In today’s corporate environment, in-house legal teams are rapidly creating and allocating exponential amounts of information. While a fluid exchange of ideas is essential, the records in which those ideas appear are becoming more complex. As organizations routinely share that data with a law firm or a legal vendor, or transfer it to a new repository within the company, they must address the inherent challenges of data migration.[1]
While data migration simply involves moving files from one location to another, each conveyance presents varying levels of complexity. Whether transferring a file from a flash drive to a computer, or synchronizing a local hard drive to a corporate network, between networks or throughout various databases, the migration method matters.
The act of relocating information is often one component in a larger endeavor. Since many professionals are unfamiliar with acceptable transfer practices, it is essential to plan properly, as well as to manage the process efficiently and effectively.[2]
The Importance Of Proper Data Migration In Discovery
Modern discovery is a highly scrutinized activity, with casebooks dedicated to its pitfalls.[3] And, electronic discovery is so critical to litigation fairness that legal teams must participate in a mandated “meet and confer” discussion to address the preservation and exchange of electronically stored information, including the form of production.[4]
Consequently, if legal teams provide assurances at the outset regarding the format, volume, location, and complexity of their information, among other characteristics, and fail to account for the impact or cost of its migration, they may adversely affect their position. They could also suffer penalties for frustrating the court and the process.[5]
Motivations For Data Migration
A variety of factors are actually influencing the momentum toward holistic business processes that are affecting the fundamental nature of litigation. These include:
- Technology upgrades. Many organizations are moving data from old platforms to newer locations.[6]
- Increased influence of business processes. With an increasing emphasis on data management as a business process, many companies are trying to consolidate their information into a central repository for ease of reference, search, and retrieval. Organizations are recognizing the need to treat data for e-discovery as an enterprise-wide information management issue.[7]
- Globalization. Legal teams must demonstrate a full understanding of the entire data landscape and comply with safe harbor provisions specifically created to allow the migration of information between jurisdictions. Data privacy and linguistic or cultural challenges associated with migration are important considerations.
- Legal/IT language barriers. An independent arbiter of information can often provide the balance necessary to seamlessly move files from one repository to another.
- The rise of the cloud. As lawyers become increasingly comfortable transferring records in the cloud,[8] they must be aware of the inherent risks and consequences.
- Dissatisfaction with law firm/vendor. Technology and changing attitudes mean that clients dissatisfied with their outside counsel or vendor are more comfortable switching proactively.
Recognizing The Catalysts And Risks: The Recovering Market
As the economy continues to strengthen, the dynamic nature of the attorney-client relationship, more efficient in-house operations, and advancements in judicial awareness are driving data management changes.
Because information is easier to exchange, corporate clients are more likely to switch law firm and e-discovery vendors more quickly for specific matters, and they feel empowered to assume greater control of their recordkeeping. Since many corporate law departments now maintain their critical information behind a firewall, they are migrating data on a consistent basis, which materially raises the risk. To minimize that risk, in-house lawyers are streamlining their operations, motivating IT teams to help their counterparts in legal to consolidate their data. They are also making improvements in the way they access and produce information throughout the enterprise, with a particular focus on records subject to a legal hold.
These improvements are essential because courts have universally raised their expectations of litigants’ sophistication regarding data management.[9] Once judges begin to recognize the importance of any material issue, there are few excuses available to even the most inexperienced lawyers who appear before them.
The Risks
Failure to properly transfer data between platforms or locations could result in long-term damage that an organization does not appreciate until it is too late to repair. Additionally, leaving highly sensitive corporate material in the hands of multiple and varied law firms, and thus subject to different security practices, increases risk exponentially.[10]
In addition to mergers, acquisitions, and corporate restructuring, factors that are fueling a migration boom and magnifying risk include:
- Big Data, the diversity of that data, and its ultimate fragility,[11] prompting some institutions to move their data every few years.[12]
- The ubiquity of new mobile tools that make it easy for users to transfer corporate information to and from their personal equipment.
- Parallel access to multiple operating systems (e.g., Mac OS and Windows).
- Corrupt or improperly migrated data, missing information, erroneous relocation, delay, or metadata deficiencies could result in sanctions.
In an environment where high-stakes litigation and voluminous records management projects are increasingly common, it is essential to develop accurate estimates for the duration and cost of data transfers of any material size. Also, senior-level support for more global data management procedures is important to ensure continued trust in and acceptance of the system.
Migration Best Practices
Study the source. Recognize where information exists throughout the corporate landscape: whether it is available locally, via the cloud, or on a server maintained in another jurisdiction can make a difference, especially if it is overseas. Tailor your transport tactics to maximize speed of the transfer while minimizing complications. Carefully evaluate and address encryption concerns, and make sure all parties involved in a data migration exercise understand the source and destination for the material.
When making these preliminary determinations, take the opportunity to defensively discard duplicate or unnecessary data, and set strict time frames for migration to ensure continuity and accuracy on an integrated schedule, so your team can assess whether you can accomplish the task at once or in stages.
Make a checklist of essential elements. Start the migration process by creating a list of essential elements related to the source hardware and the data it contains, as well as the purpose of the transfer. Include any unique aspects of the case at issue and idiosyncrasies associated with the target environment.
Monitor data corruption throughout the entire process. Legal teams should ensure that the source data is free of any virus or potentially harmful coding, and that the target repository is equally uncontaminated.
Confirm that all metadata fields from the source set of records match the target. These may include key details related to attorney notes or ordinary contact numbers, and could warrant multiple levels of review if the metadata fields are inconsistent. Also, confirm the complete transfer of information and study issue tags, as well as any production history, among other items, to prepare the data in a format that the recipient will be able to utilize.
