CODE42E - B O O K

Laying a Strong Foundation:Building your Legal Hold Process with Code42 CrashPlan

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Executive Summary

Part 2: Code42 Legal Hold—A Strong FoundationPreparing for eDiscovery

Universal Truth: Quality In = Quality Out

Code42 CrashPlan with eDiscovery tools

Code42 Legal Hold: A Solid Foundation for your eDiscovery Process

Code42 Supports Four Fundamental Factors of eDiscovery

Part 1: Legal Hold—A Shifting, Shaky EnvironmentThe eDiscovery Landscape

Legal Hold in the Eyes of IT & Counsel

Increasing eDiscovery Expectations—and Stakes

The eDiscovery Process Diagram: A Best Practice Blueprint

In-House eDiscovery: A Simpler, Stronger Strategy

How to Navigate this e-BookThis e-book is split into two parts. Part one discusses eDiscovery trends, best practices, headaches and workflows. Part two discusses how you

can leverage your endpoint backup from Code42 to simplify your eDiscovery process, bring legal hold activities in-house, cut IT and counsel costs,

and build a successful litigation discovery process on a solid foundation of relevant, authentic data. Use the clickable graphic below to navigate the

book, and begin laying the foundation of your stronger eDiscovery process.

Conclusion Glossary

To return to this navigation page at any time, click the arrow in the top left-hand corner of each page.

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Executive SummaryRapid changes in technology and software, and the nearly universal shift to electronically stored

information (ESI), has made eDiscovery more complex and expensive. In a movement to simplify and

standardize their procedures—and dissolve some of the extra tensions surrounding litigation—many

organizations are bringing phases of the eDiscovery process in house, in particular legal hold.

Among other benefits, Code42 eDiscovery simplifies legal hold management. Litigation preparation can

be a large task crossing over many departments, but will consistently feature two main players: Legal

and IT. This document focuses on those two groups, and aims to enable one to see the eDiscovery

world through the point of view of one group—or the other.

CODE42 DISCOVERY If you have Code42 CrashPlan for endpoint backup,

congratulations, your organization has already

automated the collection of user data, not only

for backup but also for legal hold. The ability to

preserve in place is a function that sits on top of your

enterprise data collection and protection tool. It is

completely operated from a web application that

enables litigation support personnel to access the

Code42 platform. ITINFORMATIONTECHNOLOGY

LEGALCOUNSEL

L

See how the other half views eDiscovery, and how “IT v. Legal” can become “IT & Legal”

with the help of Code42.

Code42 is platform-

agnostic, and can be

used and managed

by any team member,

regardless of

technical training.

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Part 1: Legal HoldA Shifting, Shaky Environment

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1. http://www.alixpartners.com/en/Publications/AllArticles/tabid/635/articleType/ArticleView/articleId/687/Litigation-and-Corporate-Compliance-Survey.aspx#sthash.9e3RHjrc.EXoNCbra.dpbs

2. http://www.bizjournals.com/kansascity/news/2014/04/21/companies-face-high-cost-litigation.html#g

3. http://www.protiviti.com/en-US/Documents/POV/POV-e-discovery-Protiviti.pdf

4. http://www.slideshare.net/morrisjd1/ediscovery-infographic

5. http://www.forbes.com/sites/wlf/2014/03/06/new-corporate-survey-illustrates-burdens-of-document-preservation-and-benefits-of-proposed-reform/

of companies face litigation1

89%of companies spent71%

IN 20132

>$1M

63%eDISCOVERY:

Total cost savingsfrom proactive

IN SAVINGS PER COMPANY PER YEAR5

3%

>$1M

reduction in employee time spent on legal hold means

on litigation expenses

25%eDISCOVERYoften consumes

of the total litigation budget3

4

of companies face litigation1

89%of companies spent71%

IN 20132

>$1M

63%eDISCOVERY:

Total cost savingsfrom proactive

IN SAVINGS PER COMPANY PER YEAR5

3%

>$1M

reduction in employee time spent on legal hold means

on litigation expenses

25%eDISCOVERYoften consumes

of the total litigation budget3

4

of companies face litigation1

89%of companies spent71%

IN 20132

>$1M

63%eDISCOVERY:

