Lawyers representing companies that operate process facilities, such as refineries, electricity-generating plants or chemical-manufacturing facilities, face special challenges when overseeing preservation and production of electronically stored information (ESI).
Process facilities generate process data, which includes measurements of fluid temperatures at hundreds of locations in a single facility, pressures inside vessels and pipes, flow rates and similar information. These facilities also generate and store vibration measurements taken by the maintenance group, laboratory results of samples that can be taken at numerous locations within the process, and readings taken by the environmental section.
The facilities generate and store an astounding amount of data, but their data collection and storage systems often were not designed to preserve ESI for the extended periods required by modern litigation and investigations.
Additionally, the technical complexity of such facilities means ESI exists on various platforms in multiple locations. To identify, preserve and collect that ESI, lawyers must work with highly skilled technical employees, including people in engineering, information technology, accounting, environmental and management.
The legal department will need to teach employees that process data, metadata (information about other data stored electronically in a computer or server), emails, text messages, voice messages and other documents (hard copy and electronic) are subject to the preservation and potential production obligation. This effort may seem completely unreasonable to the technically trained mind. Here are some things attorneys representing process facilities should consider regarding preserving and producing data.
1. Know who will bear primary responsibility for preservation at a facility. Within the process facility, primary responsibility for preservation may fall on the operations engineer or manager responsible for the equipment at issue in the suit or investigation (who I will call the primary engineer). This person is critical to the creation of a legally defensible ESI preservation and production plan.
The legal department must educate the primary engineer and, together, consider carefully all of the departments within the facility that may have potentially relevant evidence, including operations, maintenance, purchasing, human resources, environmental and safety, and instrument and electrical.
The lawyer should explain to the primary engineer that other departments or managers in the facility may not understand the importance of preserving evidence. That is why the primary engineer should confirm in writing that all appropriate departments are preserving evidence.
As soon as possible after the preservation duty arises, the legal department and the primary engineer should determine computers’ and servers’ “sweep” frequency — the schedule for automatically removing ESI. Different departments within a process facility commonly use different sweep frequencies; no lawyer or engineer should assume that all departments have the same schedule for automatic removal of ESI.
Who Has Data?
The legal department and the primary engineer should think broadly when identifying who may have data for preservation.Some of the special groups within a facility, such as maintenance or environmental, may have mobile data-collection equipment that stores process data subject to the preservation requirement. These mobile data-collection devices may have their own internal preservation/removal systems, or they may have no regular preservation or removal system. Ultimately, company lawyers will be responsible for assuring opposing counsel and courts that such data was preserved and produced; doing so requires understanding where such data resides.
In the modern process facility, people who ordinarily would not interact with lawyers or the IT department — such as hourly workers (operators and mechanics) and their immediate supervisors — will possess potentially relevant ESI on their cell phones, BlackBerrys, PDAs and other similar devices, all of which have a document storage component. It will be a challenge to identify all of the potentially relevant ESI devices and preserve all required documents.
The legal department must work closely with the primary engineer to ensure notification of all relevant categories of workers about the preservation requirement. Don’t forget to include consultants and in-house experts, including auditor team members from other facilities and company-wide experts at off-site locations. They may have ESI or other documents that exist in no other place. They may be unaware that the scope of preservation applies to them absent specific discussions with them and a review of their hard copy and electronic files.
Convincing staff that their emails, text messages and voicemails are documents that require preservation is an ongoing challenge. It may be helpful to remind recalcitrant workers that noncompliance can lead to indictment for obstruction of justice.
The modern process facility presents technical and human challenges when faced with a document preservation requirement. As with other challenges (safety, environmental, process upsets) training before the challenge occurs can improve performance. Moreover, training regarding ESI can help reinforce that company equipment should be used for company business, and that employees have no privacy expectation when using company devices.