, through to
management issues such as how passwords and encryption were dealt
with.
Depending on the nature of the case, the questionnaire will
cover the obvious areas such as back-up systems, through to the
searching of temporary files, thumb drives, home PCs and even
websites.
The main thing is not to panic. The point of the questionnaire
is to get you to think about where the relevant data could possibly
be located, not to get you to hand over every single byte.
The questionnaire should allow you to scope the exercise and
determine where the documents are, what they are and possibly most
important of all, how much there is.
Keep the lawyers informed throughout this exercise. They are
trying to work out whether it is proportionate to pursue a
particular line of data collection and excavation. In their eyes
“proportionate” means whether the cost of the gathering and
reviewing exercise is worth it in relation to the value of the
case.
The person responsible for your firm’s systems may well be
called upon to sign an affidavit saying that they have found
everything that there is. It is important that they emphasise to
their teams not to take any decisions that will “help” their
employer’s case.
I am aware of one “helpful” employee, who instead of destroying
old back-up tapes, took them home, where he stored them just so
that he could “help” someone if they were looking for an old
document. All of the supposedly destroyed tapes then became
admissible.
The lesson of this story is if you have a destruction policy,
stick to it. Do not make subjective decisions to “help”.
So what about the future? Think about bringing on board someone
who is legally qualified and can provide a legal perspective on
future technology projects being considered for the
organisation.
Technology investment decisions are primarily based on making
decisions that will deliver the best technological solution to a
problem. However, this solution may set you up with a long-term
legal problem.
In a client-focused business, it may not be good practice to
have one client’s data archived on the same media as another’s. In
the event of litigation, neither client will be happy about handing
over their data because it is all stored on the same media.
One of the most valuable tips to prepare for litigation is to
conduct a role play. Set up an imaginary scenario and work out what
would need to be done to retrieve the relevant data.
The work that you do here is not wasted, as the practices and
procedures that result will help to address any queries that may
arise out of a personal data access request. Centralised document
systems put you back in control.
I am aware of one company that is so well prepared it works on
the assumption that all of its matters will be litigated and
prepares its documentation accordingly. Therefore, when litigation
is impending it can simply drop the relevant data into its
litigation module.
I am not suggesting that you go this far, but by setting up
procedures in advance and being aware of what to expect when
litigation arrives, you can avoid reacting in a hasty and
ultimately expensive way that may harm your case.
Bill Onwusah is the litigation support manager at
international law firm Lovells
Private life of data