Microsoft’s Office 365 has faced its fair share of criticism regarding its usefulness for eDiscovery. Even after Microsoft introduced an expanded O365 Security & Compliance Center and added preservation support for overlooked data types such as blind carbon-copied emails and Skype for Business conversations, it still lacks the reporting and recording features that courts consider in determining whether a company’s legal hold procedures are defensible. In fact, some O365 licenses don’t come with eDiscovery capabilities at all.
Courts do not view eDiscovery compliance on a tiered-plan basis. Nonetheless, many O365 users assume that the platform’s built-in features are enough to get by. Let’s look at some common misperceptions about how O365 handles eDiscovery, and what steps you can take to ensure compliance.
Unfortunately, not all O365 plans include eDiscovery compliance features, and the ones that do aren’t robust enough to help ensure you meet your duty to preserve relevant evidence in anticipation of litigation. In fact, the only licenses that support litigation holds and other eDiscovery compliance capabilities are the E3 and E5 licenses—which are $20 and $35 per user each month. O365’s license structure also makes it impractical for businesses to use a mix of licenses or downgrade accounts to E1 and Pro Plus licenses, since doing so will permanently remove the account’s original litigation hold features. While you could get around this by manually backing up the downgraded account, this presents a major caveat that would require an appropriate third-party extension to fix.
Sure, using O365’s litigation hold features is a step in the right direction for meeting your duty to preserve relevant evidence. But it’s just one of many steps that lawyers need to consider to satisfy it. That’s because O365’s bedrock features are focused on preservation of data, and not necessarily on the notification and procedural steps required by courts. As the ACEDS recently noted, O365 cannot initiate or automate custodial questionnaires, interviews, litigation holds and other relevant requests. While it’s important to preserve ESI, it’s just as important to have the ability to document a defensible preservation process, as failing to do this could lead to sanctions.
Even under its top-tier E5 license, O365 has a hard cap of 10,000 litigation holds across all active eDiscovery cases within your organization. While this may be more than enough for businesses that face occasional litigation, it can prove unworkable for larger institutions, firms and clients who are required to preserve evidence across numerous ongoing matters. While you could theoretically place a litigation hold across all O365 accounts and data on the cloud server without specifying a date range, this would not be as efficient as a query-based or date range-based hold—especially when large data sets are involved. Consider, for example, The Hershey Company, one of O365’s more high-profile clients. Given that the company employs roughly 21,000 employees worldwide, it doesn’t take a leap of logic to see how cumbersome it would be to search for key ESI across all of those accounts. Again, using a comprehensive litigation hold extension with O365 can help streamline this process.
While O365’s Security & Compliance Center allows users to conduct basic searches using guided menus and intuitive interfaces, lawyers would need to know PowerShell scripting in order to fully harness O365’s features. O365’s Content Search feature is just one example underscoring this difference. While the Security & Compliance Center allows you to search up to 1,000 mailboxes for certain keywords, users are required to use PowerShell in order to properly conduct a complete in-place eDiscovery search across all of the organization’s mailboxes, which is necessary for identifying key custodians and pinpointing mailboxes and other accounts that need to be preserved. Knowing PowerShell is also helpful for troubleshooting O365 issues in-house, as this extensive customer support thread on O365 data preservation shows. While this may not be a major issue for tech-savvy lawyers or firms and companies with IT divisions, it can be a headache-inducing drawback for those who lack coding confidence or an in-house IT support team.
While Microsoft extended O365’s preservation features include previously unaddressed content such as Skype for Business and Yammer conversations, it’s not useful on its own for collecting data stored outside O365. A party’s duty to preserve evidence in anticipation of litigation, however, also covers information stored on mobile devices, social media accounts and other third-party sites. To resolve this, Microsoft has teamed with a number of third-party data transfer providers that are capable of providing transfer and archiving assistance from these sources. As you can see from Microsoft’s recommended list of third-party data partners, however, you may need to work with multiple providers depending on the type of information you need to locate and preserve, which can result in a cumbersome, unnecessarily multifaceted approach to data preservation.
These, of course, are only a small sampling of O365’s shortcomings related to eDiscovery and litigation holds. Many of these issues, however, can be resolved by pairing O365 with a robust third-party extension. TotalDiscovery’s O365 extension can help you incorporate court-tested data preservation and litigation hold procedures with your organization’s O365 accounts—including accounts that lack eDiscovery capabilities. Contact our O365 support specialists today to learn how TotalDiscovery can transform your O365 eDiscovery workflow.
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