Lawsuits have become a (high) cost of doing business for most organizations. Because of that, eDiscovery response should be proactively planned for to ensure the lowest possible cost to the company.
Email Systems are Targets in Many Legal Proceedings
Since 2006, Corporate information systems have become an obvious target of discovery requests with a specific focus on corporate email systems due to their potential of containing "smoking guns" and other potentially responsive data. Lawyers also target corporate email systems knowing that for an unprepared organization to search their email system, including all individual PSTs (no matter where they may reside), can be a time consuming and expensive process. A strategy many lawyers employ when designing eDiscovery requests is to target potentially relevant data in hard to search areas to drive up the cost of discovery so that the defendant considers settling early to reduce the overall cost of litigation. Of course this strategy can’t be seen by the Judge as an obvious fishing expedition to drive up the cost, however an artfully designed eDiscovery request can get by a Judge and attain the same results.
Corporations Can Protect Selves by Using Email Archives to Advantage
Over the last decade, organizations quickly learned to rely on their email archives as their centrally manageable and searchable eDiscovery repository. As future litigation was anticipated or or in fact started, corporate attorneys could search the archive and place relevant content on legal hold and review it later for possible inclusion in their eDiscovery response. In many cases, a legal hold can last months or even longer depending on circumstances so companies needed to ensure that relevant content on hold in the archive was protected from any change or deletion.
Email Archive Migration Can Be Risky if Not Done Correctly
Now, with the mass migration of on premise corporate email systems to the cloud (mostly Office 365), migrating an email archiving system can be risky if not done in a legally defensible manner, including both tracking chain of custody AND data fidelity.
Stubs by any other name, are not legally unimportant
In a previous blog, I talked about email stubs (check out the blog here). When working with archived email on legal hold, email stubs can pose a difficult problem that many email migration service providers don’t address. The email stub risk arises when your Exchange server contains thousands or millions of email stubs pointing at the archive. Many service providers and consultants take the easy but risky approach of simply deleting the email stubs in the Exchange server figuring that the actual archived email will be migrated so no data will be lost (thereby nullifying potential spoliation accusations). The truth is email stubs can contain discoverable metadata separate from the archived email so in deleting email stubs (if your organization is anticipating or actually in a legal hold situation) you are in fact potentially destroying evidence.
This is not to say that all data migrations should completely stop if your company is anticipating or is in fact in a legal hold situation. Two points should be considered before starting a data migration in this situation:
- You should first get approval from the Judge to proceed with the migration
- And you should ensure your data migration provider can guarantee that their email stub rehydration process is legally defensible.
The good news is that Office 365 provides a full feature set to support legal holds. The challenge is how to move the archived email (and stubs) into Office 365 in a legally defensible manner without putting into jeopardy the legal hold status, destroying metadata, or loosing content all together. Handling potentially relevant content subject on legal hold is an important responsibility and should not be taken lightly by you or the migration provider.
Archive360’s Archive2Anywhere absolutely preserves all email content, metadata, stub metadata, and properties, including legal hold status and sets the corresponding legal hold once archived in Office 365. To learn more about legal holds and how they are supported in Office 365, you can read this article posted in Microsoft TechNet.