Total cost savingsfrom proactive

IN SAVINGS PER COMPANY PER YEAR5

3%

>$1M

reduction in employee time spent on legal hold means

on litigation expenses

25%eDISCOVERYoften consumes

of the total litigation budget3

4

of companies face litigation1

89%of companies spent71%

IN 20132

>$1M

63%eDISCOVERY:

Total cost savingsfrom proactive

IN SAVINGS PER COMPANY PER YEAR5

3%

>$1M

reduction in employee time spent on legal hold means

on litigation expenses

25%eDISCOVERYoften consumes

of the total litigation budget3

4

of companies face litigation1

89%of companies spent71%

IN 20132

>$1M

63%eDISCOVERY:

Total cost savingsfrom proactive

IN SAVINGS PER COMPANY PER YEAR5

3%

>$1M

reduction in employee time spent on legal hold means

on litigation expenses

25%eDISCOVERYoften consumes

of the total litigation budget3

4

The eDiscovery LandscapeThe modern eDiscovery landscape is shifting as justice systems

throughout the world adapt to swift technological change. Litigation

is on the rise, as is the amount of electronic evidence processed by

courts. eDiscovery is a complicated space that requires a unique skill

set. Some common best practices are followed, but it’s far from an

exact or standardized science. It is foggy, complex, time-consuming, expensive

and rife with potential for human error. As a result, most organizations maintain

a highly reactive process—addressing litigation as or after it arises, rather than

preparing for it in advance. This process is more painful, even more costly, and

never wins you favor in court.

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Legal Hold in the Eyes of IT Unless IT personnel are dedicated entirely to legal hold

processes, legal hold presents a disruption in their workday. It

is a laborious process that often requires physical collection of

employee devices or hard drives.

The sheer amount of ESI that must be preserved

during litigation results in substantial time and

cost and exposes the organization to serious

risks—including risk of accidental destruction of

data. While chief counsel is typically responsible

for a reasonable collection methodology, IT is

on the front line and must understand tools,

technology, data repositories, metadata and

chain of custody, user devices, user behaviors

and more.

Two Teams, Two PrioritiesIT prioritizes the logistics of legal hold: they’re required to

understand data repositories, server and mobile technology,

metadata, chain of custody and more.

Legal Hold in the Eyes of Counsel Before the legal hold process begins (and ideally before

litigation is threatened), counsel must understand where

information repositories exist within the company. Following

the “information governance phase,” counsel is

less concerned about collection tools and more

concerned about building a solid foundation for

their eDiscovery process.

Counsel understands the risk of sanctions for

untimely identification of custodians, delays in

implementing legal holds and omitting relevant

data sources from productions.

Counsel wants a reasonable process: they prioritize

communicating legal hold requirements to IT, rapid definition

of custodians and identification of relevant information.

LLEGAL

COUNSEL

ITINFORMATIONTECHNOLOGY

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Increasing eDiscovery Expectations—and StakesCurrent U.S. litigation law requires that all parties must have good eDiscovery capabilities in place

before litigation starts:

FRCP Rule 26(a)(1) requires that all litigants have a solid understanding of

their data assets and that they are able to discuss all relevant, data-related

issues ahead of the initial pre-trial discovery meeting.

FRCP Rule 16(b) requires that this meeting take place within 99 days after

a legal action begins.

Courts are requiring increasingly faster production of relevant content, making responding to

eDiscovery requests in a timely manner absolutely critical. If Legal and IT teams do not have the

right collaboration tools at their disposal, the organization risks fines or sanctions, or instructions

from the court — such as adverse inference.

