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Chapter 8: Data Identification and Searc... > Search and Identification in Complia... - Pg. 202

202 Chapter8·DataIdentificationandSearchTechniques Introduction Data search and identification is one of the most important phases of the e-discovery process. To meet the duty to preserve potentially relevant data, you must be able to effectively search for and identify this data. The duty to preserve is not a new duty; it existed long before the December 2006 amendments to the Federal Rules of Civil Procedure became effective, and it is well established in case law in virtually every jurisdiction. The duty requires you to preserve any potentially relevant information/ data when litigation or investigation is reasonably anticipated or presents itself. In light of the proliferation of data, demonstrating that you have made a good-faith effort to preserve potentially relevant data often requires the use of effective search and identification technology. The first step in meeting the duty to preserve is determining where your data lives. This may sound easy, but with a distributed enterprise and information technology (IT) infrastructure, along with a mobile workforce, it becomes a daunting proposition. Reasonable efforts to locate the data are necessary, often requiring a variety of techniques to locate all potential sources of data. Once you determine where your data lives, you must identify the potentially relevant data. To best determine what data may be potentially relevant, you must be able to search the data. The challenge here is to determine the best technique for identification purposes among the many different techniques and search strategies available. Finally, in today's world of multinational organizations, it is important to be aware of the differing regulations on employee privacy and how electronic data is handled across the globe. Although this chapter won't go into great detail on this topic, be aware that there are thorny challenges to sending data across international borders, so you should closely examine this issue based on the jurisdictions involved. D isclaimer This chapter is provided for informational purposes only and should not be construed as representing legal advice. The reader should consult his or her own counsel regarding application of the concepts, ideas, and theories discussed in this chapter and should not rely upon any information contained herein for any purpose without seeking legal advice from a duly licensed attorney competent to practice law in the applicable jurisdiction. Search and Identification in Compliance with the Federal Rules As noted earlier, the duty to preserve provides the foundation for this chapter. Although you may be asking "isn't this the search and identification chapter?" and wondering why we are covering the duty to preserve here, the answer is simple: The search for and identification of potentially relevant data is inexorably linked with the duty to preserve. In short, you cannot effectively preserve potentially relevant data--without preserving the entire universe of data, which would be inordinately expensive-- if you are not able to search for and identify the relevant data. So, let's start with the rules that serve as the underpinnings of the duty.