Customers that are careless when it comes to managing data might not realize that their bad habits could lead to big problems -- and big fines. Solution providers with e-discovery knowledge and skills can come to the rescue with tools and strategies that can keep customers on the right side of the law.
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Since the U.S. Supreme Court made changes to the Federal Rules of Civil Procedure in 2006, organizations must be able to access and produce records and documentation for court cases quickly or face stiff penalties. E-discovery -- also called electronic discovery -- refers to any process in which electronic data is sought, located, secured and searched with the intent of using it as evidence in a civil or criminal court case.
Electronic data can include anything from email and Word documents to instant messaging chats and SharePoint posts. “Everything that exists is discoverable,” said Debra Logan, analyst for Gartner Inc., a market researcher based in Stamford, Conn. Gartner predicts that by the end of 2013 half of all companies will have been asked to produce material from social media websites for e-discovery.
To keep pace with changing legal requirements, the rapidly growing e-discovery software marketplace offers customers many options but little guidance. The Gartner report E-discovery Market, 2011: Drivers, Inhibitors and Influencers describes the range of tools now available from niche players as well as IT giants that is flooding the e-discovery market. VARs that develop an expertise in e-discovery work with customers to sort through the glut of products and build customized solutions that meet legal requirements.
E-discovery Tool Selection
When researching e-discovery products, a good place to start is The Electronic Discovery Reference Model. Considered the de facto reference for e-discovery software products and services, the model outlines the steps in the e-discovery process and the considerations for what data archiving and e-discovery tools need to provide. It includes
- Identification. The identification and certification of electronically stored information (ESI) sources relevant to discovery requests.
- Preservation and collection. What ESI needs to be preserved and for how long.
- Processing, review and analysis. Determining which data must be produced for opposing counsel according to the specific laws, rules, guidelines and precedents pertaining to the case.
- Production. The extraction and preparation of relevant data.
- Presentation. The display of ESI in a suitable format for court.
Another useful tool for evaluating the relative strengths and weaknesses of software based on customer feedback is Gartner’s Magic Quadrant for Enterprise Information Archiving, which also looks at the whole software solution and its approaches for problem solving. The Gartner Magic Quadrant for E-discovery Software is another valuable resource for companies that are faced with producing ESI for litigation.
Price can sometimes be an issue when the legal department is suggesting a high-priced solution, and the IT department holds the purse strings. Although price is important, one message should be clear, said Kevin Beaver, principal information security consultant at Principle Logic LLC, based in Acworth, Ga. The software investment might be expensive, but paying hefty penalties for noncompliance can cost even more. The software may be the difference between a winning case and a losing one.
Solution providers that specialize in this area may bring a lawyer on staff to act as an adviser to their clients in e-discovery matters, helping them to understand what they need to do in order to meet the regulatory requirements, Logan said.
Data Storage Best Practices
IT professionals know that the amount of data generated each day by businesses is staggering. Some files can be found on the server shares and Exchange public folders, but that’s just a fraction of what’s available. “From what I’m seeing, most organizations haven’t thought about at least 50% of the other data,” Beaver said.
To get to the root of the problem, Beaver said that VARs and systems integrators need to start asking their customers some tough questions: “Have you thought about managing data? Have you thought about where it’s stored? Do you think that if you got called up on a lawsuit that you could pull it out without looking like an amateur?”
Most of all, customers need to know that e-discovery is a business issue, not an IT issue. So it’s important to assemble all the people in an organization that have the right visibility, Beaver said.
“Channel partners and integrators can help in a management consulting role,” Beaver said. “It’s not just legal or IT—it’s HR, marketing, operations, corporate security, etc. You’ve got to make sure that all of the right players are making the right decisions together,” he said.
Cloud Computing Adds Complexity
Solution providers can be the data management experts for consumer devices such as smartphones and tablets that are making their way into the workplace. Data on these devices is still owned by companies and may be subpoenaed in court cases. With this in mind, companies should seriously consider updating data management policies and HR policies along with implementing settings and controls to keep data secure.
Data such as email or files stored in places like Google Docs or Dropbox can be owned by companies but does not reside on corporate servers. Because this type of data can also be subpoenaed, it’s important to set policies around who can use cloud-based email or file storage systems. This is where the expertise of a solution provider can be crucial.
The provider can select tools used in conjunction with cloud-based software to archive the data content in a way that is easily discoverable for court cases. One example of this is LiveOffice, which can archive all data on Salesforce.com’s Chatter social media platform. Knowing what products and solutions exist and helping customers set best practices for their data storage can be an evolving service opportunity for solution providers.
About the author:
Leah Rosin is site editor at TechTarget and plans the content for for SearchITChannel.com and SearchSystemsChannel.com. Rosin came to TechTarget in April 2008 from the biopharmaceutical manufacturing industry, where she worked as an editor for five years. Contact her at firstname.lastname@example.org.