Tip of the Day: Take your CIO to lunch and discuss how IT would respond if your Website were subject to a Lit Hold.
Over the past few months, we’ve had similar conversations with many of our customers and prospects. It starts out something like this:
Customer: “We need a solution for archiving our social media, blogs, etc for legal or compliance purposes.”
Us: “Great. We can help with that. How are you archiving your website?”
Customer: “Oh, we don’t have to worry about that. Our IT department backs up our website.”
This week the conversation took a slightly different turn. The IT team from a large hospital system called us. They described spending a lot of time and resources responding to requests from legal. Yes, they have a technical back-up, but it’s not the same as an archive.
IT departments typically maintain technical back-ups for disaster recovery purposes. Notice the phrase “disaster recovery” because these systems are designed to restore a system or platform in an emergency situation. Most IT departments do not have the capability to respond to records requests related to historical web content without incurring long delays and tremendous costs–assuming recovery is even possible.
Websites are often created using multiple technology platforms. Frequent upgrades and changes to the underlying technology make it difficult and expensive to “go back in time” to identify previous versions of a website. Additionally, your website likely contains links to other websites, the content of which may be relevant. Furthermore, in many large corporations, third-parties such as ad agencies and PR firms, post information from their own servers or CMS systems on behalf of their clients. This increases the amount of effort and reduces the likelihood of getting a complete record of your website content.
A recent survey by the Deloitte Forensic Center found that only 23 percent of IT respondents with an opinion said their legal department understands very well the limits of what IT can do to support e-discovery. Coincidentally, only 23 percent of those who work in compliance, risk assessment or the legal department, and who have an opinion, say their IT department understands legal requirements for e-discovery very well.
So, now what?
We encourage you to proactively partner with your IT team to understand their capabilities and their limitations in regards to e-discovery requests, including the time and money that would be required to produce website content. Walk through some hypothetical scenarios, such as:
1) If your website content was subject to a litigation hold, what is the process (and related costs) to maintain the content of the site exactly as it exists today, including all related content (off-site links, materials available for download, etc.)?
2) If you become involved in litigation and need to prove that a particular topic was or was not discussed on your website at any point over the past year, could IT provide the data to address both scenarios? Would their data include all related content (off-site links, materials available for download)? How long would it take? What would it cost?
3) Assuming IT can provide the content, the next question to explore is what format will it be in? Is it defensible and forensically sound? Could you prove it hadn’t been altered? Is it searchable?
How we can help.
Our application, Cloud Preservation, is an easy and low-cost way to ensure that you can address these scenarios, avoiding high costs, potential delays that can result in costly sanctions, or worse, an adverse inference ruling. Take for example, Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc., in which the court found that the defendants failed to produce relevant web content.
The added value with a searchable archive is the ability to quickly research your entire web presence, which can be particularly onerous for large corporations that have multiple product lines or international sites.
One client shared the unpleasant experience of finding out during a deposition–in case where the company was being sued for a failure to warn–that their foreign subsidiary had a document on their website that directly contradicted their position in U.S. Courts. That alone should warrant taking your CIO to lunch.