C O D E 42
E - B O O K
Laying a Strong Foundation:
Building your Legal Hold Process with Code42 CrashPlan
C O D E 42
How to Navigate this e-Book
This e-book is split into two parts. Part one discusses eDiscovery trends, best practices, headaches and workflows. Part two discusses how you
can leverage your endpoint backup from Code42 to simplify your eDiscovery process, bring legal hold activities in-house, cut IT and counsel costs,
and build a successful litigation discovery process on a solid foundation of relevant, authentic data. Use the clickable graphic below to navigate the
book, and begin laying the foundation of your stronger eDiscovery process.
Executive Summary
Part 1: Legal Hold—A Shifting, Shaky Environment
The eDiscovery Landscape
1
Legal Hold in the Eyes of IT & Counsel
Increasing eDiscovery Expectations—and Stakes
Part 2: Code42 Legal Hold—A Strong Foundation
Preparing for eDiscovery
The eDiscovery Process Diagram: A Best Practice Blueprint
2
In-House eDiscovery: A Simpler, Stronger Strategy
Universal Truth: Quality In = Quality Out
Code42 CrashPlan with eDiscovery tools
Code42 Legal Hold: A Solid Foundation for your eDiscovery Process
Code42 Supports Four Fundamental Factors of eDiscovery
Conclusion
Glossary
To return to this navigation page at any time, click the arrow in the top left-hand corner of each page.
2
C O D E 42
NAVIGATION
Code42 is platformagnostic, and can be
used and managed
by any team member,
regardless of
technical training.
Executive Summary
Rapid changes in technology and software, and the nearly universal shift to electronically stored
information (ESI), has made eDiscovery more complex and expensive. In a movement to simplify and
standardize their procedures—and dissolve some of the extra tensions surrounding litigation—many
organizations are bringing phases of the eDiscovery process in house, in particular legal hold.
CODE42 DISCOVERY
If you have Code42 CrashPlan for endpoint backup,
congratulations, your organization has already
automated the collection of user data, not only
Among other benefits, Code42 eDiscovery simplifies legal hold management. Litigation preparation can
be a large task crossing over many departments, but will consistently feature two main players: Legal
and IT. This document focuses on those two groups, and aims to enable one to see the eDiscovery
world through the point of view of one group—or the other.
for backup but also for legal hold. The ability to
preserve in place is a function that sits on top of your
enterprise data collection and protection tool. It is
completely operated from a web application that
enables litigation support personnel to access the
Code42 platform.
IT
L
INFORMATION
TECHNOLOGY
LEGAL
COUNSEL
See how the other half views eDiscovery, and how “IT v. Legal” can become “IT & Legal”
with the help of Code42.
3
C O D E 42
1
2
Part 1: Legal Hold
A Shifting, Shaky Environment
4
C O D E 42
NAVIGATION
The eDiscovery Landscape
71%
71%
71%
>$1M
>$1M
>$1M
89%
89%
89%
ofofcompanies
companies
1 1
of companies
face
facelitigation
litigation
1
face litigation
ofofcompanies
companiesspent
spent
of companies spent
The modern eDiscovery landscape is shifting as justice systems
exact or standardized science. It is foggy, complex, time-consuming, expensive
throughout the world adapt to swift technological change. Litigation
2
and rife with potential
for human
error.
As
a 2result,
most organizations maintain
ININ2013
on litigation
expenses
2013
on
onlitigation
litigationexpenses
expenses
is on the rise, as is the amount of electronic evidence processed by
IN 2013 litigation as or after it arises, rather than
a highly reactive process—addressing
courts. eDiscovery is a complicated space that requires a unique skill
preparing for it in advance. This process is more painful, even more costly, and
set. Some common best practices are followed, but it’s far from an
never wins you favor in court.
