Why lawful detention technology is more than just “sending a few emails” | Ipro Tech


When it comes to an ongoing dispute, the duty to retain electronic data is clearly stated in the Federal Rules of Civil Procedure (FRCP). Check out this recent IPRO blog for an overview.

But when it comes to letting custodians know they need to keep data about an upcoming litigation, things are a little more open.

I once heard someone new to the legal technology industry say, “Legal detention is okay; it’s just sending a bunch of emails, ”which, while apparently true at first glance, is the kind of gross oversimplification that can lead to problems.

An overview of the legal retention process

As stated in the ultimate guide to legal detention of ZyLAB:

“In theory, the legal retention process is extremely simple: a legal retention order is sent by the organization’s legal department to the ‘custodians’ (employees or other persons in possession of data relevant to the case in question), after what the custodian makes sure that these data are kept. By doing this, no relevant data is lost to deletion or destruction, and no evidence is lost…. Although the theory is simple, the reality is often anything but. “

With this month’s eDiscovery Blues comic, we tried to have a bit of fun with the idea of ​​lawful detention. The cartoon’s custodian has received a notice to “lock his data” and is going a little too far. It also alludes to how things have changed since the early days of digital legal preservation.

History of electronic legal retention requirements

The outstanding case of Zubulake v. UBS Warburg, heard between 2003 and 2005, and on which it was ruled before the 2006 changes to the FRCP’s electronic discovery, often marks the official start of the legal retention of electronically stored information (ESI). But back in those days, a custodian’s data was usually relegated to their work computer.

Remember the days when you could only log into your work email at work and your personal e-mail address at home? So, they were just told not to delete anything and maybe give them a new machine. This is probably why, even now, in action movies, you’ll see FBI agents breaking into an office and starting to confiscate computers.

But nowadays things are very different. The data exists on multiple platforms in the cloud, and the Work from Home Revolution (WFH) that occurred in 2020 in response to the global pandemic has only exacerbated this. Gone are the days of a “work computer” and a “business email”. Now, potential custodians are accessing data on a variety of personal and company-owned computers and mobile devices, sometimes simultaneously (who haven’t checked their email on their phone while playing a zoom call). their laptop or vice versa).

So now, even if you “lock” a device, the data and metadata still exists in the cloud, where it is vulnerable to theft.

The need for a formal legal detention process

That’s why organizations need a strong legal custody process and legal custody technology. Not only does it automate the sending of legal block notices, which reduces the workload of the legal team, but above all it includes integrated audits and reports, which make the process defensible, and this is the key to all.

Under the FRCP, if you can show a “reasonable” effort in preserving data, you are immune to penalties. Audit reports show the reasonable effort to preserve data at every stage, from sending notices, to custodian confirmation, to actual data and metadata preservation.

Another area where the combination of a clear legal process and forensic retention technology is important is when it comes to an organization’s data retention policies. IT generally has a standard policy for the regular deletion of old emails and other unused data, as well as for deleting company email accounts and wiping company computers after resignation, termination. retirement or dismissal of an employee.

There are many examples where a legal suspension was placed before a custodian left their company, but no one bothered to notify IT to suspend retention policies, and the custodian’s data went wrong. were deleted on time, resulting in theft.

Good practices in legal retention

Needless to say, a legal retention process is more than just sending emails.

  • It must allow clear and traceable communication between legal services, custodians and IT.
  • It should include audit and reporting capabilities to ensure defense.
  • And it should provide a dynamic overview of all custodian data in various prosecutions and investigations.

In today’s global organizations with hundreds, thousands, even tens of thousands of employees creating data that can potentially be used in litigation, manually send and confirm legal retention notices and tracking them in spreadsheets will not be enough. And in the age of WFH and cross-platform SaaS collaboration tools, locking down a single machine does not provide defensible data preservation. This is why a clearly understood legal retention process accompanied by defensible legal retention technology is essential, even if the FRCP does not require it.

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