Search results matching tag 'E-Discovery'

Look to the Future for Litigation Readiness

pateiten — Thu, 11 Jun 2009 00:37:00 GMT

By Mike Peebles

As I work with organizations investing in litigation readiness, I come across individuals that are new to the role and those that are more seasoned in this field. Those that are new to their role seem to be less than enthusiastic about their new found job responsibilities and indicate that they “missed the wrong meeting” or they “drew the short straw.” I admit that I laughed-out-loud when Don with the Office of the Medical Inspector at the Department of Veterans Affairs mused that “For my sins I was put in charge of our archives…”. Listen to the complete 9 minute recording here.

If I contrast this demeanor with those that have been working on litigation readiness for a longer period of time I find the difference when they realize that they don’t have to solve the problems for existing litigations but rather look at their organizations' litigation trends and prepare for the future.

What an opportunity! By nature I think it makes humans feel better to complain. Often when we express our dislikes or frustrations and “get them off our chest” we may not have solved anything but find solace in the fact that the person listening to us shares the same dislikes & frustrations and we’re not alone. With litigation readiness though, we can open our doors to understanding these problems to help us focus on where to start to “get our electronic house in order.”

So if you’re new to the litigation readiness team – look to the future. If you’ve been working on litigation readiness for some time – thanks for listening.

Structured Records Management - Taking control of the structured data

uraas — Wed, 27 May 2009 15:16:00 GMT

In my last post I spoke about how the transfer of structured data from the source system into the records management system works. Now that we have covered this step, lets look at some of the special features that you want to manage structured data as records.

Like any other record, you want to be able to preserve the authenticity, reliability, integrity and usability of the data. The authenticity is maintained by the system storing an audit trail of the whole transfer process and any subsequent actions taken on the records. The reliability is based on the collaboration of application owners and records managers in the definition and classification of the structured records model, which means that the transferred data is based on a design by people who know all the facts about its source and usage.

That leaves me to elaborate a bit more about the integrity and usability.

The structured records get transferred into the records management environment as XML files. Each transfer batch is a self contained group, consisting of a number of XML files that contain the data and a summary XML file that contains a detailed description of what the data files contain. To be able to use the data and the summary file in future, each of them is described by a XML schema definition. All of these files together form a single package and the records management rules are applied at the package level, meaning that the same security and retention rules apply to all files of a single transfer. The integrity of the individual files can be proved at any stage based on hash comparison technology between the summary and the data files.

Usability means that the structured data is not lost once it resides in the records management environment. Text indexing can be used to provide searching across the contents of the XML files to find batches that include data pertinent to a particular circumstance, e.g. all batches that contain customer number XYZ or order number 123. This is the kind of full text searching that people use across all machine readable formats as part of early searches in the e-discovery or freedom of information processes. However, structured records should also be available to other methods of searching, e.g. for reporting engines. Having the data in XML format with a full schema description allows us to use our Record Query Server to create an ODBC data source pointing to the XML files, which can then be used by a whole variety of SQL query tools - this is a distinct advantage that you get from storing structured records as XML data, rather than as flat text file or PDF formatted report output. If the original application still exists, and its algorithms are desirable in the analysis of the data, the records management system provides a re-load function to send the XML based data back to the original source database schema.

In all our design of HP TRIM functionality we pay attention to the characteristics of records as prescribed by ISO 15489: authenticity, reliability, integrity and usability, and as you can see, structured records management is no exception. By adhering to this principle we are able to create a truly unified records management environment, encompassing all formats of information, physical, electronic, unstructured and structured, meaning that you can apply a single set of consistent records management policies across all your enterprise content.

Email Management?

pateiten — Fri, 15 May 2009 03:22:00 GMT

By Noel Rath

AIIM (Association for Information and Image Management) has produced an excellent report from their survey on "Email Management - the Good, the Bad, and the Ugly" (© AIIM 2009, www.aiim.org) -- available at www.aiim.org/emailmanagement2009.

Here are some of the key findings.