The Real Threat of Adverse Inference

Another important benefit of good information governance is the ability to minimize—or eliminate—

the possibility that data might not be properly identified and preserved during an eDiscovery

exercise or a regulatory audit. Evidence spoliation during a legal action, for example, can carry with

it enormous and damaging consequences. The destruction of evidence inhibits a court’s ability to

hear evidence and accurately determine the facts. An adverse inference instruction from the court

to a jury, in which the jury is instructed it may assume the party failing to present data is hiding

something, can be extremely damaging.7

5. http://www.nycommdivcompendium.com/2015/06/02/thou-shalt-not-destroy-esi-yet-another-cautionary-tale-on-the-duty-to-preserve-electronically-stored-

information-from-the-commercial-division-albany-county/

6. https://www.law.cornell.edu/rules/frcp/rule_26

7. http://www.ediscoverylaw.com/2010/11/court-imposes-adverse-inference-for-failure-to-preserve-text-messages-related-to-criminal-investigation/

In this case, HMS (Health Management Systems)

was suing several former employees, alleging the

misappropriation of strategic HMS confidential

information and trade secrets that the defendants

distributed in efforts to assist their new employer (PCG)

to compete against HMS.

Following the commencement of the suit, PCG placed

a broad litigation hold on all employees associated with

the case, advising employees to “discontinue any data

destruction.” But that wasn’t enough. HMS brought a

spoliation motion before the court alleging deletion of

relevant ESI from the defendants’ personal computers

and electronic devices. The defendants did not deny

the deletion of ESI, but raised various explanations

and excuses. Following a hearing, the court found that

a mandatory, adverse inference against two of the

three defendants was “necessary to alleviate the harm

suffered by HMS.” The defendants were also ordered

to pay HMS the costs, attorney’s fees and expenses of

the spoliation motion.5

This case highlights the risks associated with non-compliance

during the litigation discovery process. Automating legal hold

processes assures that ESI held on custodian devices cannot

be deleted intentionally or unintentionally.

HMS Holdings Corporation

ArendtVS.

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The eDiscovery Process Diagram: A Best Practice BlueprintThe eDiscovery process diagram gives you a bird’s eye view of the path a piece of electronic evidence will take from start to finish. The Electronic Discovery

Reference Model (EDRM) shown here is widely used and respected in the U. S.; it demonstrates a conceptual view of the eDiscovery process.8 According

to a RAND Corporation study, the legal and financial costs and stakes greatly increase with each chronological step in the diagram. The study found that

8% of the costs of producing electronic documents was for collection, 19% was for processing and 73% of costs were in review-related activities. This cost

expansion trend reinforces the necessity to have a careful eDiscovery plan, right from the start. Organizations that efficiently cull non-relevant documents

during the less costly collection and processing phases will incur lower costs when it’s time for the more expensive review and analysis phases.9

One direct result of poorly defined or enforced information governance is greater eDiscovery costs. Without a strong start, litigation processes will be less

efficient, resulting in the production of excessive amounts of content that must be reviewed by paralegals or attorneys down the line.

It’s all about laying a strong foundation.

InformationGovernance Identification Preservation ReviewProcessing Production PresentationCollection Analysis

8. http://www.edrm.net/resources/diagram-elements

9. http://www.rand.org/content/dam/rand/pubs/monographs/2012/RAND_MG1208.pdf

10. http://www.slideshare.net/jmancini77/arma-michigan

Est. cost/gigabyte: $910

Est. cost/gigabyte: $2,931

Est. cost/gigabyte: $13,63610

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In-House Legal Hold: A Simpler, Stronger StrategyIn many organizations, the legal hold and eDiscovery processes look a lot like the titles of litigation

cases: Outside counsel v. Inside counsel, Legal team v. Vendor, IT team v. Vendor, Legal team v. IT team,

Legal team v. “the system,” IT team v. “the system,” etc. In a movement to simplify and standardize their

procedures—and dissolve some of these extra tensions surrounding litigation—many organizations are

embracing the new best practice of bringing their eDiscovery process in-house.

Read part two to learn how you can leverage your Code42 endpoint backup—now with improved Legal

Hold capabilities—to move legal hold management in-house, and build your eDiscovery process on a

more solid foundation.

