For many in-house counsel, staying afloat in today’s litigation and financial environment has become increasingly difficult. The amount of data that flows through companies has exploded while compliance measures have increased and deadlines for discovery have gotten shorter. The current economic troubles can slam legal departments in several ways not only are companies tightening their belts wherever possible, but certain types of lawsuits tend to increase during financial downturns.
According to the U.S. Equal Employment Opportunity Commission, the number of discrimination complaints increased 9 percent in 2007. The EEOC speculates that at least some of that growth is due to “changing economic conditions.” If the past year is a guide, discrimination lawsuits could certainly increase as the economy looks turbulent for the foreseeable future, and organizations will be forced to continue downsizing their workforce.
For many in-house counsel, the struggle to stay on top of litigation in 2009 could get worse before it gets better. It’s enough to make many wish they had a field guide to find their way through the forest of lawsuits. Fortunately, there are ways that in-house counsel can proactively prepare for litigation and regulatory and compliance issues, easing the burden of discovery while increasing the defensibility of their processes and procedures. Developing a data map of an organization’s information flow is one important step.
A data map is a visual reproduction of the ways that electronically stored information (ESI) moves throughout companies, from the point it is created to its ultimate destruction as part of the organization’s document retention program. At its heart, data maps address how people within the organization communicate with each other, and with others outside the organization.
A comprehensive data map provides the legal and IT departments with a guide to the employees, processes, technology, types of data, business areas, along with physical and virtual locations of data throughout a company. It includes information about data retention policies and enterprise content management programs, as well as identifying servers that contain data for various departments or functional areas within the organization. These highly effective form of information organization also takes into account high-risk issues such as the type of litigation a company is facing or is likely to face in the future.
Elements of Data Mapping
A data map represents the intersection of the expertise of IT and legal, and it should illustrate the limitations or boundaries of how information is moved and stored. It allows in-house counsel to see where data resides, not just for litigation purposes but for regulatory and compliance issues, as well as proactive information management initiatives.
In order to be effective, a well-constructed data map should illustrate several aspects; it should offer a snapshot of employees and the technology tools that they use. It should show which servers, and which types of servers, are utilized by which functional areas and departments within the organization. Another key element that can be discerned from a data map is whether and organization’s data tends to be more unidirectional or bi-directional. Unidirectional data flows one way, from the source to the target. Bidirectional data flows two ways. Different types of information lend themselves to either being unidirectional or bi-directional, and it is important for in-house counsel issuing litigation hold notices and conducting discovery to understand how both fit into an organization.
The locations, formats and methods for storing data represent major issues in e-discovery, and these should be thoroughly recorded on a data map. That includes detailing whether data is stored on-line, near-line or off-line. Under the revised Federal Rules of Civil Procedure and according to some recent case law, data that is not “reasonably accessible” does not need to be produced in a lawsuit. However, there is not a bright-line rule in many jurisdictions for what constitutes “reasonably accessible.” If a company claims that certain data is difficult to access, a map that shows where that data can be found and in what formats it exists can help courts more effectively determine whether such data is “inaccessible” and weigh the cost and burden of forcing production of such data.
Beyond tracking whether data is accessible or not, a properly developed data map can also help the legal department ensure that data is being backed up and stored properly, in accordance with the organization’s document retention procedures. For example, if the company retention policy calls for all backup tapes to be discarded after three years, a data map should reflect that and counsel can actually isolate where data would be kept and confirm the presence or absence of data outside of the relevant retention period. At the same time, when an organization needs to issue a litigation hold notice, knowing which employees represent potential custodians and others that are closely connected to these custodians can help in crafting an effective but not overly broad litigation hold; this will serve to not only simplify the task of ensuring that potentially discoverable information is being exempted from the usual data destruction cycle, but also reduce the costs of discovery by limiting the pool of data retained under the litigation hold.
How to Track and Locate Information
The goal of a well constructed data map should be to connect people to the information they create, and in-house counsel will need the assistance of the IT department to do a thorough job. The human resources department may also need to be involved in the process, to provide updated organizational charts and insights into the activities of different employees.
