Should an eDiscovery Checkup Be in Your Future? Timely Tips to Protect Your Electronic Data Infrastructure

Frank Rudewicz
March 20, 2008 — 1,216 views  
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Electronically Stored Information (ESI) is pervasive in the business world today. Hundreds of thousands of electronic documents are produced and stored by your company that once were stored on paper in filing cabinets or conveyed only verbally. Your secrets, valuable financial information, private corporate communications, and even your private thoughts with a colleague are now electronically recorded in e-mails, Instant Messages, voice recordings, and Word docs on CD’s, Thumb Drives, Laptops, Blackberries, home computers, and dozens of other places. These communications are easily acquired and transported, potentially to your detriment. In addition, if your company is facing the potential of litigation or if you plan to engage in virtually any type of transaction, the attorneys on the other side will demand that you produce this data as part of those processes. 1. Who has YOUR private information? 2. How do you protect your corporate secrets? 3. How will you produce only relevant data? 4. How will you handle the incredible costs? To help you deal with these and other ESI issues, UHY Advisors FLVS has developed several tips that your client or organization can implement to minimize the risk and exposure that can result from the ESI that your company creates in the normal course of business. 1. Create a simple backup and document retention plan. Having a plan sets out specific rules that your employees can easily follow to protect your company's Electronically Stored Information (ESI). In fact, the Federal Rules of Evidence have specific provisions that protect companies that have bona fide plans in place that are being followed. 2. Create and maintain an accurate Data Landscape Document (DLD). This document provides an accurate and complete description of where your ESI should be stored and where it is actually and eventually stored and where it should be stored. The DLD is a critical part of your plan. 3. Make backups of your computer servers for "disaster recovery purposes only." 4. Do not use backup media for long-term electronic data storage. In other words, do not hoard data. 5. As part of the plan, direct employees to save documents to designated locations. 6. Restrict the ability of your employees to store email data in "offline" archives. 7. Restrict and/or track the use of Instant Messaging within your organization. 8. Restrict and/or limit employee's access to internet-based personal email accounts (yahoo, AOL, gmail, hotmail, etc.). 9. Restrict the ability of your employees to create backups of company data on devices that are not approved and/or managed by the company's IT department. 10. In the event of litigation, your company may be put in a position to produce a "person most knowledgeable" about your system to serve as a witness (referred to as a 30(b)(6) witness). Develop or contract with someone to serve in this position.

Frank Rudewicz

Marcum LLP

Frank E. Rudewicz serves as Principal and Counsel of Marcum LLP and heads the Forensic, Investigative and Valuation Advisory practice for the New England area. He has more than 26 years experience conducting domestic and international investigations for anti-trust/anti-competitive issues, harassment, fraud, ethics and other employment related conduct.