eDiscovery in O365 is Easy, But Still Best Left to the Experts

By Sean King, Chief Operations Officer

I admit it. I do my own taxes.  I like the control I have in organizing my finances and filling out a ridiculously complex set of forms and fields. Honestly, I do my own taxes because the software that is available makes completing it much easier. But despite the “risk meter” shown by the software, every year after I complete the process and triple-check all of my information, I never feel confident I did it 100 percent correctly. I worry about the potential for an audit and the stiff penalties that accompany a failed audit.

A lot of technology that has rolled out in the last few years takes complex tasks and reduces them to everyday functions. With cloud-based solutions like Office 365, management of a company’s email and legal functions that relate to data management and information governance are becoming routine. As someone who has spent his career working with and around legal professionals, I wonder whether we realize the potential legal risk that presents.

Recently I moderated an RVM webinar, Office 365 – The Unseen Legal Risks, where we elaborated on some of those risks inherent in the implementation and use of Office 365. There is an expectation of compliance, process, and collaboration that has greatly expanded over the years as new technology, such as predictive coding and technology-assisted review (TAR), has become more acceptable in the mainstream, as noted in court opinions from matters like Moore v. Publicis Groupe (287 F.R.D 182 (S.D.N.Y. 2012) or in Winfield v. City of New York, 2017 US. Dist. LEXIS 194413 (S.D.N.Y. Nov 27, 2017) where Judge Parker directed the City to use TAR instead of linear review. This trend is further complicated by cloud-based systems like Office 365.

As you may be aware, the heavy lifting in completing personal income taxes is the overall questionnaire. During this stage you enter in your family information, where you live, your W2 data, investments, etc. If you read or interpret the question wrong, the best tax calculator in the world won’t be able to help you.

Same thing with Office 365.

In Office 365, you need to create your rules and establish how your data will look. Companies who choose to go with an “out of the box” setup in their application may get a nasty surprise when it comes time to pull data for an investigation. One such example we learned about was how long Microsoft will store data. Your company policy may be to keep emails for one year, but if you’re not aware of your settings, you could be responsible for producing emails going back much farther.

There are other legal concerns as well, using a product that proudly associates with “the cloud,” which suggests that the data is in an unknown location. This could present jurisdictional concerns or GDPR compliance issues, as your responsibility for producing data or protecting privacy may hinge on the country or region in which your data is being stored. Just because your data is not in the United States does not protect it from the U.S. courts, and being an American company does not mean that your U.K.-based data is exempt from GDPR compliance.

Another important concern is whether like me and my taxes, companies are performing tasks that are perhaps best left to certified professionals. Typically, a company that receives a document request or subpoena will engage in a process overseen by a lawyer or outside counsel. But, with Office 365, it becomes easy for a company to bypass much of that process, believing that the risk is low. But, is that enough? What if I misinterpret or do not understand the function of search or analytics in O365 and do not get the right results?  Will I even know if it is right?  Do I know what O365 is NOT giving me, and should?  While it may seem easy, it may not be done correctly to meet discovery or evidentiary requirements.

RVM has written in the past about self-collection and the risks that it can entail. The logical interface and robust nature of O365 could lead even more companies down a road that we previously described as similar to driving with too little insurance: it may save in the short run, but in the long-term you’ll likely end up paying more.

Finally, Office 365 gives companies the ability to analyze and review documents.  As a litigation support professional, I recognize the power and effectiveness of this kind of technology, as have the courts who have started encouraging the use of analytics during document review. But, in the hands of someone lacking the proper training, such a tool becomes highly ineffective, resulting in potentially deficient production that can negatively impact summary judgments. The key question as we learned from Allan Johnson, from Actium LLP, was whether you are able to speak to the results you achieved and the process used to get those results. The best way to guarantee that is to ask about your O365 environment from your IT person or consultant and work with an experienced forensics professional familiar with O365.

We as professionals have a requirement and a duty to understand the technology that we use every day. I am concerned by the lack of understanding that companies exhibit about their Office 365 licensing, functionality, setup, and workflows. The courts will not accept ignorance as a legitimate rationalization for failing to meet the standards of legal competence, and most companies cannot afford the fallout from a negative ruling.

Doing your taxes on your own might be one thing, letting anyone do email collection and export might be a level of risk we should not take for granted.

 

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