Law Technology Today From the ABA Legal Technology Resource Center
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With Google’s recent announcement that its Google Plus service will shut down in April, it becomes the largest social media network, with more than 395 million active accounts, to close permanently.
The shuttering of the eight-year-old service means that users will lose access to their data, posts they’ve created, comments, photos, event invites and group chats. Google itself is under no obligation to hold onto users’ data, and it has given everybody ample notice, roughly six months, before shutting down Google Plus.
For individuals who want to preserve their data, Google has made it relatively simple, offering a download option. However, not all users will realize this and act soon enough, if they even consider their data to be of great enough value to hold on to.
A problem for employers
And that’s where it can get problematic for employers. It’s not uncommon for businesses of a certain size to be involved in litigation on a fairly regular basis, and each case can require data from multiple custodians (employees or others with access to company data) located around the globe. If a company is in the midst of litigation or has reason to expect that it will be involved in litigation in the near future, it has an obligation to preserve any data that could be relevant to the case.
If a litigant ignores the obligation to preserve data, there’s a risk of sanctions from the court, as well as a monetary fine. Obviously, it’s also in a company’s best interests to preserve data, especially if it can make the difference between winning or losing a case.
This isn’t just an issue for Google Plus users, it’s potentially a problem for users of any software that’s being phased out, or “sunset.” And unlike Google Plus, the data contained in other software platforms or saved on dated backup formats isn’t always as easy to capture and preserve.
For example, relevant data might be contained on obsolete zip or floppy discs that can’t be read by modern machines, or it may be on backup tapes that have experienced deterioration. A few years ago, my company encountered a situation with a client where the only way to preserve its data was by using a near-extinct device. We ultimately found the device on display in a museum.
Managing the problem
When companies have hundreds or thousands of employees, the possibility of losing relevant data in a case becomes exponentially more complex. Despite many companies having established protocols for internal communications, it’s practically impossible to monitor conversations that employees might be having using other outside means, or what they might be posting in their private social media feeds.
The history of technology makes one thing clear: Every piece of software and every cloud platform being used today will eventually become obsolete, some sooner than others, so the only way to truly manage the problem is for companies to establish a consistent process for managing legal holds in which any potentially relevant data is preserved for expected litigation.
Company IT departments should begin by mapping the data contained across their entire network and taking steps to preserve anything that’s relevant to a current or expected legal matter. This process should include asking each custodian about their level of utilization of Google Plus, as well as other software.
Standardizing workflows
Because of their fear of losing something important, some companies make the mistake of preserving every piece of data, which eventually creates an untenable situation. Costs of maintaining the data gradually increase, and the company opens itself up to additional risks involving security and spoliation.
That’s why it’s important for organizations to establish clear, standardized workflows and protocols from the start to ensure that all legal discovery requirements are being met on a continuing basis, while keeping unneeded data from being constantly collected and preserved in perpetuity.
Relevant data might not be contained solely on internal servers, it can be in text messages, social media, video files, personal emails and cloud accounts. Companies should make sure their plan includes regular monitoring by IT departments for any software or platforms that might be sunsetting in the near future.
Once any relevant data is collected, companies should make sure that the storage platform used is legally defensible, meaning that the data and its key attributes (referred to as metadata) cannot be altered in any way. By establishing a centralized repository from which data can be culled and sent on for legal review, they eliminate the need to re-collect data every time there’s a potential legal need.
Although Google Plus might be a necessary starting point for companies to begin thinking about data preservation given the looming deadline, the process shouldn’t end there. By putting in place a consistent, regular data management process across a company, the risk of surprises in the future greatly decreases, while providing consistent results and lowering costs.
