30 Jun 2014

The Growing Importance of Defensible Data Deletion

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expert viewpointBy: Mike Hamilton, J.D.

Despite decreasing storage costs, organizations are beginning to realize that there is nothing cheap about holding on to the exploding amounts of data. When information assets that could have been forever deleted are determined to be responsive to litigation, the cost of keeping them can skyrocket. Furthermore, with the growing amount of data being produced and new sources continually emerging (smartphones, social media, etc.), preserving, collecting, and reviewing data for e-discovery purposes is only becoming more expensive and time-consuming. More and more organizations are looking for ways to defensibly delete data to help limit these costs.

Richard Vestuto, Director of Discovery at Deloitte Transactions and Business Analytics LLP, is an experienced consultant in e-discovery, providing insight, leading practices guidance and technology-based litigation and data retention strategies to corporate and law-firm clients. Richard recently presented on Exterro and Deloitte’s webcast, “Reality Check: You CAN Defensibly Delete Data.” I had the chance to speak with Richard about the tremendous value defensible deletion may present organizations.

Mike Hamilton: This past year there seems to be gigantic emphasis on information governance and the effects it can have on e-discovery. Why do you think this topic has emerged?

Photo: Mike Hamilton

Mike Hamilton, J.D.

Richard Vestuto: I think there are a number of factors. First, the variety, volume and velocity of data creation has exploded. Perhaps more importantly, government regulators (such as FINRA) are getting serious about enforcing compliance.

Mike Hamilton: ‘Defensible data deletion’ has emerged as a popular term in e-discovery and information governance circles. What is it and why is it so important?

Richard Vestuto: Defensible Disposition (DD) is really a key component of the Information Lifecycle Management (ILM) ecosystem that includes Enterprise Content Management (ECM) and Enterprise Information Archiving (EIA), Electronic Discovery, etc. DD is an approach that can be taken to help address the exploding data volumes and the associated risks and cost. It is the process by which an organization can weave through the tangled web of regulations. Legal holds, business needs, etc., to target electronically stored information (ESI) which has outlived its usefulness.

Mike Hamilton: How can organizations actually apply defensible disposition practices?

Richard Vestuto: Utilizing internal resources alone may not be sufficient. I think a well-respected and experienced third party should be teamed with outside counsel as the catalysts and the arbiter between the internal stakeholders.

Mike Hamilton: Most attorneys are risk adverse and tend to hang on to data to prevent the possibility of spoliation sanctions. Is this the right approach? If not, what techniques can attorneys use to ensure responsive information is not deleted?

Rich Vestuto

Richard Vestuto, Esq.

Richard Vestuto: Luckily, I see that tide turning, at least with inside counsel. As many attorneys become more aligned with the realities (and perhaps burned by enormous discovery costs), they are often more open to DD. According to a 2011 ESG survey with corporate counsel in organizations with 500 or more employees, the most important priority facing internal e-discovery is working more closely with IT and records management to defensibly expire data more consistently.

On-Demand Webcast & Five-Minute Video on Defensible Deletion

To learn more from Richard about defensible deletion and the key role it plays throughout the e-discovery and information governance process, watch Exterro and Deloitte’s complimentary webcast, “Reality Check: You CAN Defensibly Delete Data.” You can also access a five-minute overview on the topic here.

This publication contains general information only and Deloitte is not, by means of this publication, rendering accounting, business, financial, investment, legal, tax, or other professional advice or services. This publication is not a substitute for such professional advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified professional advisor. As a non-legal service provider, Deloitte’s discovery services are provided under the direction and supervision of its client’s legal counsel. Deloitte shall not be responsible for any loss sustained by any person who relies on this publication.

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