Entries categorized under “Electronic Discovery”

Imagine being informed of an impending lawsuit that would require the excavation of all electronically stored information within your organization. Firefighting comes to mind. The common response and practice of many organizations is to form large teams of personnel across the enterprise are led by Legal in response to these allegations. As IT would soon expect, Legal soon bombards them with questions about the organization's electronically stored information. After all, why would IT expect Legal to understand or know where to begin in issues that are rooted in IT technology? (read more)

Companies can experience an overwhelming sense of relief when they finally resolve their ongoing backup problems by switching from tape to disk as their primary backup target. But what companies may fail to fully contemplate is the new possibilities - and challenges - that storing data on disk opens up to them. On the upside disk makes data recoveries and off-site replication of the data much easier to accomplish. Conversely, it can present companies with new challenges to manage the data on disk as it ages lest the escalating costs of disk capacity and cooling and powering the storage system start to offset some of the benefits that disk-based backup provides. (read more)

The Socha-Gelbmann Electronic Discovery survey will continue but its rankings are gone. The announcement that was recently posted on Socha Consulting's blog that it is killing its ranking that made up a component of its annual survey since its inception caused a small stir among the vendors covered in the report. However apparently very few vendors shed any tears over Socha-Gelbmann's decision to drop these rankings from its annual report, even among those it benefited. (read more)

Asigra makes no bones about it: it unabashedly advocates that companies keep all of their backup data on disk under the management of its Televaulting software. The reasons Asigra provides for keeping backup data on disk are plentiful as well: Faster backup and recovery times; elimination of tape management tasks; deduplication technologies that minimize data storage requirements for disk; and, data that is easy to copy and replicate locally and remotely. Yet if there is anything companies know about backup, it is that managing backup data and its recovery over the long term, whether it is on disk or tape, is where the complexity can start to surface. (read more)

This blog entry is the first in a series of interviews with Autonomy's new Director of eDiscovery, Jack Halprin. Jack is well known in the eDiscovery world having held a lead role on the EDRM Metrics Project and for his work at Guidance Software. In this first interview, Jack gets to talk about what drew him to Autonomy and his first impressions coming on-board. Autonomy's breadth and diversity of offerings can be intimidating from a consumer's viewpoint, so we get an expert's inside view of what makes them different. (read more)

The reliance that organizations have upon electronically stored information (ESI) is phenomenal. Not only is ESI the life-giving blood that courses through corporations, ESI is becoming more important in safeguarding and reducing risk as organizations deal with increased litigation. eDiscovery is the process of searching, locating, and securing ESI that is used as evidence in litigation. Any company not complying with a request to perform eDiscovery can incur costly and potentially disastrous side effects. (read more)

There are many more enterprise applications that can be dual purposed for eDiscovery and business benefits. Desktop search can help users find and designate ESI. Firewall and spam systems can actually be used to collect IM conversations. Content Management Systems expand the potential search/preservation criteria and can decrease the potential volume of ESI by enabling active expiry of unnecessary items. The important thing is to think beyond point solutions and bring legal, business and IT to the table to extract the greatest value from the 'cost of doing business' in America. (read more)

Overall, SMB's have a potential shortcut to 'Litigation Readiness' through SaaS outsourcing of the primary messaging and file storage systems. Legal definitely needs to be involved in the provider selection and RFP process, but IT should welcome another sponsor to the project. Legal should request documentation on system capabilities (search/culling for Rule 26 disclosures and Meet & Confer), Chain of Custody, exception reporting, deposition fees for authenticating evidence (Rule 30(b)(6)), SLA's for retrieval rates, physical/electronic security and the actual storage format of the ESI. The last is particularly important in case the requesting party makes arguments for using alternative search engines on the ESI. Governmental agencies are required to store records in an open format like MSG files for email, so any SaaS provider who has public sector clients should utilize an open format storage system. With a little research and diligence, SMB's can leverage SaaS to achieve litigation readiness in a cost effective manner. (read more)

Email and other electronic communications are defacto business records and public agencies must take steps to preserve and give access to government records or face the consequences. (read more)

It's hard to talk about data center consolidation without the topic of server virtualization and VMware popping up somewhere in the conversation. Nearly every company I talk to is testing or using VMware somewhere in-house and looking to expand its adoption of VMware in 2009. But companies may still start and stop their virtualization conversation with enterprise servers. Despite the server sprawl that most companies are looking to deal with, a more insidious problem that they also recognize that they need to deal with is corporate desktop management. Companies may have thousands or even tens of thousands of desktops in-house and while the hardware costs for these desktops have become fairly nominal, the soft costs of configuring and supporting them mount. Add in the hidden costs of accessing and searching the data on these desktops should companies find themselves subject to an eDiscovery request and the costs of desktop management can quickly escalate to match or even exceed that of server management. (read more)

Whether we are talking about email, IM, Text, VOIP or any other communication stream, recent cases have challenged the presumption of corporate privacy, privilege and ownership. Proper policy and training seem to be the answer for domestic corporations who use a SaaS email provider or other US based Text/SMS provider. When dealing with world-wide infrastructure, a corporation must engage specialized counsel and actively monitor cases and publications like those of The Sedona Conference Working Group 6: International Electronic Information Management, Discovery and Disclosure. Although the rules seem to be changing, companies can make informed risk vs. cost decisions to minimize their potential exposure if they are cognizant of the issues and do not just pretend that they do not exist. (read more)

