By Barry Schwartz, Esq.
Data breaches occur, unfortunately, almost daily. When discovered, it is expected there will be an increased stream of internal communications between employees at the affected company. It is unfortunate that Equifax, as reported by Kate Fazzini of CNBC on March 7, 2019, failed to preserve a significant source of the company’s post-incident posture and thinking: chat messages.
Because of that failure, the company is now facing even more intense scrutiny and potentially significant added costs through sanctions and other soft costs.
We have, for many years now, advised our clients – particularly when facing unexpected events such as a data breach, environmental accidents and other similar happenings – to inquire of their employees whether they use social media or chat apps, and if yes, did they discuss the event using those apps and, further, which apps were used.
The ask is done through either a custodian interview or use of a custodian questionnaire. That inquiry then leads the legal team to actively pursue preservation and collection of data from those locations/resources. Contemporaneous discussions about an untoward event are very rich in thought and prescient regarding what happened, indicating the first take on how the company will proceed in responding to the event, particularly when the discussions are among those most involved with developing the matter.
It should go without saying that all likely relevant data – including chat and social messaging – should be preserved. From an eDiscovery cost perspective, preservation (and collection) is the least costly portion of the process. And, further, an appropriate legal hold should be issued virtually immediately whenever there is such a high-profile event. It is unreasonable to assume that such events will not lead to litigation. That is the test: “reasonably anticipated” that litigation will occur.
In today’s environment, all attorneys should be cognizant of all technology resources and data sources available for communications use and advise clients that they are fair game and subject to preservation in any matter. And, if not aware, they should retain the services of a knowledgeable vendor who can also advise and assist in data location identification and collection.