Legal Actions

Sometimes the organizations we work for have some sort of legal obligation. Maybe there's some sort of legal action or legal lawsuit against them, and we have to turn over some documentation, or we have to do what's known as a discovery.

There is legal obligations that we have. Some of it is due to laws and regulations, but there are other legal actions that we have to comply to that fall outside of that. What I mean by that is that we may have set up agreements with customers, partners or vendors, and one of the parties might have fallen through with their side of the agreement, and then that can go into a lawsuit or some sort of mation, some way to resolve that disagreement or that breaking of the agreement, breaking of the contract. And so that's where legal actions comes into play.

A scenario

So let's talk about some legal considerations around these legal actions. Let's generate a little scenario here so that way we can better understand these concepts.

Let's say we have a company and they need some artwork for a project that they're doing that they want to add this artwork to. So what they do is they go and find an artist that's going to generate this artwork, and that artist does, and gives the company a digital reprint for the project. But they also have taken that digital reprint and they've used it on other projects as well. This company doesn't like that, because they thought they were buying a specific piece of artwork for this project that they're working on, and that that artwork couldn't be used for anything else. Whereas the artist said that they got permission from the company to use it on other projects.

During this process we need to discover where the miscommunication went wrong, and who's in the right and who's in the wrong.

Discovery and e-discovery

So one thing that will happen is something called discovery. Discovery is taking all of the information and discovering all of the communication that has happened back and forth between these two entities, to figure out what exactly is the truth. Is the company correct in saying that they have the sole rights and ownership over the artwork, or is the artist right, saying that the company gave permission for this artist to use it on other projects?

E-discovery is the same thing, it's just an electronic form. So they're going to go back and look at not just a physical copy of things, but also all of the electronic copies — that's the E right there. So we're talking about email, maybe some sort of digital documents, maybe it's some sort of conversation they've had through SMS or instant messaging or one of those services.

What e-discovery is going to do is take a look at all of the different areas and locations and try to find where it is that this communication is going to be at. So we're going to look at servers, we're going to look at databases, we're going to look at removable media, we're going to look at file shares, we're going to look on computers. We're going to look at all of those places to make sure that we find all of the communication that happened between these two entities. And so that's part of e-discovery.

How far do you have to go?

Now the question is, how far do you go to find this data? For instance, this company could be huge and there could be thousands of employees. Are we going to go and search all of these employees' laptops to see if communication happened between these two entities? We would be exploring a lot of different employees' laptops that aren't even part of this project, that were never in the discussion. Does that make sense or not?

So there's a level of e-discovery that we would have to go to. And how far is that? Well, the problem is that the action that we take is a little subjective. One person may say, well, this is how far you need to go, and maybe the artist says, well, you need to search everything.

There's a reasonable expectation of the company to do what's called due care. Due care is essentially what is going to be a reasonable action, what the court is going to see as a reasonable action. And since everybody's going to determine what is reasonable action differently, what we're going to do is assume what does the general populace say is going to be reasonable action. So you might have some people that are going to say, well, you need to do everything, and you might have a few other people that say, well, you don't need to do anything. But the general population here might say, well, this is the level that would be acceptable. And so that is going to be what's considered due care.

There's also this term called due diligence. Due diligence is the prep work for due care. So think about this: due diligence will be the checklist that we end up creating. So we're going to start establishing where it is that we're going to research, we're going to start exploring and thinking through. Maybe we get a whole team of people together into a room and say, well, we need to search the email servers, we need to search these directories, we need to search all of these computers, these employees' computers, we need to search all of these for the e-discovery. So that's due diligence, is setting up what it is that we're going to do, and doing the research to figure out what it is that we have to do the search on. And then the due care is that carrying out of all of those. So we've set up the checklist; now the due care takes place, where we're actually checking it off the list and making sure that we do all of that.

Legal hold

Now one of the problems is some of these systems are quite dynamic — that is, they're constantly changing. Maybe there's a file share and things are constantly being deleted and added to this file share. Same thing with databases or servers, or maybe somebody's laptop: we're constantly changing our documents. Now the problem is some of these legal actions can take a long time, so it could be a while before we even get to the e-discovery part, or it could take a while before we actually get into the litigation.

So what can happen is that initially we put some sort of legal hold or legal litigation hold on the data. What this does is the company then has to put essentially a freeze on some of the data. So since some of these sources are quite dynamic, maybe we do a backup copy, and so then we create a backup copy of these so we can do an e-discovery later on on it. Or perhaps we just notify certain employees: don't change anything on your laptop, don't delete anything.

And what this does is it protects really both parties, so that way critical information is not getting deleted and there's no coverups that are happening. So a legal hold or litigation hold is something that can be put on this to make sure that one of the entities doesn't start deleting data that is necessary for this lawsuit or for this legal action.

Now let's say in our scenario that it was just a miscommunication, and this artist misinterpreted one of the messages, and before it ever went to the courts, maybe the artist said, oh yeah, sorry, that was my mistake. So what I'm going to do is I'm going to recreate a new piece of artwork, an even better one.