Smart staff aware of e- discovery, digital data

Get a handle and it’s not Twitter. It’s time to get a grip on Information Governance. Information Governance is multi – faceted and includes E- Discovery, Cyber-hacking/ threats, Document Retention, both cloud and paper-based and Compliance.

The discovery of documents or digital data is especially valuable in litigation, in a disciplinary hearing, in investigations and in adhering to corporate governance. E – Discovery includes electronic communications – ranging from e-mails, electronic memorandums / communiques /documents (both internal and external), text messages and communications via social media.

E – data will and should form part of a Discovery request. It is best to anticipate this. Mitigate loopholes and be alert that data deletion can hinder a successful case. It is important to be alert on how, where and on what device (including BYOD) or system e-data is stored, automatic retention periods and company policy on retention as well as legal and regulatory requirements.

Deleted and non- deleted text/ e –mail messages:
In as much as it is easy to text or e-mail colleagues, clients and pretty much anyone who you work with and or wish to work with, it is easy to delete the text or e-mail.

Be aware, deleted texts or e-mail may be retrievable and are useful e- discovery material. A sound grasp of what constitutes use in the ordinary course of business will assist in streamlining requests for these forms of e-data. Predictive coding and assisted review technologies will also streamline data searches.

At the same time be mindful of the rules of evidence in the Civil Proceedings Evidence Act No. 25 of 1965, the Criminal Procedure Act No. 51 of 1977 and the Electronic Communications and Transactions Act 25 of 2002. Knowledge of the law of evidence is indispensable, especially with regard to admissibility, authenticity and subpoenas, including operator and service company directed subpoenas.

Ensure that you have a firm grasp of forensic investigative technological tools and methods to identify subverted e-data. In addition, consider cloud based discovery holds for different geographic users. Cloud based holds offer real time immediate access for potential e-data.

This prevents duplication exercises and is cautionary exercise for high risk potential liability e-data. As smart companies do and even smarter General Counsel’s do, create a policy and educate your company and it’s employees.

First published in Business Day, Business Law and Tax Review: 11 November 2013.