Once you have completed your efforts, schedule a planning discussion during which both the sender and recipient of the information reveal the details of the migration and confirm their respective responsibilities.
Consider the recipient. From the recipient’s perspective, it is critical for those administering the migration to follow key protocols to interpret the data properly. Take the time to understand whether the sender’s data structure is a widely dispersed collection of unique systems, or a highly centralized common framework. Also, become familiar with the new platform on which the data will reside. That familiarity will help to properly audit the transfer and evaluate its completeness. This step is critical because it is easier to eliminate extraneous information than to search for missing items.
Creating A Business Process
In transforming your organization from a reactive e-discovery-centric team into a proactive information governance-focused enterprise, you must first assess how you collect your information and identify where most of it resides. Data collection is no longer a science of simply retrieving files from custodian-controlled cabinets in an office or a warehouse. Now, it is much more of an art in recognizing the business elements of the most relevant data in any forum and from any location. Instead of collecting every piece of data, business teams want to find the most critical records in the shortest amount of time, and they seek a vendor relationship that enables the reuse of their legal and data collection investment.
In the middle of a litigation or investigation, timing, planning and execution become critical. A successful migration in the middle of a litigation or investigation requires exceptionally detailed planning. Too many things can go wrong, and it is incumbent on all parties to work together to anticipate the process. Gauge the level of experience that each team member has and encourage a robust exchange of ideas prior to finalizing a plan of action. Review the background on prior migrations and identify clear areas for improvement to strengthen your current effort. Consider changing the way individuals maintain their records and the manner in which the enterprise does the same. Simply addressing the issue of information hygiene tends to spark a conversation that yields improvements and lays the groundwork for collaboration between legal and IT.
Conclusion
As electronic discovery evolves into a business process, the art of migrating data is transforming the entire enterprise. To accelerate that transformation, you must recognize where improvements are necessary, how to make them, and how to gauge their impact.
In e-discovery, the process of data migration is not a matter of simply inserting a flash drive into a USB port and dragging files on to that storage device. The key to optimizing data migration is proactive planning, which allows legal teams to execute a more efficient and error-free process than their peers. Those teams that adhere to the assurances they provide at the outset of a case tend to work more effectively with their adversary and receive fair treatment from the court.
[1] See Milberg LLP, Hausfeld LLP, "E-Discovery Today: The Fault Lies Not in Our Rules," 4 Fed. Cts. L. Rev. 131, 133 (2011)(“[E]lectronic discovery has brought about new levels of accountability in litigation. However, rather than being heralded, electronic discovery is relentlessly criticized, undermined by oft-repeated hyperbole, and rejected as a scourge by many practitioners and clients who refuse to take adequate responsibility for management of their information.”)
[2] See, e.g., Westlaw Lawprac Index, "Failure to Use Partition Alignment, Virtualization: Backup/Recovery Firm Says Many PC Users are Remiss in Protecting Data," 29 No. 18 Law. PC 9 (June 2012) (Fifteen percent of those who back up their data reported storing their backup files on the same drive that hosts the stored info.)
[3] See, e.g., Roger S. Haydock, Jeffrey W. Stempel, David F. Herr, Fundamentals of Pretrial Litigation, 8th Ed. (American Casebooks, 2011).
[4] Fed. R. Civ. P. 26(f).
[5] See, e.g., Logtale, Ltd. v. IKOR, Inc., No. C-11-05452 CW (DMR), 2013 WL 3967750 (N.D. Cal. July 31, 2013) (The court also granted in part Plaintiff’s request for sanctions and awarded Plaintiff $5,200 in attorneys’ fees “incurred as a result of Defendants’ conduct,” “at least half” of which was to be paid by the parties, who the court observed were "at least partly responsible for the numerous delays in producing the requested documents.”)
[6] Julie Bort, "Tech Trends That Will Make Someone Billions of Dollars Next Year," December 3, 2012. http://www.businessinsider.com/billion-dollar-tech-trends-2012-11?op=1#i... (“Companies are ready to upgrade to all the latest new tech. And consumers are opening up their wallets for smartphones, tablets and apps.”)
[7] Barry Murphy, "Managing eDiscovery As Another Business Process," eDiscovery Journal, May 5, 2011 (“From a market perspective, the reality is that eDiscovery is recognized as a major component of information governance.”) http://ediscoveryjournal.com/2011/05/managing-ediscovery-as-another-busi...
[8] Joe Dysart, "The Trouble With Terabytes: As Bulging Client Data Heads for the Cloud, Law Firms Ready for a Storm," A.B.A. J. 32, 36 (April 2011) (describing how the migration to cloud servers may engender an ethical responsibility to quote chapter and verse to clients about the special data vulnerabilities inherent in the cloud).
[9] Starbucks Corp. v. APT Sec. Services, Inc., 2009 WL 4730798 at *6 (W.D.Wash., 2009) (Courts are increasingly in disbelief, and have reacted accordingly, when a technologically sophisticated party makes claims of “not reasonably accessible.”)
[10] Daniel B. Garrie, Esq. & Daniel K. Gelb, Esq., "E-Discovery in Criminal Cases: A Need for Specific Rules," 43 Suffolk U. L. Rev. 393, 404 (2010)(“ E-discovery is especially fertile ground for motions to suppress because ESI is dynamic and can be fragile, so its mishandling may unlawfully interfere with a defense.")
[11] See, e.g., "Bit Rot," The Economist (April 28, 2012). http://www.economist.com/node/21553445
[12] "History Flushed," The Economist (April 28, 2012) (“Many archives replace their data-storage systems every three to five years to guard against obsolescence and decay. This is not as expensive as it sounds: hard drives are cheap and reliable.”) http://www.economist.com/node/21553410
Published November 18, 2013.
