Do you know what data is discoverable?
If you’re an IT practitioner seeking to roll out unified communications, you probably have a lot on your mind. You’ll need to think about which functions you want to roll out first; which vendors and products you’ll consider “strategic,” and how to accurately capture requirements from users who may not be at all clear on what UC is.
Litigation is probably the last thing you’re thinking about. But it shouldn’t be. Unified communications creates unique challenges for companies embroiled in legal actions (and remember, any company can be sued). Particularly during this economic downturn, many organizations can expect an increase in litigation, since it’s often tied to layoffs and benefit reduction. And the first thing that happens in most legal actions is “discovery”: a company is required to locate and produce all communications that may be relevant to the case. But what comprises a “communication” in this era of “unified” communications?
The rules of e-discovery as defined in the Federal Rules of Civil Procedure (FRCP) are clear that such requests require release of any electronically stored information (ESI). In the past discovery focused on “documents” and “data compilations.” This limited the scope of discovery to files and emails with rare inclusion of voicemail. Though voicemail has been discoverable since the 1970’s attorneys have successfully argued that a lack of metadata and lack of voicemail archiving makes voicemail not reasonably accessible. Today, the ESI definition is explicit and includes “sound recordings.” This means that voicemail is clearly discoverable whether it’s standalone or part of a UC solution.
Instant messages are also discoverable (one reason why many firms hesitate to deploy enterprise-wide IM solutions). Take it a step further, and you’ll need to consider video conferencing. Today, most video conferences aren’t recorded. But as that begins to become more of a standard practice, you’ll need to consider recorded video conferences as ESI. And don’t forget that the metadata on all communications is important and is a standard part of e-discovery.
There is a growing market of e-discovery vendors that support email, voicemail, IM and even video. Vendors include eDiscovery Tools, FaceTime, IBM, Kazeon, and Zylab. Before investing in such tools IT must first engage the legal team to discuss potential implications of eDiscovery and UC. Part of the discussion must be the creation and enforcement of consistent and justifiable retention policies and procedures for all ESI. For example, many organizations have differing retention policies for ESI; 30 days for voicemail and multi-year for email. Justification for a shorter voicemail retention is often disk space limitations and the argument that most voicemail is ephemeral. This type of retention plan can work with Unified Messaging but it requires a lot of upfront planning to make sure the system supports voicemail retention independent of email retention. Finally, as a last resort there is a safe harbor clause in FRCP for protection if requested ESI is no longer available. The safe harbor clause requires proof of industry best practice which is why it’s so critical to have justifiable, consistent, enforced and monitored ESI retention policies and procedures.
Unlike emails, though, without metadata it’s a very expensive proposition to search all recorded videos that may have been between Jane and John. Even if video recording is not standard procedure, there still needs to be metadata associated with each video conference session. Ideally, this metadata comes from a video scheduling system. In lieu of a video scheduling system there should be a process in place where all video sessions are logged by users.Nearly 40% of organizations have a policy to promote video conferencing. At this time few organizations are recording video conferencing. Video conference planners tell us that recordings are being requested, especially by people that might miss a conference and want to catch-up on what they missed. As soon as a video is recorded it now needs to enter a consistent and well thought-out retention policy.