9% 89% 71% 71%
25%
25%
25%
>$1M>$1M
2
eDISCOVERY
eDISCOVERY
eDISCOVERY
often
oftenconsumes
consumes
panies of companies
gation1 face litigation1
often consumes
of companies spentof companies spent
33
ofofthe
thetotal
totallitigation
litigationbudget
budget
3
oflitigation
the total expenses
litigation budget
on litigation expenses
on
IN 20132
IN 20132
Total
Totalcost
costsavings
savings
Total cost
savings
from
fromproactive
proactive
from proactive
eDISCOVERY:
eDISCOVERY:
eDISCOVERY:
63%
63%
63%
3% 3%
5% 25%63% 63%
VERY
sumes
44
4
3%
3%
3%
reduction
reductioninin
reduction
in
employee
time
employee
timespent
spent
employee
timehold
spent
on
onlegal
legal
holdmeans
means
on legal hold means
>$1M
>$1M
>$1M
ININSAVINGS
SAVINGSPER
PER
5 5
COMPANY
COMPANY
PERYEAR
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IN SAVINGS
PER PER
5
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eDISCOVERY Total cost savings Total cost savings
1. http://www.alixpartners.com/en/Publications/AllArticles/tabid/635/articleType/ArticleView/articleId/687/Litigation-and-Corporate-Compliance-Survey.aspx#sthash.9e3RHjrc.EXoNCbra.dpbs
from proactive
from proactive
often consumes
2. http://www.bizjournals.com/kansascity/news/2014/04/21/companies-face-high-cost-litigation.html#g
reduction in
reduction in
3. http://www.protiviti.com/en-US/Documents/POV/POV-e-discovery-Protiviti.pdf
eDISCOVERY: eDISCOVERY:
employee
time
spent
employee time spent
4. http://www.slideshare.net/morrisjd1/ediscovery-infographic
4
4
5. http://www.forbes.com/sites/wlf/2014/03/06/new-corporate-survey-illustrates-burdens-of-document-preservation-and-benefits-of-proposed-reform/
on legal hold means
on legal hold means
5
C O D E 42
NAVIGATION
Legal Hold in the Eyes of IT
Legal Hold in the Eyes of Counsel
Unless IT personnel are dedicated entirely to legal hold
Before the legal hold process begins (and ideally before
processes, legal hold presents a disruption in their workday. It
litigation is threatened), counsel must understand where
is a laborious process that often requires physical collection of
information repositories exist within the company. Following
employee devices or hard drives.
the “information governance phase,” counsel is
less concerned about collection tools and more
The sheer amount of ESI that must be preserved
concerned about building a solid foundation for
during litigation results in substantial time and
their eDiscovery process.
IT
cost and exposes the organization to serious
risks—including risk of accidental destruction of
data. While chief counsel is typically responsible
L
for a reasonable collection methodology, IT is
on the front line and must understand tools,
Counsel understands the risk of sanctions for
untimely identification of custodians, delays in
implementing legal holds and omitting relevant
INFORMATION
TECHNOLOGY
LEGAL
COUNSEL
data sources from productions.
technology, data repositories, metadata and
chain of custody, user devices, user behaviors
and more.
Two Teams, Two Priorities
IT prioritizes the logistics of legal hold: they’re required to
Counsel wants a reasonable process: they prioritize
understand data repositories, server and mobile technology,
communicating legal hold requirements to IT, rapid definition
metadata, chain of custody and more.
of custodians and identification of relevant information.
6
C O D E 42
NAVIGATION
HMS Holdings Corporation
VS.
Arendt
In this case, HMS (Health Management Systems)
was suing several former employees, alleging the
misappropriation of strategic HMS confidential
information and trade secrets that the defendants
Increasing eDiscovery Expectations—and Stakes
Current U.S. litigation law requires that all parties must have good eDiscovery capabilities in place
before litigation starts:
FRCP Rule 26(a)(1) requires that all litigants have a solid understanding of
their data assets and that they are able to discuss all relevant, data-related
issues ahead of the initial pre-trial discovery meeting.
distributed in efforts to assist their new employer (PCG)
to compete against HMS.
FRCP Rule 16(b) requires that this meeting take place within 99 days after
a legal action begins.
