Staci Kaliner, Monica McCarroll and Ben Barnes: Modern Attachments: Pointers Are Not the Problem When It Comes to Preservation

Extract from Staci Kaliner, Monica McCarroll and Ben Barnes’s article “Modern Attachments: Pointers Are Not the Problem When It Comes to Preservation”

In this second article of our series addressing discovery challenges associated with pointers, i.e., “modern attachments” in the Microsoft 365 (“M365”) ecosystem, we turn to preservation. When it comes to preservation, pointers are not the problem; they are easy to preserve as part of the sent message.

The problem with preservation pertains to referenced content and whether organizations need to retain “as sent” versions of content referenced in messages with pointers. We explained in our previous article that no family relationship exists between messages with pointers and referenced content; thus, there is no duty to retain “as sent” versions of referenced content (where that is even possible) to ensure those versions are available for preservation at some later date.

We are not suggesting organizations do not have a duty to preserve relevant referenced content where it is stored when a duty to preserve attaches. When a preservation duty arises, organizations should take reasonable and proportional steps to identify and preserve relevant data in their possession, custody, or control, wherever the data may reside at that time. In M365, this means evaluating messaging sources (e.g., email and Teams) and the locations where referenced content may be stored (e.g., SharePoint and OneDrive), and then taking steps to preserve relevant data in these locations, which will include whatever versions are available in the system when the legal hold is set.

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