11. http://www.rand.org/content/dam/rand/pubs/monographs/2012/RAND_MG1208.pdf

12. http://www.computerworld.com/article/2516002/enterprise-applications/e-discovery-moves-in-house.html

of the costs of producing 96% 73%

OF FORTUNE 2000

One ESG survey found that

IN REVIEW COSTS.11

100

$1,364

MEGABYTES OF CONTENT eliminated during the collection phase will save

ELECTRONIC DOCUMENTSare spent on outside counsel or vendors.11 enterprises & government

agencies have a plan to bring eDiscovery in-house.12

Bringing certain early

75%11

in-house reduced the amount of material one company had to send to outside counsel for review by over

eDISCOVERY FUNCTIONS

APPLESAMSUNG

VS.

THE HIGH COST OF OUTSOURCING eDISCOVERY:An RFP requires research, analysis, scoping, collection

and prioritization of requirements, and communicating the

IT landscape to a potential supplier.

MANAGING eDISCOVERY IN-HOUSE:With Code42 CrashPlan, an admin simply authorizes

the legal hold application to enable counsel or litigation

support to select custodians and manage preservation.

RFP

Outsourced eDiscovery:Create a request for proposal, a discovery plan requires someone to research analyze and scope the project, collect and prioritize requirements and understand and communicate the IT landscape to a potential supplier.

RFP

Outsourced eDiscovery:Create a request for proposal, a discovery plan requires someone to research analyze and scope the project, collect and prioritize requirements and understand and communicate the IT landscape to a potential supplier.

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Part 2: Code42 Legal HoldA Strong Foundation

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Preparing for eDiscovery As every IT team member knows, the power, potential, value and life of an organization is its data.

Every year, big data grows bigger, and it’s not living neat and tidy in the center of the system. It

lives on endpoint devices that are mobile, geographically dispersed and not always connected to

network servers.

When employee devices are backed up with Code42 CrashPlan, IT has visibility—via historical

archive—of every version of every file, wherever employees are stationed. IT can facilitate counsel

and/or litigation support personnel by giving access to the legal hold web app from the console.

Once enabled, counsel can choose custodians, define and manage preservation policies, and

select and collect documents for the second phase of eDiscovery.

Return to all legal holds

Name Date added CollectionStatus

Choose status: Active

Total Quality Litigation

CustodiansDetails Activity

Created by: Joseph Wang

Status: ACTIVEDate created: 5/12/15

AdministrationLegal Hold

Dwight Schrute

George Lundy

Pauline Winston

Peter Henninger

Joseph A. Lyons

Joyce J. Gilligan

Efrain M. Harper

Lorraine M. Daly

Patrick Housman

Shirley Kendrick

Spencer Young

Malcolm W. Perry

Barton Macklin

James Borum

Active

Active

Active

Active

Active

Active

Active

Active

Active

Active

Active

Active

Active

Active

5/2/15

5/2/15

4/19/15

4/19/15

5/2/15

5/2/15

5/2/15

4/19/15

4/19/15

5/2/15

4/19/15

5/2/15

4/19/15

4/19/15

Get Files

Get Files

Get Files

Get Files

Get Files

Get Files

Get Files

Get Files

Get Files

Get Files

Get Files

Get Files

Get Files

Get Files

Get files...DoneRestore Target: Zip file

CODE42 LEGAL HOLD:

• Works across multiple operating systems—including

Windows, Mac and Linux—giving IT full visibility of all

user data in a single dashboard.

• Supports very rich policy management to

ensure that technology corroborates information

governance policies.

• Offers feature parity across platforms with a single

agent for open file handling.

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Universal Truth: Quality In = Quality OutEndpoint backup across the enterprise is the foundation upon which disaster recovery

plans, compliance and remediation strategies, streamlined data migration processes

and other business functions are built—including proactive legal hold.

The Code42 CrashPlan legal hold module extends the utility of your

enterprise data platform to support a legal hold process that is

thorough, relevant and meticulously documented. Your process

contributes to your ability to win favor in court and avoid instructions

or sanctions resulting from spoilation.

Data Mining, Modeling and

Analysis

LegalHold

Future Compatible

Predictive Risk Analysis

Disaster Recovery and Business Continuity

Data Security

CAPTURE AND STORE ALL END-USER DATA ON THE CODE42 PLATFORM

Data Migration

Vital Evidence

Legal Hold Process

Forensics

When your eDiscovery process is built on a solid foundation, so is your case.

