By Joe Skalski
that we’re well into the new work-from-home (WFH) norm, FRONTEO has been
thinking about data preservation and spoliation.
we are all adapting to the new norm, there is little knowledge about how courts
will view these unprecedented times down the road. Companies with precise
retention plans and other documentation in place regarding proper preservation
for the newly minted WFH employee will likely fare better than employers that
simply shifted to allow workers to work remotely without the proper
technological safety nets, policies, and procedures. Pleading ignorance or making the argument
that “we didn’t have time to develop a policy” likely will not be viewed
employers scrambled to facilitate WFH because there was not sufficient time to
properly scope and map out the migration. Many CTOs, CIOs and IT staff worked
around the clock to provide their employees every opportunity to be successful
at home while balancing risk. Progress was quickly made because many of these
technology professionals understood that their respective businesses would come
to a grinding halt if their employees could not work from home.
have been more detailed than others, especially those that already allowed WFH
or supported remote employees. Others
were forced to start from scratch, developing protocols on the fly, while
supporting this new norm.
third group of employers that did not possess the proper technology or
infrastructure, simply told employees with a laptop and a home Wi-Fi connection
to go forth and conquer. Many employees
that went to their offices on a Friday, started working from the kitchen table
the following Monday. They became painfully aware of the internet bandwidth
limitations of their home internet service while they were learning how to not get
Zoom-Bombed. Data preservation and
spoliation was not even on their list.
with all that in mind, let us quickly revisit what defines spoliation. According to FRCP Rule 37, in order for spoliation
to occur, the following conditions apply:
a party must have
had control over potentially relevant ESI
the party must have
been under a duty to preserve that ESI
the ESI must have
been lost, destroyed, modified, or altered
the loss must be due
to the party’s failure to take reasonable steps to preserve the ESI
the ESI must not be
able to be restored, recovered, or replaced through additional discovery
There are several ways in which spoliation can occur, whether intentionally or
emails, messages, or other information
throwing away a
computer, tablet, phone, or other device
you see any bullet points above that might be magnified in the new norm? Yikes! We do, too.
the past, many employees did not need to think about preservation. They knew
that, somewhere in the background, all of the documents that they created on
their company-issued device were maintained on some server, somewhere.
depending on whether or not an employee is connecting to their company’s
network, the content they are creating while WFH may reside solely on the
laptop they are now using at home. Not
only is this in issue for preservation, it is also an issue of ensuring against
what are some possible suggestions to avoid inadvertent spoliation?
First, double check
with your employer to determine if they have deployed new / modified retention
plans relating specifically to WFH employees. If there were newly developed or
modified plans, you’d likely have been notified. These policies may be getting updated daily
or weekly, so knowing what the current policy is will help you support the
proper preservation mindset.
Second, inquire what
data storage resources your employer has provided you for secure storage. See if you are still connected to your
company’s network. Make sure that what
you are working on at home is being replicated there.
Third, as part of
many licenses to O365, OneDrive is included. This is especially important for remote
workers saving directly to and only to their laptops. Make it a habit to back this data up if
you’re not connected in some way to your company’s network where the normal
backup process occurs.
And while we anticipate some lasting long-term impacts, we are guiding our clients through the shorter-term ones. We are transparent about how we have securely adapted our service offerings to be shelter-in-place compliant, from our managed document review to forensic collections capabilities – including remote collection of mobile device data. We continue to work together with our clients, to proactively adapt to a new norm.
About the author: Joe Skalski is the Senior Director of Engagement Management at FRONTEO. With nearly 21 years’ experience in legal process outsourcing and e-discovery, he has worked on some of the largest and most heavily contested e-discovery matters to date.