What are the worst discovery nightmares for lawyers? I am sure we could compile a lengthy list. From my experience, one of the worst involves addressing documents that fall outside the mainstream of data management – so-called rogue documents. Microsoft Personal Storage Table (“PST”) files are some of the worst culprits. PST files often have a stealth existence because they are created and stored on local computers. Furthermore, Legal and IT often have no information governance plan to address the retention, identification and production of these files.
A cautionary tale of what could happen when a company fails to take charge of its rogue PSTs is found in Nycomed U.S. Inc. v. Glenmark Generics Ltd. (E.D.N.Y. Aug. 11, 2010). In Nycomed, the defendant was sanctioned for failing to preserve data. In its findings, the court noted that some emails were unavailable because they had become corrupted after being stored as a PST file on a local hard drive. Significantly, the PST file was created only after the custodian “had reached the limit for emails in his inbox.” Despite reaching that limit, the emails were not stored on the defendant’s Microsoft Exchange Server or in its journaling system. While criticizing the defendant for not preserving the corrupted emails, the defendant – remarkably – was not sanctioned for this shortcoming.
The defendant was fortunate – some might say lucky. Had venue for this matter been across the East River in Manhattan, the defendant could have incurred severe sanctions for its failure to retain the emails. See The Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, 685 F.Supp.2d 456, 471 (S.D.N.Y. 2010) (holding the failure to ensure electronic records of key players are preserved is gross negligence and typically merits sanctions).
Companies can avoid this situation with a thoughtful, proactive approach to information governance. Such an approach typically involves cooperation by the principal data management stakeholders – Legal, IT, Records Managers and Business Units. Working together, these key players can prepare a policy regarding the creation and retention of PST files that best fits a company’s business needs. And should custodians be allowed to create PSTs, an effective policy will likely incorporate a software solution that migrates PST files into a central company archive. By channeling those files from local computers into the company archive, PSTs are no longer rogues since they are in the mainstream of a company’s data management plan.
Getting PST files out of the wild and into the mainstream will decrease discovery nightmares for lawyers and everyone else in the organization concerned with data management.