Following the commencement of the suit, PCG placed
a broad litigation hold on all employees associated with
Courts are requiring increasingly faster production of relevant content, making responding to
the case, advising employees to “discontinue any data
eDiscovery requests in a timely manner absolutely critical. If Legal and IT teams do not have the
destruction.” But that wasn’t enough. HMS brought a
spoliation motion before the court alleging deletion of
relevant ESI from the defendants’ personal computers
right collaboration tools at their disposal, the organization risks fines or sanctions, or instructions
from the court — such as adverse inference.
and electronic devices. The defendants did not deny
the deletion of ESI, but raised various explanations
The Real Threat of Adverse Inference
and excuses. Following a hearing, the court found that
Another important benefit of good information governance is the ability to minimize—or eliminate—
a mandatory, adverse inference against two of the
the possibility that data might not be properly identified and preserved during an eDiscovery
three defendants was “necessary to alleviate the harm
exercise or a regulatory audit. Evidence spoliation during a legal action, for example, can carry with
suffered by HMS.” The defendants were also ordered
it enormous and damaging consequences. The destruction of evidence inhibits a court’s ability to
to pay HMS the costs, attorney’s fees and expenses of
the spoliation motion.5
This case highlights the risks associated with non-compliance
during the litigation discovery process. Automating legal hold
processes assures that ESI held on custodian devices cannot
be deleted intentionally or unintentionally.
hear evidence and accurately determine the facts. An adverse inference instruction from the court
to a jury, in which the jury is instructed it may assume the party failing to present data is hiding
something, can be extremely damaging.7
5. http://www.nycommdivcompendium.com/2015/06/02/thou-shalt-not-destroy-esi-yet-another-cautionary-tale-on-the-duty-to-preserve-electronically-storedinformation-from-the-commercial-division-albany-county/
6. https://www.law.cornell.edu/rules/frcp/rule_26
7. http://www.ediscoverylaw.com/2010/11/court-imposes-adverse-inference-for-failure-to-preserve-text-messages-related-to-criminal-investigation/
7
C O D E 42
NAVIGATION
The eDiscovery Process Diagram: A Best Practice Blueprint
The eDiscovery process diagram gives you a bird’s eye view of the path a piece of electronic evidence will take from start to finish. The Electronic Discovery
Reference Model (EDRM) shown here is widely used and respected in the U. S.; it demonstrates a conceptual view of the eDiscovery process.8 According
to a RAND Corporation study, the legal and financial costs and stakes greatly increase with each chronological step in the diagram. The study found that
8% of the costs of producing electronic documents was for collection, 19% was for processing and 73% of costs were in review-related activities. This cost
expansion trend reinforces the necessity to have a careful eDiscovery plan, right from the start. Organizations that efficiently cull non-relevant documents
during the less costly collection and processing phases will incur lower costs when it’s time for the more expensive review and analysis phases.9
One direct result of poorly defined or enforced information governance is greater eDiscovery costs. Without a strong start, litigation processes will be less
efficient, resulting in the production of excessive amounts of content that must be reviewed by paralegals or attorneys down the line.
It’s all about laying a strong foundation.
Information
Governance
Identification
Preservation
Collection
Processing
Review
Analysis
Production
Presentation
Est. cost/gigabyte: $910
Est. cost/gigabyte: $2,931
Est. cost/gigabyte: $13,63610
8. http://www.edrm.net/resources/diagram-elements
9. http://www.rand.org/content/dam/rand/pubs/monographs/2012/RAND_MG1208.pdf
10. http://www.slideshare.net/jmancini77/arma-michigan
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C O D E 42
NAVIGATION
THE HIGH COST OF
OUTSOURCING eDISCOVERY:
An RFP requires research, analysis, scoping, collection
and prioritization of requirements, and communicating the
IT landscape to a potential supplier.
In-House Legal Hold: A Simpler, Stronger Strategy
In many organizations, the legal hold and eDiscovery processes look a lot like the titles of litigation
cases: Outside counsel v. Inside counsel, Legal team v. Vendor, IT team v. Vendor, Legal team v. IT team,
Legal team v. “the system,” IT team v. “the system,” etc. In a movement to simplify and standardize their
procedures—and dissolve some of these extra tensions surrounding litigation—many organizations are
embracing the new best practice of bringing their eDiscovery process in-house.
