In the eDiscovery world, we talk a lot about understanding the rules as it pertains to putting a Legal Hold on data, collecting that data, and proportionality. One of the reasons costs have been continuously increasing is because data volumes are increasing. Words like petabyte, yottabyte, and zettabyte are no longer sci-fi words, but very real ways in which we define data. Consequently, controlling, maintaining, securing, searching and governing data is so critical that I would opine the ability to have more control over governing enterprise information is paramount to getting through a matter involving eDiscovery.
As a direct result of how fast technology is evolving, we create more places for our data (and therefore our personally identifiable information (PII) such as our names, e-mail addresses, phone numbers, and potentially credit cards) to reside. We love to use apps that allows us to work and collaborate across all of our devices. For instance, we can draft a Motion for Summar Judgment in O365, Google Drive, or Dropbox. We can then store our attorney work product, case law, and memoranda in Evernote or Quip. Then we can project plan the motion and the matter in Todoist, Wunderlist, Asana, Trello, or Airtable. Finally, we can talk about the motion, opposing counsel, the client and the nudge in Teams, Slack, Hangouts, WhatsApp or SMS. Our data is literally everywhere.
What we type in these apps on our laptops, tablet, and phones becomes “an information governance firestorm”. Why? Because suddenly, our documents, the thinking about that document, our planning about a document, and chatting about our document is all subject to potential investigations and litigation. What’s worse, many IT professionals don’t often know what apps employees are putting on their devices in which they are storing corporate data.
Yet, with all the dreary warnings of corporate data getting leaked out into the universe, corporation are not doing what should be done to protect their castle. However, here are two ways in which law firms and corporations can govern its information better, which will ultimately reduce costs in a very real and impactful way.
1. Create policies and tools to enforce compliance
As Benjamin Franklin said, “an ounce of prevention is worth a pound of cure”. Having the right policies in place to govern your corporation’s most precious resource will reduce costs and the risk of being breached. Put simply, policies need to be created, maintained, updated, and of course enforced to ensure compliance.
While there is a great deal of heavy lifting and work that must go into creating, maintaining, and enforcing these policies, the work allows the organization to make the appropriate responses when something does go wrong (notice I said when and not if). Nearly every security incident has been a direct result of human error. Either an employee clicks on a link or opens an attachment in a phishing e-mail that leads to a hacker being able to breach the corporate firewall and demand a ransom in Bitcoin to get the data back (I worked with clients where this has happened); or an employee walks away from her desk and her computer isn’t locked and has her passwords on sticky notes (it has happened); or an employee keeps a secure badged door open with a door jam (I’ve seen it myself).
I recommend that at a minimum, the following polices be created:
- BYOD policies
- Change control
- Change management
- Clean desk
- Data retention and destruction
- Employee exit policies
- Incident Response Plan
- Password creation and change
- Privacy policies
- Social media
Typically, at either a corporation or a law firms, the creation of the same would come from a Chief Information Officer, Chief Data Officer, or a Chief Information Security Officer. The task will likely be done in conjunction with the General Counsel or another senior lawyer. At a smaller company or law firm, the role be be delegated to an IT Director and senior lawyers. The policies have to be socialized to everyone within the organization and then enforced.
Once the policies are setup, it is equally important to ensure that they are reviewed to ensure compliance with changes to State and/or Federal regulations. Additionally, deploying internal training to continuously remind employees of the above policies and executing random phishing tests, tabletop exercises, as well as penetration testing are all critical activities that should be in place within every organization. Leveraging outside IT service providers are generally a good idea for organizations that may not be able to create, implement, and execute on their own.
A corporate breach can be disastrous both monetarily because of lawsuits and later with remediation efforts, and loss of corporate reputation. In fact, companies have been shut down as a result of a cyber breach. Creating and enforcing the policies noted above will allow for reduced costs and headaches in the future. Cyber breaches hit every since vertical and every single sized organization.
2. Map your corporate data!
Chances are very good if you wanted to take a road trip from Portland, Maine to Portland, Oregon, you would not do it without using your GPS. Why? Because you want to know where you’re going, how you’re going to get there, and what signs to look for on your journey. The same should apply as well to your corporate data. I can’t emphasize this point enough. You cannot govern what you don’t know exists. The definition of a data map is the “process of creating a comprehensive and accurate inventory of a company’s information assets”. In order to defend the castle, you need to know:
- Who has the data; i.e., every employee (custodian of data) across every business unit;
- What type of files are they creating; i.e., Office files, e-mail, PDFs, AutoCAD, chat messages, text messages, etc.;
- Where are the files being stored; i.e., their hard drives, corporate servers, thumb drives, external drives, home computers; company sanctioned cloud storage such as O365, non-sanctioned cloud storage such as Dropbox, Google Drive, Evernote; messaging apps such as Slack, Skype, Teams, Jive; text messaging apps such as iMessage, SMS, or WhatsApp; what types of devices the data is stored on such as phones, tablets, laptops, or desktops (as well as whether the devices are company issued or not); and even whether it is on a Mac or a PC;
- Why is data being stored on devices not permitted per company policy (see above!); and
- How is data being transferred from the company’s four walls to a non-sanctioned device.
It happens to big box retail stores, real estate companies, financial firms, health insurance companies, mega-entertainment companies, online dating services, and … yes … even law firms! As Jim Lewis Center for Strategic and International Studies, Senior Fellow once said that “The dark secret is there is no such thing as a secure unclassified network … if there’s something of interest, you should assume you’ve been penetrated.” I have always recommended to clients that whatever they budget for cyber security, add another 1% just to stay ahead of the curve. Not only will your data be protected, but it will most likely protect your organization from a negligence claim.
It goes without saying that governing corporate data is beyond critical. Creating guidelines and parameters around an organization’s most prized possession – data – is paramount. Having an enterprise mindset to manage data appropriately unlocks the potential to have real control over the data. Creating, maintaining, and ensuring compliance with organizational policies as it pertains to data; creating and updating organization data maps give companies a real fighting chance at stopping cyber-attacks. Should litigation ensue, the hard work done upstream will allow for a reduction in costs in finding the right custodians to send out a Legal Hold, where those custodians are storing their data when it comes time to collect and preserve that data, and of course the overall costs in processing and hosting data for litigation.