publication of the International Legal Technology Association
Issue link: https://epubs.iltanet.org/i/518940
ILTA WHITE PAPER: MAY 2015 17 FOUR PRINCIPLES OF RESPONSIBLE E-DISCOVERY DATA MANAGEMENT PRINCIPLE OF DISPOSITION: "An organization shall provide secure and appropriate disposition of information in accordance with its policies and applicable laws, regulations and other binding authorities." In order to properly dispose of data, you must understand where the data are stored. Have documentation for your law firm's data repositories. This will allow you to better manage client data and apply retention policies, proper disposition or suspension of standard policies if a legal hold occurs within the firm. At the point of disposition, determine what materials can be destroyed and what you need to protect the client and your firm. If you return all the client data to the client, do you have enough of a record to defend the firm if a claim occurs? Is there an ongoing insurance coverage or derivative action that must use the same data? Have you made sure there are no litigation holds requiring you to preserve data? Does the client's records retention schedule require that documents be appropriately disposed of at the conclusion of the matter? Make sure everyone on your team knows the correct, defensible ways to destroy data. Inexpensive tools like CD destroyers or hard drive wipers will ensure any physical media that falls into the wrong hands will not be readable. If you're using an outside vendor for hosting or processing, put data disposition into the contract at the outset so you're aware of the costs and can plan for the procedures. One idea some firms have implemented is to move nonessential, transitory copies of images to a network share that is not backed up at all. The minimal risk of losing the data is offset by the ability to quickly delete files without worrying that copies will be created off backups. Don't forget to update your media-tracking inventory to reflect the final disposition of the media: returned to the client, stored with records or destroyed. Litigation Events That Can Trigger IG Discussions: • Receipt of Outside Counsel Guidelines: If you receive billing guidelines or instructions from the client on what vendor to use, ask if the client has also provided guidelines on data storage, encryption and disposition. • Drafting Protective Orders: If you're asked to review document production protocols or see references to confidentiality language on your productions, ask about any data management or destruction language going in a protective order. • Hiring an Outside Vendor: Include language in your RFP and vendor contract to discuss security, encryption and disposition of client data. • Withdrawal from a Matter: If your client has transferred its business to another firm, clean up your data stores. Discuss what your firm must retain and what can be destroyed. With an amicable parting, you might be able to remove all client data, but if the client is unhappy, you may need to preserve more in anticipation of potential client claims. • Settlement: When you hear a matter is settling, speak with the attorneys drafting the settlement agreement about any data destruction language and make sure it's something feasible. Attorneys may not understand that data needs time to cycle off of backups, or that they might be required to pull individual exhibits off of pleadings. • Matter Closure: See if you can get an email notification when a matter your department has billed to closes, and that can prompt your team to review any data holdings. Draft a brief email that lists what you're keeping, for how long, and what you're destroying and ask the attorney to forward it to the client. Calendar follow-ups. If you're required to archive nonrelevant, personal client data — for example, the contents of a Gmail account you had to download, make sure the client is aware. Don't wait until the destruction period is up before you contact the client; see if you can get the client's okay to destroy documents in "X" years when the matter settles or closes. The longer you wait, the harder it can be to get the client's attention.