Entries categorized under “Electronic Discovery”

DCIG has consistently stressed the need for good eDiscovery processes for electronically stored information (ESI). A steady stream of sanctions surrounding poor eDiscovery strategies is a consistent reminder that a lack of planning can be damaging to your case. A recent case, Ferron v. EchoStar Satellite, LLC., in one such reminder that images and links in emails can be subject to eDiscovery and that the failure to preserve them could be costly. (read more)

When businesses think of Microsoft, it is not just Windows, Office or Internet Explorer that comes to mind. Increasingly it's SharePoint that they identify as one of Microsoft's most compelling solutions. Using a drive letter path for document collaboration is no longer practical in this day and age and SharePoint is now the tool to which many organizations turn to fill their collaboration needs. So while SharePoint fills this new need for many organizations, what is not so obvious to them is how to manage SharePoint so they can search, find and deliver relevant documents in a timely manner if faced with an eDiscovery request. (read more)

More enterprise organizations are examining the possibilities of storing their data to a "cloud" and archive and backup data are heading the list of the two forms of data that they are most likely to store in the cloud. But managing these two types of data once they are in the cloud is anything but a straightforward process. Different archiving and backup software solutions create their own data silos with their own data management and retention policies. This situation can create new eDiscovery and legal hold challenges that organizations are ill-prepared to deal with. (read more)

"As California goes, so goes the nation" is a phrase that I have heard before and it immediately came to mind when I read that Governor Schwarzenegger had signed California Assembly Bill 5, otherwise known as Chapter 5 - Electronic Discovery Act. Signed into law on June 29th, 2009, what makes this law significant is that it expands upon the verbiage used in the Federal Rules of Civil Procedure (FRCP). So for organizations already worrying about the FRCP, take heed because the Electronic Discovery Act takes eDiscovery to yet another level. (read more)

To say that storage clouds are gathering in the distance is probably an understatement. Everyone is beginning to see the benefits - both technical and financial - that cloud storage provides, especially in the archiving and backup realms. But there are more factors to consider than just the underlying architecture of the provider's cloud storage offering or the price per GB. Managing and accessing data in the cloud presents entirely new risks that organizations either are still failing to address or may not even know exist. (read more)

One of the most significant areas of eDiscovery is performing a relevant keyword search of data to produce the proper documents as mandated by eDiscovery requests. This collection of ESI (electronically stored information) holds particular importance as produced documents will go through a review process prior to producing these to opposing counsel. As data continues to grow within organizations eDiscovery costs continue to rise therefore it is extremely important to have a robust search that reduces non-relevant information during a search. (read more)

A recent report from Ferris Research estimates that the total number of business e-mails sent in North America alone will surpass 139 million in 2009 and 143 million in 2010. This volume of email growth continues to put pressure on IT staff in every size organization to manage its inflow, outflow and retention. While the mechanics of managing emails inflows and outflows can be fairly straightforward, when it comes to setting policies as to how long to retain these emails, the picture can start to get a bit hazy. (read more)

Moving aging, stale or infrequently accessed data from high cost, high performance production storage to lower cost, high capacity value tiers of storage can be easy to justify in enterprise organizations. However explaining the value proposition of archiving this same data in small and midsize businesses (SMBs) is sometimes less clear-cut as they may already store aging emails and file data on low cost local hard drives, inexpensive network file servers and even with Internet cloud storage providers. (read more)

First Louisiana State Court Judge Rosemary Ledet found Dell in contempt of court; then she accused Dell of making a "mockery" of the system; and then, to give her statement some teeth, she hit Dell with a $25,000 fine. Granted, a $25,000 fine is not a huge sum of money for a company like Dell and it certainly was a lot smaller than the $182,000 requested by Plaintiff's attorneys. But the tongue lashing and ensuing fine should serve as a wake-up call to all size organizations that judicial patience in regards to eDiscovery is running thin and callous or indifferent attitudes towards eDiscovery are no longer being tolerated. (read more)

"If it really costs millions to do that [e-discovery], then you're going to drive out of the litigation system a lot of people who ought to be there." This quote by Supreme Court Justice Stephen Breyer cuts to the heart of current issues surrounding eDiscovery. A recent DCIG blog highlighted how out of control litigation costs have become and have left companies with hard decisions on whether it is best to settle cases based solely on the cost of eDiscovery or attempt to litigate. But as companies face unprecedented economic pressure, a key question comes to mind, "Are these costs driving risky data retention strategies such as destroying all of your data?" (read more)

"There is no truth if you cannot find relevant evidence and, unless companies get their eDiscovery act together, eDiscovery is about to destroy the American System of Justice as we know it." That statement summarizes the opening remarks that Ralph Losey, the noted eDiscovery attorney of FloridaLawFirm.com, made during a recent presentation. From there, he went on to explain why he believes most organizations - public or private, large or small - have no viable strategy for eDiscovery and why a reactive approach to eDiscovery is putting the viability of the American System of Justice as we know it at risk. (read more)

Regardless of how one approaches an eDiscovery project, having processes and tools in place to help guide you through the EDRM (electronic discovery reference model) are critical elements that influence how effective an eDiscovery project will be. Data retention policies, access to outside resources, and technology are all critical components to have in place in order to successfully complete an eDiscovery. Yet an equally important question that organizations need to answer is how reliable is the information they discovered in their eDiscovery? Or, better put, how do they move from a faith-based approach of eDiscovery where they assume they have all of the information that they need to a fact-based approach where they have confidence that all of is the information found during the eDiscovery is accurate and defensible in court? (read more)