As corporations slowly face the consequences of unmanaged information assets, they have started to form ESI retention policies, acquire email archives and other enterprise technologies needed to track and dispose of newly created communications. It is much simpler to enable policy, process and technology to handle the go forward content than to deal with years or decades of accumulated unstructured content. Most public corporations have existing preservation requirements to deal with on top of possible long term retention regulations. (read more)

The recent Quon v. Arch Wireless decision has raised many questions about a company's ability and right to monitor employee communications. Fortunately, a deeper read shows that the real issues centered around the employee's reasonable expectation of privacy, which a well documented and communicated policy solves handily. So an employee might ask, "I know that the company owns my email, but do they really read it?" (read more)

In looking back at the earliest generations of Information Lifecycle Management (ILM), Business Analytics and Data Loss Prevention (DLP) products, we can see a wasteland of interesting technology that was too early for the market. We are now seeing the hints of resurgence in products adjacent to enterprise discovery based on the 'secondary benefits' of corporate archiving, preservation and collection. Basically, corporations seem to be recognizing that the infrastructure required to establish an efficient, defensible discovery process can and should be leveraged to provide other business functionality. (read more)

Last week's announcement that yet another vendor has made adaptations to its deduplicating system to support archive retention as a new system feature can mislead companies into drawing the conclusion that if this appliance works for backup that it is suitable for archiving as well. Many companies are frugal when it comes to storage purchases so if they can buy a disk-based appliance that addresses both their archiving and backup needs, they may be tempted to do so. (read more)

The State of Texas recently passed H.B. No. 2833 stating you must hold a license as a security services contractor if you "engage in business activity in which a license is required." The law then outlines that a company acts as an "Investigations Company" under Section 1702.104, (4) (b) "...includes information obtained or furnished through the review and analysis of, and the investigation into the content of, computer-based data not available to the public." Investigation is a key word in the statute and appears to be broadly defined and it has lead to confusion and controversy. (read more)

Simon: Despite what people may think, archiving changes constantly. Laws are constantly changing which can force companies to re-classify data they had previously archived under a different set of rules or policies. Legal holds are creating new sets of problems of companies. Now you must add another set of retention and management rules on top of rules that you already have in place. These new rules may only apply to a subset of the data. Legal holds require companies to take segments of the information that are managing now, group it separately and then manage it by this separate set of policies. (read more)

One of the hardest things in a HR investigation is to disprove false accusations of sexual harassment, inappropriate content, fixed bids and many other scenarios. It is very easy to fake printed out email and IM conversations that would not stand up to close scrutiny if still in electronic form. The only way to prove that someone did not send a message is to have all the messages within that time frame and the ability to retrieve them. Think about how hard it is to set the context for an off-color email without having the complete historical conversations between a supervisor and a former employee. (read more)

Enterprise level discovery requires enterprise level technology or by definition it becomes 'unduly burdensome' for any but the smallest cases. Recent opinions from federal judges and appellate courts on both coasts have made it clear that the discovery process, technology and personnel are under increasing scrutiny. Plaintiff's counsel are reading the same opinions from Judge John Facciola (United States v. O'Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008)) and the 9th Circuit (Quon v. Arch Wireless). Many will interpret them as a signal to initiate Daubert style hearings to force corporations to defend their search engines, communication systems and the discovery effort in response to discovery demands. (read more)

Enterprise and holistic investigation, as concepts and strategies, generate many questions, concerns and risks. Our investigator, legal and security community is made up of 50+ professionals. Our community helps develop working Investigation Playbooks to intersect pressing investigative issues. For example, our community collaborates with us to develop Investigation Playbooks to manage retention policy, business continuity and information security issues. Some of our community members includes KPMG, ARC Group NY and individuals, such as Steve Harper of Crucial Security and Randy Barr Chief Security Officer at WebEx. (read more)

The 9th Circuit of Appeals reversed a district court ruling, Quon v. Arch Wireless, in which a wireless text messaging service turned over message transcripts to their customer, the Ontario Police Department, during an investigation on an officer's excessive use of the department provided pager. The fact pattern has some twists and turns, but buried within the opinion are issues that are worth exploring for every corporation contemplating out-sourcing their communications via SaaS or other external provider. (read more)

There is a growing perception among those who are intimately involved with information management that the discipline of information management is changing. The fact that it is changing comes as no surprise to anyone as everyone knows that a change has to occur. The question is, "Is this just an evolutionary change or is a paradigm shift in information management about to occur?" (read more)

Keywords are easy to understand and even easier to misuse. Beyond the science of 'precision and recall' there needs to be process, communication and metrics to reach the standard of reasonable due diligence, this 'comfort level' that Judge Grimm cites. The process needs to identify the known exceptions to your chosen technology. Have you asked or tested for the ability to search across different formats of email, files, databases, images, voice, video and languages? Do you even know the composition of your ESI collection and how that will affect any searches? (read more)

All of this does not mean that it is impossible to conduct a reasonable, defensible search, preservation or collection. Instead it points out the need to understand your environment and to document the efforts made to test and analyze the capabilities and exceptions of potential eDiscovery technology before putting them to use. With more innovative CIO's looking to implement enterprise search and analytics, it is critical that the legal department collaborates on the system requirements and testing process. (read more)

So when you are shopping for a solution to your growing messaging environment, remember to make sure that the solution you pick will not turn into the retention nightmare down the road. Ask the hard questions about retention management, migration strategies and storage formats. (read more)