On average, our respondents spend more than an hour and a half per day processing their emails, with one in five spending three or more hours of their day.
“Sheer overload” is reported as the biggest problem with email as a business tool, followed closely by “Finding and recovering past emails” and “Keeping track of actions”.
Email archiving, legal discovery, findability and storage volumes are the biggest current concerns within organizations, with security and spam now considered less of a concern by our respondents.
Over half of respondents are “not confident” or only “slightly confident” that emails related to documenting commitments and obligations made by staff are recorded, complete, and retrievable.
Only 10% of organizations have completed an enterprise-wide email management initiative, with 20% currently rolling out a project. Even in larger organizations, 17% have no plans to, although the remaining 29% are planning to start sometime in the next 2 years.
Some 45% of organizations (including the largest ones) do not have a policy on Outlook “Archive settings” so most users will likely create .pst archive files on local drives.
Only 19% of those surveyed capture important emails to a dedicated email management system or to a general purpose ECM system. 18% print emails and file as paper, and a worrying 45% file in nonshared personal Outlook folders.
A third of organizations have no policy to deal with legal discovery, 40% would likely have to search back-up tapes, and 23% feel they would have gaps from deleted emails. Only 16% have retention policies that would justify deleted emails.

E-Discovery Survey Results - Barriers, Priorities and Requirements

pateiten — Wed, 13 May 2009 13:57:00 GMT

By Claudia Currie

We recently hosted an online survey in the US to identify the key challenges organizations are facing regarding their e-discovery strategy. Over 50% of the respondents were from organizations with over 2,000 people, 35% of them were Director and VP level and 25% at C-level roles.

The survey highlights are below, and you can view the full results analysis here.

I hope you find it interesting to see what your peers are focusing on regarding their e-discovery strategy and that it will provide valuable insight into the challenges they are facing in relation to information management, and how they plan to address these issues.

Key Findings:

Decisions regarding e-discovery strategy are predominantly made by the general counsel, while decisions relating to e-discovery technology are usually handled by the CIO.
The greatest concerns regarding e-discovery are risk (of not having an appropriate strategy in place), lack of infrastructure and the potential cost of facing a request for e-discovery.
The primary obstacles to establishing an e-discovery strategy are insufficient understanding of e-discovery requirements and lack of funding.
The main types of information organizations are looking to address with an e-discovery solution are e-mails, office documents and data held in databases.
Around 50 percent of organizations are familiar with the Electronic Discovery Reference Model (EDRM), the industry accepted model for e-discovery best practices.
Most organizations expect an e-discovery solution to comprise a mix of services and technology.

Following this first e-discovery survey we are now conducting a new survey on e-discovery best practices and their outcomes. If you would like to participate in this survey please click here.

What is Electronic Records Management?

pateiten — Sat, 25 Apr 2009 15:18:00 GMT

By Claudia Currie

AIIM – the Association for Information and Image Management - is the leading non-profit organization focused on helping users to understand the challenges associated with managing documents, content, records, and business processes. They recently released a presentation which provides you with an overview of Electronic Records Management (ERM). The slides are from the AIIM ERM Certificate Program covering technologies and global best practices for managing electronic records.

Click here to download it.

California Set to Enact E-Discovery Law

pateiten — Thu, 23 Apr 2009 16:20:00 GMT

By Patrick Eitenbichler

Joshua M. Briones and Anahit Tagvoryan published a valuable e-discovery alert on the DLA Piper site. The article compares and contrasts the proposed California Electronic Discovery Act which will likely be signed into law this year to the Federal Rules of Civil Procedure.

Take a look...

Task Force Finds Electronic Discovery Process in Need of “Serious Overhaul”

pateiten — Thu, 23 Apr 2009 16:09:00 GMT

By Dean Gonsowski, Clearwell Systems, Inc.

The American College of Trial Lawyers Task Force on Discovery (”Task Force”) recently came out with their final report based on their survey of the Fellows of the American College of Trial Lawyers (”ACTL”). The project was conceived as an “outgrowth of increasing concerns that problems in the civil justice system, especially those relating to discovery, have resulted in unacceptable delays and prohibitive expense.” After releasing an interim report, the Task Force issued its final say on the topic, which honed in on three major themes borne out by the Survey:

1. Although the civil justice system is not broken, it is in serious need of repair. In many jurisdictions, today’s system takes too long and costs too much. Some deserving cases are not brought because the cost of pursuing them fails a rational cost-benefit test while some other cases of questionable merit and smaller cases are settled rather than tried because it costs too much to litigate them.

2. The existing rules structure does not always lead to early identification of the contested issues to be litigated, which often leads to a lack of focus in discovery. As a result, discovery can cost far too much and can become an end in itself. As one respondent noted: “The discovery rules in particular are impractical in that they promote full discovery as a value above almost everything else.” Electronic discovery, in particular, needs a serious overhaul.

