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Are You Holding What I Think You Are Holding?
It is the big day. The IT manager is due in court to support his company's case and to demonstrate that the company has established and followed proper procedures to search, process, secure and produce evidential IT records pertaining to the case. He has been prepared and coached on what to say and when and how to say it. This particular case is critical to the organization and any missteps could potentially result in adverse inference, substantial fines and even loss of reputation. The company really does not want be on the losing side.
The IT manager takes the stand. Opposing counsel begins to question the IT manager and the first 10 minutes of the ensuing discussion go fairly well. The IT manager describes the organizational processes to: search and gather relevant IT information relevant to a case; inform appropriate concerned parties; apply holds to documents; secure e-mails; and how applications/systems back-ups are performed and retained.
Opposing counsel then starts to hammer it in and poke holes at the IT manager's statements, and pretty soon is able to establish significant deficiencies in the IT processes. Specifically, counsel is able to demonstrate that IT litigation hold processes were not always followed consistently and IT information was not secured in accordance with the company's own hold requirements. Even worse, several management employees in the IT division of the company were unaware of key requirements of the specific hold in question. The IT manager, to his credit, continues to vigorously defend the organization, but is not able to convince the court that the right controls were applied at the right place and time. While the organization did indeed have good documented hold processes, it failed to enforce these processes in a manner that was consistently demonstrable. Needless to say, the IT manager's testimony did little to enhance the credibility of his organization in court.
Holding the Right Piece
Establishing a sound litigation hold process is not easy, but in-house legal teams in many organizations have done an outstanding job of setting up these processes in the face of disjointed business procedures, distributed teams and dispersed information. Applying these holds consistently, especially in IT, is however another thing. Information within the IT domain is vast, constantly changing, expensive to manage and, in many cases, under the direct control of end users ' negating any central IT checkpoints that may have been established.
While legal departments establish hold policies and procedures, IT managers must support and streamline the implementation of the hold process. Below are some considerations for litigation hold teams.
Establish an IT Governance Model for Litigation Hold. Every litigation hold is a project in itself ' with timelines to be met, roles and responsibilities to be established, deliverables to be developed, communications to be generated, a limited budget and, finally, ensuring that organizational expectations are met. A good litigation hold governance model that includes, among other things, the establishment of processes specifically targeted toward IT, would go a long way in streamlining the overall hold process. Such a governance model would consist of the identification of various IT personnel and their roles and responsibilities throughout the hold process. Included in this model would be:
- Application system owners, business owners, system administrators and key operational resources for each application;
- Infrastructure teams, including platform managers, data backup and network engineers;
- Software lifecycle teams, including change management leads, configuration managers and test managers; and
- Application and data security managers.
Each designated role has a specific set of documented responsibilities and supports the litigation hold process by validating and certifying that the appropriate checks and controls have been activated in accordance with the litigation hold requirements. Such an IT governance model can help demonstrate consistency of tasks and show a chain of custodial control throughout the hold process.
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