So you’ve done the hard part already – you’ve identified the data subject to a litigation hold, you’ve placed it under that hold (and enforced it), and used that information for a case. But now, the case is over. So what do you do with all that information?
Where’s The Data?
The first thing is to determine the location of any of the data under the litigation hold. This could mean there’s some at the company, some at the internal counsel’s system, some on the external counsel’s systems. If experts were used, information could still be with them, and the same is true for eDiscovery vendor(s). Many use litigation hold software, and that can be stored in the cloud, so that is an area to research as well. Don’t forget IT vendors, printing vendors, judges, and trial presentation vendors as well.
This brings up the point regarding the opposing side. They could have the data in multiple locations as well, with their experts, their co-counsel, or their eDiscovery vendor. Determining their disposition of the data ensures that all the bases are covered in terms of where data may reside.
Finally, for this step, keep in mind that the size of the hold can matter. If there’s a small document size or scope, it may be a simple process. But large, keep-everything holds can mean pulling in a team to determine where everything may be.
Now What?
So, you’ve found all the locations of the data, now what? There are three good options: leave it in an eDiscovery tool, keep it on active corporate systems, or keep it on corporate legacy systems. If the information is kept in an eDiscovery tool, it’s likely quite accessible but it could mean large monthly gigabyte charges (if that’s the pricing structure of your eDiscovery vendor). However, many vendors will offer “cold case” rates, so it makes sense to ask whether that is available. In fact, cold case may be a good place to put the case even before the case is complete.
Keeping it in active corporate systems could mean taking up space, so that might not be the best option for some but could work for others. But the recommendation is to find a way to organize at least the data for the particular hold. But what kind of format should you keep it in? Keep any work product that belongs to the law firm or anything used as an exhibit or attached that shows competence. But if something didn’t make it’s way to court or a brief, there is no obligation to keep it.
There’s also the question of retention with respect to the regular schedule. In general, it’s recommended to return to the common practice of seven years, but that may vary due to corporate policy, industry, regulatory requirements, and more. You can often consider the time that the information spent under the hold as also being under retention. Note that if copies are created, you only need to keep the originals – copies can be deleted. However, if there are records of how we handle a certain document (i.e., lawyer’s notes, copies of complaints, etc) those are new – they are not considered source data, so they have their own retention period based on whatever part of the schedule they fall under.
Hybrid Approach
But there’s another way to approach this too, and it’s a combination of a few of the items above. It’s how you can use the data for other things going forward. It’s summarized in three words: toss, use, and allow.
“Toss” suggests trashing the documents but keeping the metadata. This is a good idea because it can be useful for learning – and there’s no way to re-create documents from that.
“Use” means to rely on artificial intelligence to help with using the model the next time.
“Allow” is the idea of utilizing the data set for outside counsel (or others) to learn from. The Enron data set is great but also outdated and overused; allowing legal professionals to learn about the eDiscovery and review process with real documents can make project down the line operate much more smoothly.
Digital Trash
There is so much digital information that is never deleted. There is so much created as a byproduct of litigation, and the original documents are still there. But it can be cheaper to store it than go find it is the argument – but there’s so much cost to find it, review it, produce it all over again. Productions, in particular, are an item that can usually be deleted. So it isn’t actually cheaper.
Conclusion
When the litigation hold is over, it’s important to find the data, determine how it’s going to be kept, determine how long it’s going to be kept, and see if there are any other uses for that set.
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Dr. Manes routinely serves as an expert witness including consulting with attorneys on data preservation issues. He contributes academic content to peer-reviewed journals and delivers classroom lectures. See his full CV at gavinmanes.com.
Dr. Manes has published over fifty papers on eDiscovery, digital forensics, and computer security, countless blog posts, and educational presentations to attorneys, executives, professors, law enforcement, and professional groups on topics from eDiscovery to cyber law. He’s briefed the White House, the Department of the Interior, the National Security Council, and the Pentagon on computer security and forensics issues.
At the University, Dr. Manes formed the Tulsa Digital Forensics Center, housing Cyber Crime Units from local, state, and federal law enforcement agencies. He’s a founder of the University of Tulsa’s Institute for Information Security, leading the creation of nationally recognized research efforts in digital forensics and telecommunications security.