BY: JOE NELSON
You’ve been served a subpoena…now what?! For starters, resist the temptation to ignore or throw it away. Subpoenas are court orders. Ignoring or dodging a subpoena is a crime – one that can result in jail time or fines, and is reflected on your criminal record. If you are served a subpoena, you must comply.
Often, subpoenas request documents to be procured and handed over in some form, usually as hard copies on paper or as electronic copies, within a specific time frame. In other words, your subpoena requires you to find every single electronic or print file related to a specific case, no matter where it is, no matter what format it is in; all compiled in an organized, searchable system. It can be a pretty daunting task, especially knowing you will be required to sign a statement that says you have produced ALL of the files you are in possession of, not just the files that you can find!
The next step is to ensure that whomever is going to perform this electronic file assimilation is not in over their head as is often times the case. During my 20+ years doing software consulting work, I have had this exact conversation with probably hundreds of people attempting to locate files for personal and professional subpoenas:
Customer: I had a file and it disappeared…. I can’t find it.
Me: Where was it located the last time you opened the file? Customer: It was in Excel.
Of course many of us know Excel doesn’t store files, it opens and edits files…. The files are stored on a hard drive, USB Thumb Drive, “In the Cloud”, DVD, etc. What the folks in the above conversation are really saying is that, they opened Excel, it showed them the recent files used, and they clicked on one of those files. In reality they have no clue where that file was really stored. I mention this because it highlights just how inexperienced many people are in regards to digital file storage and search.
Excel is an easy example…. But what if we are looking for every single file (no matter what type) related to “XYZ” that has ever been created on any of your electronic devices over the last 5 years? If you only have 1 or 2 employees and haven’t had any hardware changes, then it may not be a big deal. But that is often not the situation many organizations find themselves in.
The challenge many organizations have when attempting to comply with a subpoena is that over the years you may have had many different staff create lots of different electronic files while using different methods and software. That’s a lot of inconsistencies to account for. Because computer hardware gets replaced regularly, these files get stored on multiple hardware platforms. When the hardware is changed, often the decision is made to NOT MOVE “all of that old data”. The result is multiple files, that are related to the exact same customer or project, that in no way resemble each other and perhaps aren’t even kept in the same location. What a time consuming mess!
So what do you need to do? Just like anything else involving legal matters, the first thing to do when digitally stored data has been subpoenaed is to get organized. Multiple computers, backup devices, multiple servers, perhaps all located across multiple physical locations, all need to be listed into some sort of list.
Your Digital Data list should consist of at least the following information.
- Device / Source Name – What is the server or backup device called?
- Physical Location – What Building, room. Where can we put our hands on this device?
- Current Status – Is the device currently “online” on the network, or is it sitting on shelf somewhere?
- Type of data – What type of data are we expecting to find on this device (email, customer invoices, etc…)?
- Login Credentials – List all known usernames and passwords to access this device
- Date Range – What span of time is expected to be found on this device (ex. 2015 – 2019)?
- Subpoena Reference – If you are expecting to find answers to a specific section of the subpoena, list what section or number of the Subpoena.
The more complex your situation, the stronger I recommend you seek professional help. At Bearden Investigative Agency, we not only have years of IT Experience in data analysis and document management, we have cutting edge proprietary tools at our disposal to search, find and categorize subpoenaed data. Many of the software tools we use have been custom developed “in house” by our team, giving us abilities that are unmatched in the industry. We are able to quickly and efficiently search and manage millions of records at a time. Often we can do this without your data ever leaving your site. Our processes guarantee that given the right set of criteria the needed records will be found, indexed and prepared for review and submission.
Contact Joe Nelson at Bearden Investigative Agency today. 1.800.943.2670
Read more about the Role of Emails in a Private Investigation.