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Code42 CrashPlan with eDiscovery ToolsEndpoint backup can support a strong information management policy, and is

the foundation of a proactive and reasonable approach to data management

and litigation preparation.

Code42’s integrated legal hold module is intended for use by technical or

non-technical teams. This module enables eDiscovery teams to centrally

control policies, profiles, permissions, user accounts and groups in real time.

In the legal hold application, a legal hold is applied when the lawyer (or legal

technologist) selects the custodian and preservation policies, including a data

destination where files are stored. The console activities do not disrupt a

custodian’s work.

Code42 legal hold is a reasonable, repeatable process that preserves

custodian data in an onsite or offsite system. The data is only collected/restored

for processing if the legal team is unable to resolve the litigation. Preserving in

place can result in significant cost savings if an early settlement is reached.

Code42 legal hold:

• Provides a silent, continuous, unlimited and unified solution

• Places legal holds without user disruption or file duplication

• Allows access to audit trails and file metadata

• Provides a single role-based admin interface

• Integrates with eDiscovery processing software

Return to all legal holds

Total Quality Litigation

Preservation Policy

Reference

Description

Custodians ActivityDetails

Created by: Joseph Wang

Status: ACTIVEDate created: 5/12/15

General Backup:

External Reference:

Notes:

Description:

Rename…

Adjust backup set settings

No legal hold description yet Edit

Deactivate hold

Remove hold

EditNo reference ID yet

No notes entered yet

File Selection:

Filename Exclusions:

Frequency and Versions:

Advanced Settings:

Choose which files to include and exclude

Choose which filenames to include and exclude

Versioning controls how frequently file changes are captured and kept over time

Set and adjust additional settings

User Profile Backup: User profile and state settings to capture

AdministrationLegal Hold

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Identification: The

Code42 platform makes

it easy for a single admin

to manage all legal holds

from a unified console.

Information Governance: Code42

CrashPlan enables an accountable

framework for information

governance of end-user data. The

Code42 legal hold application is

built atop its robust endpoint data

protection and security platform—

which backs up every version of

every file automatically and enables

management of end-user data via a

single powerful console.

InformationGovernance Identification Preservation ReviewProcessing Production PresentationCollection Analysis

Preservation: Through the

legal hold module, litigation

support specialists select

custodians, assign parameters

and policies of the legal hold

data set, and audit processes

throughout. Custodians can be

placed in multiple legal holds,

each with unique policies.

Collection: The self-service

function is administered

through the legal hold

web app. Here, files and

associated metadata are

restored in native formats

to maintain auditable chain

of custody.

Code42 Legal Hold: A Solid Foundation for eDiscovery ProcessCode42 CrashPlan provides the solid endpoint backup that’s vital to a robust information governance policy. The Code42 legal hold

application provides litigation team members with a strong collaboration tool providing visibility, management and legal hold capabilities for the

identification, preservation and collection phases of eDiscovery.

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Processing: Following

collection, native files

are prepared to be

loaded into a document

review platform.

Production: Documents

are turned over to

opposing counsel

based on agreed-upon

specifications and

governed by the rules of

procedure. Documents

can be produced either

as native files or in a

standardized format (such

as PDF or TIFF), alongside

metadata.

InformationGovernance Identification Preservation ReviewProcessing Production PresentationCollection Analysis

Review: During the review

phase, documents are

reviewed by counsel for

responsiveness to discovery

requests and for privilege.

Analysis: At this point, the

scope of the eDiscovery

project is set, and the files

are analyzed by counsel

for use in building an

argument.

Presentation: In the

final stage, evidence is

presented to a judge in

court.

Building Success on a Solid FoundationCode42 integrates with eDiscovery analysis products, ushering your relevant data—collected with its integrity and authenticity intact—into the

processing, review, analysis, production and presentation phases. Quality in = quality out.

