Microsoft Office 365.
|

If you're working in e-discovery today, then it's highly likely you're dealing with Microsoft Office 365 data. Microsoft Office 365 is the most popular enterprise cloud service in the market today, with over 90 percent of enterprises having at least 100 users. And the data stored there is important and relevant to litigation, as well, with a recent McAfee report estimating that over 58 percent of sensitive information stored in the cloud is in Office documents.

Microsoft recognizes the importance of e-discovery capabilities to these enterprise users, as its E3 and E5 Office 365 offerings both contain e-discovery capabilities for admin-level users. The question then becomes, “Are Microsoft's built-in e-discovery capabilities enough for enterprise-level needs?” Determining that is beyond the scope of this article—or any vendor—but there are some key considerations e-discovery professionals should weigh when making the decision whether to rely on these capabilities.

1. Evaluate existing policies and procedures for document preservation.

With more and more critical information being stored in Office 365 documents, e-discovery teams have tools at their disposal to control and preserve data earlier in the information governance life cycle. In industries where the possibility of litigation or regulatory requirements demand it, there is an expectation that sensitive data can and should be preserved.

Sean Evans, managing director at Ankura, explains, “Corporate clients are being asked to take more control of these business-critical documents earlier in the EDRM process—farther to the left—during the identification and preservation stages. There's a good percentage of these critical documents in the system, and it's on corporations to deal with them upfront, ahead of time.”

2. Understand the e-discovery implications of your preservation strategy.

Office 365 gives you the option of preserving search results or preserving all custodian data. While the industry standard is “over-preserve but under-collect,” there are certain situations where choosing a different strategy may make more sense.

Leonid Balaban, e-discovery program manager at the University of Colorado, suggests, “When organizations are dealing with gigabytes or terabytes of data, preserving their Office 365 data in its entirety may not be the best approach. A preservation strategy based on limited content search criteria may achieve the desired results as well. It all depends on the preservation policies and requirements of your business or organization.”

The key to defensibility is having a consistent strategy. If an organization has a consistent, documented process, the courts will interpret attempts to follow that policy as a good faith effort to preserve relevant data.

3. Account for the data in non-Office 365 sources.

Make sure your processes and technology account for the 42 percent of business-critical data in the cloud that's not in Microsoft Office documents—as well as workstations, servers, and mobile devices, for starters. All those sources hold potentially responsive data, as well, and your e-discovery processes must account for them.

Balaban explains, “We have a number of users who store some data on their workstations. Some departments have their own email servers or file sharing servers.” But for smaller organizations with exclusively Microsoft infrastructure, Office 365's e-discovery tools may suffice. He continues, “It really depends on the organization. You have to know where your data is to conduct appropriate e-discovery.”

4. Make an informed decision about Office 365's advanced e-discovery features.

Microsoft's E3 offering includes features like the ability to preserve Office documents (including email) in place. More advanced e-discovery features, including the ability to identify near-duplicate content, consolidate email threads, perform predictive coding, analyze documents in clusters, and export load files with metadata and natives are available in E5 or as an add-on to an E3 license.

However, these features are not a substitute for dedicated e-discovery technology. An e-discovery platform (or even point tools) can create, issue, and manage legal holds; analyze the contents of documents prior to collection; and manage e-discovery workflows across team members and departments. If you're using dedicated software, then the advanced features in Office 365 E5 may be redundant given the power and flexibility of dedicated e-discovery technology.

5. Having multiple data management processes may not be scalable.

Since most organizations will have data in both Office 365 and non-Office 365 sources, by necessity they will need to have separate processes to identify and preserve relevant electronically stored information (ESI). As mentioned above—you need to know where your data is.

Consolidating all collected data, from Office 365 and non-Office 365 sources, into a single repository for review minimizes the risk of overwork and human error. Make sure your collection, processing, and review software integrates with all your data sources. Conducting separate, parallel processes deeper into the EDRM will increase both work volumes and risk.

6. Pay attention to Office 365's technical settings. 

For many organizations, the benefits of Microsoft's e-discovery capabilities outweigh the costs; after all, the other features of Office 365's E3 and E5 offerings have value too. But aligning the e-discovery features with organizational policies and procedures will require fine-tuning Office 365's settings. They have to align with your strategy and regulatory requirements.

Automatic updates, default settings, and mailbox limits can inadvertently affect your e-discovery processes. If you're counting on Microsoft's e-discovery tools, make sure your legal team understands and monitors settings to ensure they comply with your e-discovery policies and procedures. Otherwise an unintended change in mailbox size limits or document retention timelines could result in the accidental deletion of relevant ESI.

As always, the keys to successful e-discovery are having defensible, repeatable processes and understanding your data sources, whether or not they include Microsoft Office 365.

Nishad Shevde is the Managing Director of Client Operations at Exterro where, as a member of Exterro's senior leadership team, he heads Exterro's Client Success and Global Support Organizations and serves as an external and internal subject matter expert. Nishad is an expert in complex e-discovery program and matter management for both Fortune 500 corporations and AMLAW 100 law firm clients. Nishad also has multiple years of experience leading large global teams of e-discovery consultants and project managers at industry-leading organizations.