RFP
96%
of the costs of producing
RFP
ELECTRONIC DOCUMENTS
are spent on outside
counsel or vendors.11
MEGABYTES
OF CONTENT
eliminated during the
collection phase will save
$1,364
Outsourced eDiscovery:
Create a request for proposal, a discovery plan requires someone to
research analyze and scope the project, collect and prioritize requirements
and understand and communicate the IT landscape to a potential supplier.
scovery:
Code42
an admin
simply authorizes
for proposal,With
a discovery
planCrashPlan,
requires someone
to
e and scope the project, collect and prioritize requirements
the legal
application
to enable
and communicate
the IT hold
landscape
to a potential
supplier. counsel or litigation
MANAGING eDISCOVERY
IN-HOUSE:
support to select custodians and manage preservation.
100
One ESG survey found
that
73%
OF FORTUNE 2000
enterprises & government
agencies have a plan to
bring eDiscovery in-house.12
Bringing certain early
eDISCOVERY FUNCTIONS
in-house reduced the amount
of material one company had
to send to outside counsel for
review by over
75%
11
IN REVIEW COSTS.11
Read part two to learn how you can leverage your Code42 endpoint backup—now with improved Legal
Hold capabilities—to move legal hold management in-house, and build your eDiscovery process on a
more solid foundation.
SAMSUNG
VS.
APPLE
11. http://www.rand.org/content/dam/rand/pubs/monographs/2012/RAND_MG1208.pdf
12. http://www.computerworld.com/article/2516002/enterprise-applications/e-discovery-moves-in-house.html
9
C O D E 42
1
2
Part 2: Code42 Legal Hold
A Strong Foundation
10
C O D E 42
NAVIGATION
CODE42 LEGAL HOLD:
• Works across multiple operating systems—including
Preparing for eDiscovery
As every IT team member knows, the power, potential, value and life of an organization is its data.
Every year, big data grows bigger, and it’s not living neat and tidy in the center of the system. It
Windows, Mac and Linux—giving IT full visibility of all
lives on endpoint devices that are mobile, geographically dispersed and not always connected to
user data in a single dashboard.
network servers.
• Supports very rich policy management to
ensure that technology corroborates information
governance policies.
• Offers feature parity across platforms with a single
agent for open file handling.
When employee devices are backed up with Code42 CrashPlan, IT has visibility—via historical
archive—of every version of every file, wherever employees are stationed. IT can facilitate counsel
and/or litigation support personnel by giving access to the legal hold web app from the console.
Once enabled, counsel can choose custodians, define and manage preservation policies, and
select and collect documents for the second phase of eDiscovery.
Administration
Legal Hold
Return to all legal holds
Total Quality Litigation
Status: ACTIVE
Date created: 5/12/15
Created by: Joseph Wang
Details
Custodians
Activity
Choose status:
Name
Date added
Status
Barton Macklin
5/2/15
Active
Get Files
Dwight Schrute
5/2/15
Active
Get Files
Efrain M. Harper
5/2/15
Active
Get Files
George Lundy
5/2/15
Active
Get Files
James Borum
5/2/15
Active
Get Files
Joseph A. Lyons
5/2/15
Active
Joyce J. Gilligan
5/2/15
Get Files
Active
Restore Target:
Zip file
Active
Collection
Done
Get Files
Get files...
Lorraine M. Daly
4/19/15
Active
Get Files
Malcolm W. Perry
4/19/15
Active
Get Files
Patrick Housman
4/19/15
Active
Get Files
Pauline Winston
4/19/15
Active
Get Files
Peter Henninger
4/19/15
Active
Get Files
Shirley Kendrick
4/19/15
Active
Get Files
Spencer Young
4/19/15
Active
Get Files
11
C O D E 42
NAVIGATION
Universal Truth: Quality In = Quality Out
Endpoint backup across the enterprise is the foundation upon which disaster recovery
plans, compliance and remediation strategies, streamlined data migration processes
and other business functions are built—including proactive legal hold.
The Code42 CrashPlan legal hold module extends the utility of your
enterprise data platform to support a legal hold process that is
thorough, relevant and meticulously documented. Your process
contributes to your ability to win favor in court and avoid instructions
or sanctions resulting from spoilation.
