Prepared and In Control: Data Mapping and Litigation Readiness

As a business owner, a lawsuit against you or your company could be devastating at worst, and a major irritant at best. The situation can feel outside of your control. Even if the alleged claims against you are completely false, you are now in a position of having to defend your case. This means hiring attorneys, potentially paying a settlement amount and other high costs.

Catherine Jopling

Often, the greatest expense is what is referred to as discovery. The discovery process starts with collecting relevant documents to be presented to the other side. One way to regain control over the costs associated with litigation is to take a proactive approach to the discovery process – ideally beginning well before you are involved in a lawsuit.

The discovery process involves much more than simply sifting through piles of paper and selecting self-serving documents for your defense. Each day, your business electronically produces hundreds or thousands of business records, including email, invoices, etc., that fall under the fair-game category and need to be given to your legal adversary. There are ethical and legal implications to how the search takes place, and what is — and is not — given to the other side to review.

Something every business owner can do, either internally or through a third-party advisor, is to create a data map of its information systems. A data map shows the location of electronically stored information and the structure of the information system used by an office or company. It is typically created by information technology specialists and is a flow-chart type diagram showing how information is stored and accessed within the organization.

Think of your company’s computers and servers as holding vessels for all the documents related to your business. Now imagine the documents as physical pieces of paper, perhaps bound in books or files in a cabinet, all stored in a room, series of rooms or an entire building. One might need a map of these rooms to locate a particular piece of paper amidst the crowded shelves and stacks of volumes, along with a list of people who have keys to each room.

Ideally, the data map would describe the following:

  • • The computer systems used, including hardware, operating systems, media devices, software, storage locations for backup data, and networking and connections used by employees and entities from remote locations.
  • • Computer devices used by employees outside of the office, such as home desktops, laptops, cell phones and any other personal digital assistants.
  • • The email system, including lists of users and location of email files.
  • • Backup and document retention processes and schedules, as well as contact information for individuals responsible for each step.
  • • Policies regarding email and internet usage, monitoring and document retention.
  • • Any third parties that have access to your company’s data.

This tool is a great asset to your business for many reasons, both in the context of litigation and for keeping your information well organized. There is no standard data map, and it can be as general or detailed as makes sense for the way you run your business. Even the most basic sketch can save you considerable resources.

Outside of litigation, the data map is useful because it shows you where and how you keep the data that keeps your business running smoothly. A data map can save you costs and space by identifying duplicative systems and storage devices. You can work with your information systems personnel to target which systems are obsolete or disorganized, or you can identify areas where sensitive information may risk exposure. If you’re not currently involved in litigation (and not expecting to be), a data map can help you devise a routine policy for purging information that you no longer need to run your business.

When litigation arises, a data map will minimize the time required to locate relevant information. The data map can allow your attorney to view the most relevant documents first. Reviewing these important documents early in the litigation process can help you decide more quickly whether settlement is a good option for you, before additional legal fees are incurred.

Additionally, with the help of a data map, a court may find that a party is not required to give documents to the other side that are too expensive to access or produce, and/or are unlikely to contain information relevant to the case.  Broadly speaking, the data map can be the first step in the process your legal team uses to comb through your business documents and meet all the legal and ethical requirements.

The best time to make your data map is before litigation appears, but better late than never. With a multitude of benefits whether inside the court room or board room, a data map is a sound business investment.