When dealing with a lawsuit that inevitably will require the production of electronically stored information (“ESI”), one of the first things we (as counsel) have to do is figure out where that ESI resides. But how, exactly, does one begin to determine where responsive data exists? Well, consider the client’s data map.
Some of you may be thinking, what the heck is a data map?
A data map is just as it sounds – it is a way to understand the specifics of where responsive electronic information resides within a company/corporation’s infrastructure. It often does not exist at the inception of a lawsuit, but instead is “drawn” by counsel after engaging in interviews with a client’s information technology (“IT”) representative, the client’s general counsel, and/or the individuals at the client who are most likely to have information responsive to the lawsuit (i.e., the custodians). The resulting “map” should list as much information as possible about what electronic information exist (email, Excel documents, accounting reports), on what devices (lap top, shared drive, desktop, the cloud, backup servers), under whose care (custodian vs. IT), and how the data may be accessed.
It is critical to note though, the map that you create today, may not be accurate in a week. Specifically, if a server fails, or a laptop crashes, for example, then data that existed in location “A” today, may reside at location “B” next week, and therefore, the data map from last week is no longer accurate. The point being – even if a client hands you a data map at the inception of a litigation – you should confirm it is current and accurately reflects the existing infrastructure.
While this post is not intended to discuss litigation holds, suffice it to say that a data map can help focus a litigation hold (i.e., what media needs to be preserved and for which custodians) because the better you understand where the data resides, the easier it is to identify what needs to be preserved.
Some critical items to think about and discuss when meeting with the client/IT representative and endeavoring to create a data map.
What is the physical infrastructure in place at the client:
- Location –
- Where is the client’s datacenter?
- Specifics of infrastructure –
- Identify and secure server names, server location, and IP addresses of servers.
- Make sure you understand the operating system in use, and whether the servers are backed up.
- Email specifics –
- What application is used (i.e., Microsoft Exchange, Googlemail)?
- Where is the email hosted (i.e., internally or elsewhere, are they stored locally or at server level)?
- Are Emails backed-up? If so, with what frequency?
- Where do those backups reside?
- Is there an auto-delete functionality in place?
- Is there a mailbox size limitation?
- Custodians –
- Who are my custodians?
- Where do they work?
For each custodian ask:
- What computer(s) do they use
- What is the name/IP address/operating system in use
- What is the custodian’s email address
- Custodian documents – can they be stored locally? Or must they be saved on a server share? Here it is critical that you understand whether the custodian can write/store files to his/her local drive (as compared to whether the Company discourages it)?
Interviews with custodians are critically important. Aim to understand the practice of each individual – how and where they store their emails/e-docs.
- Other Devices –
- Does the custodian have their own mobile device/tablet?
- Is it company issued?
- Is it used at all for work purposes?
You must likewise explore the specifics of each device upon which work related tasks were performed.
The more detailed of a map you can create, the more informed you will be when trying to scope your project and assess the various electronic information that you may need to collect.