3. Judges should have a more active role at the beginning of a case in designing the scope of discovery and the direction and timing of the case all the way to trial. Where abuses occur, judges are perceived not to enforce the rules effectively. According to one Fellow, “Judges need to actively manage each case from the outset to contain costs; nothing else will work.”

In short, the Survey revealed widely-held opinions that there are serious problems in the civil justice system and that the discovery process, though not broken, is “badly in need of attention.” While not cited specifically, a recent case highlights many of the Survey’s observations. In Fannie Mae Sec. Litig., 552 F.3d 814 (D.C. Cir. 2009) the Office of Federal Housing Enterprise Oversight (OFHEO) responded to a third party subpoena and in the process incurred $6M in electronic discovery expenses. While this case had a number of procedural nuances that fortunately make its holding fairly limited to the facts, this electonic discovery fiasco certainly is a poster child for a discovery process that is bursting at the seams.

The $6M problem started for the OFHEO when the individual defendants became skeptical of a limited production and obtained a Rule 30(b)(6) deposition, which confirmed that OFHEO had failed to search all of its off-site disaster-recovery backup tapes. This inquiry led the OFHEO to enter into a stipulated order to avoid further contempt hearings. As part of the stipulated order, the individual defendants submitted over 400 search terms, which covered over 600,000 documents. Overwhelmed with the burden of conducting such a search and the need to hire 50 contract attorneys, the OFHEO objected that the list of search terms was “tantamount to a request for the dictionary,” since it resulted in a “retrieval of approximately 80 percent of the office’s emails.” Unfortunately, the court ultimately held that the OFHEO needed to comply with the terms of the stipulated order even though the cost was a staggering “9 percent of the agency’s entire annual budget.” To add insult to injury, and despite their efforts, the OFHEO was found in contempt and sanctioned for not meeting the agreed upon discovery deadlines.

This $6M example brings us back to the Survey and the findings of the Task Force. They proposed a set of Principles (modeling and citing the Sedona Working Group) that would “shape solutions to the problems they have identified.” Several relating to e-discovery stand out…

Promptly after litigation is commenced, the parties should discuss the preservation of electronic documents and attempt to reach agreement about preservation. The parties should discuss the manner in which electronic documents are stored and preserved. If the parties cannot agree, the court should make an order governing electronic discovery as soon as possible. That order should specify which electronic information should be preserved and should address the scope of allowable proportional electronic discovery and the allocation of its cost among the parties.
Electronic discovery should be limited by proportionality, taking into account the nature and scope of the case, relevance, importance to the court’s adjudication, expense and burdens.
The obligation to preserve electronically-stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation; however, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.
Absent a showing of need and relevance, a party should not be required to restore deleted or residual electronically-stored information, including backup tapes.
Sanctions should be imposed for failure to make electronic discovery only upon a showing of intent to destroy evidence or recklessness.
The cost of preserving, collecting and reviewing electronically-stored material should generally be borne by the party producing it but courts should not hesitate to arrive at a different allocation of expenses in appropriate cases.
In order to contain the expense of electronic discovery and to carry out the Principle of Proportionality, judges should have access to, and attorneys practicing civil litigation should be encouraged to attend, technical workshops where they can obtain a full understanding of the complexity of the electronic storage and retrieval of documents.

As Oscar Goldman said about Steve Austin, the legendary $6M man: “Gentlemen, we can rebuild him. We have the technology…” The electronic discovery “quagmire” appears to need the same type of radical makeover. Data is proliferating at a rate far greater than the e-discovery competency of litigators and judges alike. Tools are out there that can help tackle the proliferation problem, but the need for, and ultimate use of, such tools must be appreciated by counsel on both sides of the “v.” Until notions of proportionality and cooperation start becoming common parlance for both litigators and judges we will unfortunately continue to see more $6M examples like Fannie Mae.

[This post on electronic discovery was originally published on Clearwell's e-discovery blog: "e-discovery 2.0"]

SourceOne customer speaks, but HP IAP customers boast

Lisa Dali — Mon, 20 Apr 2009 21:49:00 GMT

An EMC customer has spoken about the new SourceOne suite, saying:

EMC’s solution is not the cheapest.
They wonder if they’ve over-bought.
They’d like to see EMC add support for end-user access to the archive through mailboxes.