Data Mining,
Modeling and
Analysis
Legal
Hold
Data Migration
Disaster Recovery and
Business Continuity
Vital Evidence
Future
Compatible
Predictive Risk
Analysis
Legal Hold Process
Forensics
Data Security
CAPTURE AND STORE ALL END-USER
DATA ON THE CODE42 PLATFORM
When your eDiscovery process is built on a solid foundation, so is your case.
12
C O D E 42
NAVIGATION
Code42 CrashPlan with eDiscovery Tools
Endpoint backup can support a strong information management policy, and is
the foundation of a proactive and reasonable approach to data management
and litigation preparation.
Code42’s integrated legal hold module is intended for use by technical or
Administration
Legal Hold
non-technical teams. This module enables eDiscovery teams to centrally
control policies, profiles, permissions, user accounts and groups in real time.
In the legal hold application, a legal hold is applied when the lawyer (or legal
technologist) selects the custodian and preservation policies, including a data
Return to all legal holds
Total Quality Litigation
Rename…
Status: ACTIVE
Date created: 5/12/15
Created by: Joseph Wang
destination where files are stored. The console activities do not disrupt a
Details
custodian’s work.
Description
Deactivate ho
Remove hold
Custodians
Activity
Description: No legal hold description yet
Code42 legal hold is a reasonable, repeatable process that preserves
Preservation Policy
custodian data in an onsite or offsite system. The data is only collected/restored
for processing if the legal team is unable to resolve the litigation. Preserving in
General Backup:
Adjust backup set settings
place can result in significant cost savings if an early settlement is reached.
File Selection: Choose which files to include and exclude
User Profile Backup: User profile and state settings to capture
Code42 legal hold:
• Provides a silent, continuous, unlimited and unified solution
• Places legal holds without user disruption or file duplication
Filename Exclusions: Choose which filenames to include and exclude
• Allows access to audit trails and file metadata
• Provides a single role-based admin interface
Frequency and Versions: Versioning controls how frequently file changes are captured and kept over time
• Integrates with eDiscovery processing software
Advanced Settings: Set and adjust additional settings
Reference
External Reference:
13
No reference ID yet
C O D E 42
NAVIGATION
Code42 Legal Hold: A Solid Foundation for eDiscovery Process
Code42 CrashPlan provides the solid endpoint backup that’s vital to a robust information governance policy. The Code42 legal hold
application provides litigation team members with a strong collaboration tool providing visibility, management and legal hold capabilities for the
identification, preservation and collection phases of eDiscovery.
Information
Governance
Identification
Preservation
Collection
Processing
Review
Analysis
Information Governance: Code42
Identification: The
Preservation: Through the
Collection: The self-service
CrashPlan enables an accountable
Code42 platform makes
legal hold module, litigation
function is administered
framework for information
it easy for a single admin
support specialists select
through the legal hold
governance of end-user data. The
to manage all legal holds
custodians, assign parameters
web app. Here, files and
Code42 legal hold application is
from a unified console.
and policies of the legal hold
associated metadata are
built atop its robust endpoint data
data set, and audit processes
restored in native formats
protection and security platform—
throughout. Custodians can be
to maintain auditable chain
which backs up every version of
placed in multiple legal holds,
of custody.
every file automatically and enables
each with unique policies.
Production
Presentation
management of end-user data via a
single powerful console.
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C O D E 42
NAVIGATION
Building Success on a Solid Foundation
Code42 integrates with eDiscovery analysis products, ushering your relevant data—collected with its integrity and authenticity intact—into the
processing, review, analysis, production and presentation phases. Quality in = quality out.
Information
Governance
Identification
Preservation
Collection
Processing
Review
Analysis
Production
Presentation
Processing: Following
Review: During the review
Analysis: At this point, the
Production: Documents
Presentation: In the
collection, native files
phase, documents are
scope of the eDiscovery
are turned over to
final stage, evidence is
are prepared to be
reviewed by counsel for
project is set, and the files
opposing counsel
presented to a judge in
loaded into a document
responsiveness to discovery
are analyzed by counsel
based on agreed-upon
court.
review platform.
requests and for privilege.
for use in building an
specifications and
argument.
governed by the rules of
procedure. Documents
can be produced either
as native files or in a
standardized format (such
as PDF or TIFF), alongside
metadata.
