Are your data searches defensible?
The electronic discovery process--e-discovery--is a challenging one for many organizations, and soaring mountains of data are likely to make it more so in the years ahead, writes Thomas Barnett at CIO Insight. The ability to perform valid searches is key to survival in the new data-drenched environment.
Being able to understand and demonstrate how your data searches work provides confidence that search results are accurate and defensible. This is important not only in complying with legal and regulatory requirements, but also in analyzing data for business purposes. The difference is that in a litigation situation, lawyers with subpoenas are in charge. Unfortunately, too often neither the lawyers nor the people responsible for the data have the expertise to search for and identify the relevant data in a defensible way.
As Judge Shira Scheindlin put it, "[M]ost custodians cannot be 'trusted' to run effective searches because designing legally sufficient electronic searches in the discovery … context[s] is not part of their daily responsibilities." In a recent case, Scheindlin noted the importance of having the ability to explain, validate and defend the way in which requested data was identified and handed over.
If your company is being sued, you shouldn't be surprised if your opponent argues that you're trying to hide information, trying to avoid the expense of e-discovery or that you don't know what you're doing, Barnett writes. "In the warm and fuzzy world of litigation, challenging process can be an effective means of applying leverage regardless of the merits of case," he warns. "Put another way, if your adversary can successfully attack how data was searched and selected, he or she can score points or even prevail without ever having to prove his or her case."
- see Thomas Barnett's post at CIO Insight