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Code42 Supports Four Fundamental Factors of eDiscoveryIn the United States judicial system, an organization’s eDiscovery process is judged based on reasonableness. This is

a largely subjective quality, or rather a balance of many qualities, but consistently includes the following factors:

The duty to preserve evidence prohibits destruction or

alteration of electronically stored information (ESI).

When preserved data is narrowed down, the process is

also referred to as culling.

It is incumbent upon attorneys to periodically notify custodians that a legal hold has been placed on their

devices; custodian compliance needs to be monitored.

Spoliation sanctions have increased 271% since 2005. The most common

misconduct resulting in sanctions was the failure to preserve.12

1 Duty to Preserve

Code42 CrashPlan supports the duty to

preserve through continuous, automatic

collection of every version of every

file continuously and automatically—

preventing loss, deletion or spoliation

of documents.

2 Scope

For defining the amount of information

that will undergo eDiscovery, the Code42

platform supports robust search of

people, past, present and deleted files,

topics and devices. It also provides the

ability to see what data has been saved

in third-party clouds (such as Dropbox or

OneDrive) or removed via external drives

(such as USB drives).

3Chain of Custody

As relevant information progresses

through the eDiscovery workflow, it

moves from place to place, is seen by

new people, and will eventually leave the

organization for review and processing.

Code42 CrashPlan supports chain of

custody with audit trails and metadata

log files.

4Data Management Philosophy

The Code42 platform enables the

organization to:

• Set retention policies individually, by group or geographical location

• Determine where to store custodian data• Select which data is backed up and

preserved through an extensible rule set• Perform legal hold on custodian endpoints

regardless of operating system platform (i.e., Windows, Mac and Linux)

12. http://www.abajournal.com/files/DukeLaw.pdf

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ConclusionIn order to strengthen processes, avoid spoliation fines, simplify complexities and control costs, innovative enterprises are moving

vital parts of their eDiscovery processes in-house. Those with Code42 CrashPlan can do this with ease, using its legal hold

module, which sits on top of their continuous endpoint backup platform. The legal hold module enables legal teams to create and

manage all legal holds through a single application.

Endpoint backup is a secure and solid foundation for managing and protecting end-user data. In the event of litigation, you can

extend this strength to your eDiscovery process.

When your process is built on a solid foundation, so is your case.

To learn more about the legal hold feature of Code42 CrashPlan, contact your sales representative or visit code42.com/contact.

CODE42

Code42 is a global enterprise SaaS provider of endpoint data protection and security to more than 37,000 organizations, including the most recognized brands in business and education. Our highly secure

cloud solutions enable IT and security teams to limit risk, meet data privacy regulations and recover from data loss--no matter the cause.

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Glossary

Adverse Inference A legal ruling, resulting from the absence of requested evidence, in which the jury is instructed that it may assume the party failing to present data is hiding something.

Chain of CustodyThe documentation of the path a piece of evidence traveled before being presented in court; an audit of who made, saw, touched, altered evidence and why.

Collect and PreserveA legal hold method where relevant files are collected and placed in a new location when it is practical to do so.

CustodianThe creator or holder of a piece of evidence.

eDiscoveryThe process of identifying, preserving, collecting, processing, reviewing, analyzing, producing and presenting electronically stored information associated with legal proceedings.

ESIElectronically Stored Information; an acronym referring to any evidence that exists or existed in digital form.

Legal HoldAn action taken by an organization to preserve relevant information; must be performed when litigation is anticipated.

Information GovernanceThe set of structures, policies, procedures, processes, controls and general philosophy implemented by an organization to manage the information it creates and uses.

LitigationA lawsuit; the proceedings initiated between two or more opposing parties to enforce or defend a legal right in court.

Preserve in PlaceA legal hold method where relevant files are immediately “locked down” in the same location in which they are found—workstations, laptops, file shares, information repositories, etc.

ReasonablenessA judgment determined by the court regarding the quality of the eDiscovery and information governance policies of an organization.

SanctionsPenalties for disobeying or disregarding a rule of law; fines, restrictions, or other deterrents.

SpoliationThe deletion, misplacement or alteration of evidence.