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C O D E 42
NAVIGATION
Code42 Supports Four Fundamental Factors of eDiscovery
In the United States judicial system, an organization’s eDiscovery process is judged based on reasonableness. This is
a largely subjective quality, or rather a balance of many qualities, but consistently includes the following factors:
1
2
3
4
Duty to Preserve
Scope
Chain of Custody
Data Management Philosophy
Code42 CrashPlan supports the duty to
For defining the amount of information
As relevant information progresses
The Code42 platform enables the
preserve through continuous, automatic
that will undergo eDiscovery, the Code42
through the eDiscovery workflow, it
organization to:
collection of every version of every
platform supports robust search of
moves from place to place, is seen by
file continuously and automatically—
people, past, present and deleted files,
new people, and will eventually leave the
preventing loss, deletion or spoliation
topics and devices. It also provides the
organization for review and processing.
of documents.
ability to see what data has been saved
Code42 CrashPlan supports chain of
in third-party clouds (such as Dropbox or
custody with audit trails and metadata
OneDrive) or removed via external drives
log files.
• Set retention policies individually, by group or
geographical location
• Determine where to store custodian data
• Select which data is backed up and
preserved through an extensible rule set
• Perform legal hold on custodian endpoints
regardless of operating system platform (i.e.,
Windows, Mac and Linux)
(such as USB drives).
The duty to preserve evidence
prohibits destruction or
alteration of electronically stored
information (ESI).
When preserved data is
narrowed down, the process is
also referred to as culling.
It is incumbent upon attorneys to
periodically notify custodians that a
legal hold has been placed on their
devices; custodian compliance needs
to be monitored.
Spoliation sanctions have increased
271% since 2005. The most common
misconduct resulting in sanctions
was the failure to preserve.12
16
12. http://www.abajournal.com/files/DukeLaw.pdf
C O D E 42
NAVIGATION
Conclusion
In order to strengthen processes, avoid spoliation fines, simplify complexities and control costs, innovative enterprises are moving
vital parts of their eDiscovery processes in-house. Those with Code42 CrashPlan can do this with ease, using its legal hold
module, which sits on top of their continuous endpoint backup platform. The legal hold module enables legal teams to create and
manage all legal holds through a single application.
Endpoint backup is a secure and solid foundation for managing and protecting end-user data. In the event of litigation, you can
extend this strength to your eDiscovery process.
When your process is built on a solid foundation, so is your case.
To learn more about the legal hold feature of Code42 CrashPlan, contact your sales representative or visit code42.com/contact.
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C O D E 42
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17
C O D E 42
NAVIGATION
Glossary
Adverse Inference
A legal ruling, resulting from the absence of requested evidence, in which the
jury is instructed that it may assume the party failing to present data is hiding
something.
Chain of Custody
The documentation of the path a piece of evidence traveled before being
presented in court; an audit of who made, saw, touched, altered evidence
and why.
Collect and Preserve
A legal hold method where relevant files are collected and placed in a new
location when it is practical to do so.
Legal Hold
An action taken by an organization to preserve relevant information; must be
performed when litigation is anticipated.
Information Governance
The set of structures, policies, procedures, processes, controls and general
philosophy implemented by an organization to manage the information it
creates and uses.
Litigation
A lawsuit; the proceedings initiated between two or more opposing parties to
enforce or defend a legal right in court.
Custodian
The creator or holder of a piece of evidence.
Preserve in Place
A legal hold method where relevant files are immediately “locked down” in
the same location in which they are found—workstations, laptops, file shares,
information repositories, etc.
eDiscovery
The process of identifying, preserving, collecting, processing, reviewing,
analyzing, producing and presenting electronically stored information
associated with legal proceedings.
Reasonableness
A judgment determined by the court regarding the quality of the eDiscovery
and information governance policies of an organization.
ESI
Electronically Stored Information; an acronym referring to any evidence that
exists or existed in digital form.
Sanctions
Penalties for disobeying or disregarding a rule of law; fines, restrictions, or
other deterrents.
Spoliation
The deletion, misplacement or alteration of evidence.
18