Common IT processes to land you in court

Electronically stored information (ESI) is coming under increased scrutiny by the Federal Court systems, both in Australia and overseas.

The process of locating ESI across structured and unstructured information sources is known as e-discovery.

But serious concerns are emerging over the extent that common IT processes and embedded data could implicate IT managers and CIOs in litigation proceedings, according to Dr Bradley Schatz, director of forensic technology at Vincents, a forensic accounting firm in Brisbane.

“It’s important to be able to identify where all electronic copies of information sits in your organisation – whether on tape, at an offsite disaster recovery site, or even in a third-party solution like salesforce.com,” Schatz said.

Schatz urged IT managers to consider the openness of hosted applications to release information sought under e-discovery mechanisms, when evaluating them for business use.

“There is going to be increasing pushback from industry to get access to the data locked in these third-party silos,” predicted Schatz.

Schatz told iTNews that it may be strategic to have data locked into a third-party hosted application because it is relatively inaccessible – and it could be argued the costs of gaining access to it outweigh the potential benefits of running e-discovery over it.

However, this strategy could also very easily backfire, Schatz said.

Automated IT back-up and business continuity schedules can also be problematic – and are likely to be suspended to protect any e-discovery process.

IT departments need to plan ahead to mitigate the impact of suspending key business processes and systems, according to Schatz.

“Legal teams, in particular, need to be aware of the ongoing data deletion and preservation processes inside the business,” he said.

“The U.S. Courts in particular have taken a dim view against organisations who continue with these types of automatic data deletion [despite impending proceedings].”

Schatz implored both legal and IT teams to sit down internally and revise a ‘defensible’ document preservation and destruction regime.

“Because digital storage is relatively cheap, people tend to keep everything. This can be problematic in a legal sense because there may be documents you could have deleted that are now disadvantageous to your case,” explained Schatz.

“People hold onto things because it could be information that someone is going to thank you for keeping down the track. But you could be the villain if it becomes the subject of e-discovery."

Metadata captured by documents and filing systems can also be an issue.

A practice note recently issued by the NSW Supreme Court asks law and IT professionals to consider the impact of metadata when creating native documents.

However, case law is mixed on whether companies should be compelled to hand over metadata such as edit and print logs of individual files.

Schatz said that most concerns can be resolved by forging closer ties between the IT department and the in-house legal team.

In particular, law professionals need to gain a better understanding of how IT processes work to enable them to make e-discovery decisions that don’t adversely impact existing business processes.

“The IT department and legal teams are not known to be groups in day-to-day contact, but they will need to strengthen their links going forward,” Schatz said.

But he cautions, “Lawyers shouldn’t have to become geeks to move forward with e-discovery, and technologists shouldn’t have to think as defensively as lawyers.”

Schatz appeared as part of an Oracle roadshow on e-discovery.

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