Curbing digital debris

As a litigation attorney, I often advise businesses in responding to discovery requests, like requests for production of documents and electronically stored information. Often, the e-discovery process reveals the existence of data and documents that serve no business or legal purpose.

The data and documents are called “digital debris.” This debris could be from employees saving copies but never deleting them. It can also accumulate as a result of purposeful conduct, such as digital hoarders who have chosen to “keep everything indefinitely.”

Tackling the issue now may reduce costs in the event of litigation. Many judges, lawyers and professionals agree that e-discovery is expensive, in part because organizations lack any process for identifying and disposing of their digital debris.

Among e-discovery professionals, “information governance” is the process of reducing an organization’s data footprint in a controlled and defensible manner before anyone is aware of the possibility of litigation.

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Developing an appropriate IG policy before litigation strikes is important because, once a party is on notice of possible litigation, the organization must implement a “litigation hold” and suspend its routine document retention and destruction policies. In that event, some or all your digital debris may need to be preserved, collected and reviewed, at a substantial cost to your business.

The first step in your spring cleaning is often to obtain agreement from the pertinent stakeholders about what data and information serve a business purpose before it becomes subject to a legal hold. Be sure to obtain employee buy-in because employees may disregard your IG policy if you don’t.

The next step is identification and disposal of digital debris. Technology has multiplied the ways that organizations can retain materials that no longer serve any business purpose. To give just a few examples:

n Employees often use network resources or cloud-storage applications for sharing, transferring or temporarily storing files, but employees rarely purge this data once it is no longer needed.

n Businesses often automatically generate and distribute logs and reports over email, and employees retain those emails with copies even though the report can be retransmitted if it is needed later

n Departing employees’ electronic files are often not organized or distributed to other employees upon departure and are, instead, just left in place.

The identification and disposal process is often both iterative and laborious, with an unavoidable investment of time and resources. Often, digital debris is uncategorized and not subject to any naming convention. Conversely, wholesale uncontrolled deletion is risky.

Companies often need to deploy significant technology and resources to support this initiative, identifying and overcoming roadblocks along the way. For example, recalcitrant data hoarders may resist (or, potentially worse, ignore) the initiative. In fact, sometimes clean-up efforts drive data hoarders underground.

Properly done, implementation of an IG policy and controlled elimination of digital debris could result in substantial savings in the event of litigation. Businesses may also find improved workplace efficiency. •

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