There are many factors that guide a company's approach to eDiscovery. But knowing which ones matter - and which ones don't - continue to be a source of frustration as companies grapple with the Federal Rules of Civil Procedure (FRCP) and how best to respond to an eDiscovery request. Two areas of immediate importance that plague companies are how best to take responsibility for the results of an eDiscovery request and then control the costs associated with the eDiscovery. And without any easy answers and growing costs for outsourced eDiscovery, more companies are examining at the merits and cost-savings of an in-place eDiscovery (read more)

Recently Kelly Polanski (another DCIG analyst) and I had a rather lengthy discussion about the value of keeping archive and backup data on disk versus tape long term. We were both in agreement that using disk in some form as an initial backup target makes sense in most environments but as we started to debate the merits of keeping data on disk versus tape long term, the issue can get more cloudy. While DCIG has previously argued that eDiscovery is becoming a more compelling reason to keep archive and/or backup data on disk long term, the concerns we had centered on the fact that some disk-based archival and backup storage systems can become as problematic as tape. (read more)

A current patent infringement lawsuit has provided a great reminder of why email retention policies and procedures as well as archiving technology are invaluable in today's eDiscovery environment. While discussing policies and procedures can be a mind numbingly boring exercise, this case provided some great reminders as to why they are important in setting the groundwork for a robust and defensible eDiscovery process. (read more)

Understanding legal hold and how to best approach this difficult topic can lead to a failure of the electronic discovery process for a company and put a company at considerable risk if it does not retain critical documents needed to answer an FRCP request. (read more)

While we may think of email applications as a communication tool, the formal definition of what constitutes an individual email is changing. Regardless of an email's folder location, intent, or status, email is a vital piece of corporate electronic information and no different than any other document. Email is now much more than just a communication mechanism but a legal document of record that can be used to an organization's advantage. (read more)

In 1978 the Presidential Records Act (PRA) was passed which fundamentally changed the landscape of Presidential records by moving them from a classification of personal information to the public domain. The PRA is explicit in describing that retention of records created by the President of the United States as well as the Vice President is the responsibility of the President. The PRA guides the President in how records should be handled and guides the steps in the proper destruction of records and how they are retained to comply with this federal statute. (read more)

Matt Kesner, the CTO of Fenwick and West and who runs the computer forensics group within that firm, even goes so far to say in a recent Symantec eDiscovery virtual round table that organizations who use social networking have lost control and it can seem sort of hopeless to get your arms around this new form of electronically stored content. But what is happening in response to this new wave of social networking is that some organizations are making employees responsible for the content they create on these Web 2.0 sites and instructing them to act as their own records managers. (read more)

A just released March 2009 Nielsen Company report, Global Faces and Networked Places, makes some startling observations about the rapid adoption of social networking such as blogs, social media sites (Facebook), Twitter and wikis among Internet users. While many may intuitively suspect that the adoption rate of these forms of social networking is accelerating, this report removes all doubt. It highlights that two-thirds of the world's Internet population now utilize social media sites, traffic to these sites is growing at 3x the rate of other Internet traffic and people now spend 10% of all Internet time on social networking sites. (read more)

A recent virtual eDiscovery roundtable that I participated in highlighted the difficulties that companies are having in getting their arms around the proliferation of electronically stored information (ESI) in their organization. This is especially true when one considers the growth of social media and how it can negatively impact them going forward. One attorney participating in the roundtable even went so far to say that, "We have lost control in regards to blogs, wikis and newer forms of social media." Thankfully the news is a little bit better in regards to the management of older, more mature forms of social media such as email but challenges still remain. (read more)

It isn't just businesses that are hurting in this down economy. As companies cut back it is having repercussions everywhere and local, state and federal government are not exempted from these cutbacks even as their requirements also increase. Case in point, a recent case decision handed down determined that the SEC must comply with the Federal Rules of Civil Procedure (FRCP) just like "any other litigant" that puts the same burdens of eDiscovery and legal holds on governmental agencies that previously only affected private organizations. (read more)

"Scalability is one of the biggest pitfalls that managed solution providers need to watch out for." That statement by ESG's Senior Channel Analyst, Paul Myerson, in a recent SearchITChannel podcast highlights one of the new difficulties that today's solutions providers are encountering, especially as they begin to implement solutions such as archiving and eDiscovery in all size customer accounts. Even though each customer's environment is different, customers still expect their reseller to quickly and cost-effectively deploy these increasingly complex solutions and then support them on an on-going basis. Yet finding a solution provider that has the skill sets and can cost-effectively scale to meet these new customer demands is still easier said than done. (read more)

On January 13th, 2009, a ruling in the S.E.C. v. Collins & Aikman Corp was handed down in what is sure to become a landmark ruling. What makes this an important ruling? Judge Shira A. Scheindlin ruled that the SEC had to abide by the Federal Rules of Civil Procedure (FRCP) just "like any other litigant." This could have ramifications across government entities as the FRCP increasingly touches federal, state and local governments. It is already a well documented fact that the FRCP is changing how private industry manages its data but this ruling sets out numerous areas in which the SEC failed in its internal eDiscovery processes and rightly was held accountable. (read more)

In the last week I had an extensive conversation with an investment individual about what the future holds for email archiving and management software. On one hand, he astutely and accurately observed that the market is already saturated with products and that consolidation should occur. But when one looks beyond the general classifications of "email archiving" or "email management", one quickly detects that many of these products are designed to solve specific problems in a specific market segment. As a result, email consolidation is neither as simple nor as straightforward as one might imagine and that there is still plenty of room for growth and innovation in this space. (read more)