When a company’s failure to comply with a litigation hold results in the loss of data that should have been preserved, Stroz Friedberg can provide an independent assessment of the human and technical actions that led to the spoliation and can attempt remediation by reconstructing the lost data from alternative sources. Use of a neutral third party is advisable in these circumstances to attest to the facts resulting in the data loss, since the company’s IT staff or outsourced vendor may be responsible for the failure to preserve and should not be put in the position of investigating themselves. Working with outside counsel, Stroz Friedberg’s methodology begins with interviewing the personnel involved in the failed litigation hold, adding unique value in sorting out the validity of the statements of the IT or vendor personnel involved and verifying technical aspects of the data loss. Stroz Friedberg’s deep knowledge of messaging, data management, archiving, and backup systems, including auto-delete and recycling functions, is critical in constructing an accurate chronology of how the data was destroyed and whether the destruction was innocent, negligent, reckless, or intentional. Stroz Friedberg’s engagement managers are skilled in creating written factual and expert reports of such chronologies and findings.
Simultaneous with making an assessment of the circumstances underlying the spoliation, Stroz Friedberg constructs and executes a strategy to rebuild as much of the lost data as possible by scouring available sources. This may include forensically recovering archived and deleted e-mails and files from workstation computers, server “dumpsters,” backup tapes, de-commissioned servers, custodians’ BlackBerry’s and other PDAs. By comparing the amount of data recovered against estimates of the data lost, Stroz Friedberg’s work not only bolsters a good faith showing of remediation but also provides expert analysis that can be highly relevant to whether spoliation sanctions should be imposed.