HP customers speak louder: Here’s what HP IAP customers are saying about HP’s comprehensive solution:Brunel University: “What we have [with HP IAP] is effectively the best 'find' button on the internet! Beyond just efficiency, the solution has helped Brunel further enhance its reputation for corporate integrity, and you simply can't put a price on that.”Coscon: “The software and hardware integrated solution delivered by HP has not only mitigated the risks we faced, but also helped us to realise real-time mail data management in an effective manner within a short period of time.”Dubai International Financial Centre: “With the HP IAP we have peace of mind knowing that we can be in full compliance with legal and financial regulations. It has made it far easier for us to retrieve any email we need— we can now do it in minutes.”

Government Launches Bold New Recovery Effort

pateiten — Thu, 16 Apr 2009 20:22:00 GMT

By Kurt Leafstrand, Clearwell Systems, Inc.

While we don’t normally report news on the blog, this article seemed important enough to repost in its entirety…

SEEKING NEW AVENUE FOR COST-CUTTING, GOVERNMENT LAUNCHES BOLD NEW RECOVERY EFFORT

WASHINGTON — Senior Administration officials today took the wraps off of their latest effort to stabilize the American economy: The nationalization of the electronic discovery industry. According to a senior official who declined to be identified, “Even before the beginning of the current turmoil, everyone acknowledged that electronic discovery costs were out of control. Now, with litigation accelerating and corporate earnings plummeting, something had to be done. Without this action, a significant number of leading American corporations would be in danger of shutting their doors due to the overwhelming burden of e-discovery.”

A Single Common Portal

Effective immediately, all electronic discovery projects are being centralized under a single authority, the National Electronic Record Discovery Institute (NERDI). The Institute will be launching a nationwide electronic discovery portal on April 1, 2009 at www.ediscovery.gov (see demo). The site will build upon the recent success of the government’s economic recovery accountability site, www.recovery.gov. Said one Institute official, “Just drop the ‘r’ and insert a ‘dis’, and you get eDiscovery. It really is the next logical step in the government’s efforts to help the country in a time of profound need.”

Industry experts initially expressed skepticism about the government’s ability to make electronically discoverable information available in an efficient, expedient, and secure manner. Early plans had the government using the U.S. Postal Service and the network of I.R.S. tax return servicing centers as the logistical backbone for managing the collection and processing of documents. However, after negotiations with the National Security Agency, this step was eliminated from the process. Instead, all electronically-generated information in the United States will be instantly processed and made available through the ediscovery.gov site. Commented an NSA spokesman, “We have all the information anyway; why not make it easily accessible, instead of pretending it’s not here?” As for security, officials stated that “individuals can expect the same level of security and identify protection they’ve come to expect from their financial institutions and credit card companies, along with the additional protection and responsiveness they’ve come to expect from the Federal government.”

The Future of the E-Discovery Industry

What will become of the existing electronic discovery industry, made up of hundreds of individual vendors with aggregate revenue estimated to be in the $2-3 billion dollar range? According to a senior-level NERDI director, “One word: toast.” However, a group of industry software vendors and service providers has expressed open skepticism about the ability of a historically incompetent, multilayered bureaucracy to deliver electronic discovery services more effectively than the competitive market.

One vendor pointed out that it will be “difficult for the government to establish itself as a credible player in electronic discovery with millions of White House emails still missing without a trace.” In response, the group of vendors that make up the Top 5 Software and Service Provider lists on the 2008 Socha-Gelbmann survey (Autonomy, Clearwell, Fios, FTI, Guidance, Kroll, and LexisNexis) have announced an immediate consolidation of operations under the name ClearGuideAutoKrolLexFTios. Gloated new incoming CEO Rick Wagoner, “Our expectation is to roll over the government’s efforts like our new name rolls off your tongue.”

[This post on electronic discovery was originally published on Clearwell's e-discovery blog: "e-discovery 2.0"]

Compliance concerns resulting from cross-border litigation

pateiten — Thu, 16 Apr 2009 20:13:00 GMT

By Patrick Eitenbichler

On April 7th, the Sarbanes-Oxley Compliance Journal published a great article written by Brandon Cook, Senior Product Marketing Manager at Clearwell Systems.

Brandon describes how the increasing number of business transactions across borders leads to more litigation, government inquirires, and compliance audits spanning international boundaries. Using a number of real-life examples, he shows the implications and then provides recommendations on how to get prepared for cross-border e-discovery.

Take a read: "Why Cross-Border Litigation is a Compliance Concern"