But it is the IT department that can provide the information about the different hardware, software, servers and formats that the company utilizes. The experts in IT should know, among other things, which departments have data stored to which servers, which personnel have access to different data stores, as well as more granular information such as which employees have personal digital assistants and whether information from those PDAs reside in separate areas from traditional email and other electronically stored information.
With the overview offered through creation of a comprehensive data map, it may be possible to simplify server and data storage systems as well. By tying organizational charts to information flow, in-house counsel can save a great deal of time and effort during discovery. If the entire finance department’s data resides on a single server, it becomes much easier to hone in on relevant information during discovery.
One Aspect of the E-discovery Strategy
A data map should be one part of a company’s records management policy and e-discovery strategy. During a typical litigation case, the legal department works with outside counsel, consultants, and other service providers to begin scoping potentially relevant information. This process typically starts with reviewing an organizational chart to identify key potential custodians. With a data map, the legal department can quickly drill down to identify sources of potentially relevant discoverable data. An organizational chart will tell you who a given employee is connected to in an authority relationship (both subordinate and superiors), but it will not necessarily reveal the communication patterns across departments, between finance and HR and legal. A data map, however, will allow organizations to examine email threads and chart communication patterns of individuals, revealing previously unconsidered patterns and relationships that may not be obvious from a flat, hierarchical organization chart.
The pressure on in-house counsel to conduct quick, efficient discovery has increased since 2006, when the federal rules were amended; under the revised federal rules, litigants have a limited amount of time to prepare for the initial meet-and-confer with opposing counsel, where they identify and attempt to resolve issues that relate to preserving and producing ESI. So the faster in-house counsel can identify and collect potentially discoverable information, the more time they have to review it.
A data map can also be extremely helpful in defending the company’s discovery processes and procedures before the court and opposing counsel. With a data map readily available, it becomes easier to show how a company has complied with the terms of discovery and makes their internal processes more transparent to both opposing counsel as well as the courts.
Four Tips on Creating & Maintaining a Data Map
Creating a data map that fits the needs of the legal department can be a considerable undertaking, and will involve close communication with IT professionals; but when it is done properly, a data map will save time, money, and frustration amidst the stress of issuing litigation hold notices and engaging in discovery. To ensure that your data map is ready and effectively allows you to access l the information you need when you need it, follow these four steps:
1) Involve other departments and managers early on
IT and HR are valuable partners in the creation of organizational data maps, and so are departmental managers. Managers know the people, the systems and the technology in their departments and divisions. By getting their buy-in early on, in-house counsel can save a great deal of time and aggravation and ensure that data maps are accurate and timely.
2) Develop logical and comprehensive practices for managing data
Identifying data sources is a key step in creating a company-wide document retention policy. As new technologies explode, it is important to regularly educate employees about the organization’s data management policies, so they understand, for example, that the instant messages they send at work don’t just disappear into the ether but may someday come back as part of a lawsuit.
3) Create clear pathways of communication
At many organizations, one division often doesn’t know what the other division is doing. Unbeknownst to legal, IT may be testing a new backup system for part of the company’s data. Employees may be adopting many different types of cell phones they use to text messages that relate to their jobs or their coworkers. When it comes to data, it’s important that different groups within the organization communicate regularly to avoid building silos of information that can hamper e-discovery.
4) Don’t just create, update
A data map is only useful if it includes current, accurate information about the personnel within the organization, the technology tools, and the pathways that data travels. Data maps must be updated regularly in order to stay relevant. Employees come and go, terminologies changes and technology is constantly evolving. The data map should be reviewed on a regular basis to ensure information is still relevant.
When lawsuits hit, many in-house counsel find themselves scrambling to identify potential custodians and potentially relevant ESI. But with a data map, it becomes easier to navigate through discovery. With the means to quickly zero in on the right custodians and the right data, in-house counsel have more time to focus on developing strategies for litigation that can further the company’s business goals.
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