E-discovery and the Archive

It's no news that archived data feeds much of the e-discovery process. By the time litigation appears on the horizon, large amounts of potentially relevant data have already aged well past the 6-month mark. Corporations must put litigation holds on active as well as inactive data of course, but the reality is that most relevant data will be aged.

And herein lies the rub -- many companies treat their archives with cavalier disregard. Oh, they'll back it up and they may even write down retention policies. But when it comes to observing the policies -- especially when it comes to searching and restoring relevant data -- these companies are caught flat-footed.

A recent case in point is Phillip M. Adams & Associates v. Asus Computer International (Adams v. Asus). In this patent infringement case, the judge ruled that sanctions against Asus were appropriate due to evidence spoliation. The evidence? Asus told the court that it had not destroyed any potentially relevant data since 2005, when it had reasonable certainty of the case. At that time it should have locked down any surviving potential data and ceased destruction efforts. However, it could produce only a few documents pertaining to the case, including emails. Plaintiffs and the court expected many more than the few Asus produced.

And Atlas -- or Asus -- shrugged. They attempted a backhanded defense by pointing a finger at individual employees and their control over data retention -- or lack thereof. Specifically Asus said that email retention was in the hands of employees, since the company did not design its email servers for long-term archival. Employees were supposed to save valuable emails on their hard drives -- and the employees are supposed to interpret "valuable" in light of potential litigation or regulatory matters. Aging emails and attachments on the servers were periodically deleted.

Not surprisingly, the court felt that this "data retention policy" was no policy at all, and was indefensible in court. The court put it this way: "It is clear that Asus' lack of a retention policy and irresponsible data retention practices are responsible for the loss of significant data."

What is the takeaway for companies? That e-discovery does not begin with a litigation matter, or even a reasonable expectation of one. It begins with well-managed archives, document retention policies that do not depend on individual employees, and enforceable procedures. Given the large size of modern archives, this will take an investment in archive management software that can admit e-discovery queries. This may take the form of a native ability to search an archive for e-discovery or compliance queries, or may require integration with a tool that does.

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