A New Year’s Wish List

Jim Shook

Rather than trying to make predictions for 2012, which I tend to avoid, I thought it might be interesting to put together a short wish list of things that I hope for in 2012.  The usual suspects immediately sprang to mind:  that Legal and IT learn to effectively communicate; companies begin to defensibly delete their stale and legacy data, more eDiscovery moves in-house, etc.  Those all seemed to be a little much to absorb in January, so instead I put together a much more achievable “To Do” list with some additional resources to help.

Don’t Be Scared Of  “Archiving”

Despite surveys suggesting otherwise, our experience is that email remains the most important and painful eDiscovery repository in a company.  Email sprawl also creates operational costs and risks when it’s not properly managed.  Yet many legal departments either block or fail to assist the efforts of their IT counterparts when they decide to do something about email.  Many times, this failure is because they really do not understand email, or their understanding of an “archive” implies that they will be keeping everything forever.

In reality, modern archives enable companies to implement and enforce retention policies on email, which is a strong foundation to enable defensible deletion of email.  Better archives can also enable similar management of other content repositories, such as Sharepoint and fileshares.  A good archive, with associated policies, will improve and reduce the cost of operations, and make eDiscovery cheaper and easier.

Learn more:

• Advanced Discovery, Why (and How) To Archive Email

• EMC Corporation, A 15 Minute Guide To Archiving

Dive Into Machine Classification and Coding

Machine-based coding for document review is a hot topic.  We’re learning that in many cases, people just do not do a great job in reviewing and coding large volumes of information.  However, machines are built for this type of work because they are consistent, never tire and are cheaper than human review.  An open and shut case, right?

In reality, there remains a misunderstanding about how these technologies actually work, and how they can be successfully deployed and defended in a litigation matter.  Clearly they hold great promise, but there’s a lot of work to be done before they become mainstream.

Learn more:

• Honorable A. Peck, “Search, Forward”
• Ralph Losey,  “Secrets of Search Part 3”
• Maura Grossman  & Gordon Cormack,  Technology Assisted Review in EDiscovery

Be Proactive With Social Media

Many companies are using different types of “social media” to more effectively and rapidly reach their customers, partners and even their own employees.  Technologies such as Twitter, Facebook, wikis and blogs are being used daily, and it’s likely we’ll see some even newer technologies develop in 2012.

Yet social media is not a free ride.  Gartner’s Debra Logan predicted a year ago that by YE 2013, half of all companies will have produced social media content in response to an eDiscovery request.  But today, most companies do not have policies to regulate social media content, nor do they have much of an idea on how they might preserve and collect that ESI in response to a regulatory or litigation matter.

Learn more:

• Alitia Faccone, It’s Not Personal, It’s Business:  Or Is It?
• On Demand Webinar, No Longer A World Apart

Understand “The Cloud”

Ahhh, the Cloud.   Depending on your vantage point, Cloud Computing may be the answer to every issue you have or the most overhyped idea since push computing in the 90s.  The IT department is attracted to the cloud’s operational efficiencies and flexibility, and the business enjoys the rapid rate of deployment.

But don’t dive in without being informed.  “Cloud Computing” is actually an umbrella term representing a number of different deployment and service models.  Operational and cost benefits found with cloud computing should be weighed against the loss of control that comes with those deployments.  In some cases, that’s an easy trade-off.  In others, particularly where compliance is concerned, it can be more difficult.  Even in tougher cases, better informed teams might be able to get the best of both worlds by leveraging private or hybrid cloud deployments.

•  Jim Shook, “If Your Head Is In the Clouds, Keep Your Feet on the Ground”

• CIO Update, “Top 7 Legal Things To Know About Cloud, SaaS and eDiscovery”

2011 eDiscovery Year End Wrap-up

It has certainly been a banner year in eDiscovery.  Judge Scheindlin kicked things off with a bang with her decision in National Day Laborer Organizing Network v. U.S. Immigration and Customs Enf. Agency[1], that the federal government must include metadata in Freedom of Information Act (FOIA) products because certain key metadata fields are an integral part of public records.  This ruling struck fear into every government agency and would have created the need for massive changes to the way they kept and produced records.  However, Judge Scheindlin withdrew the opinion in June explaining that, “as subsequent submissions have shown, that decision was not based on a full and developed record.”  She further stated that “[b]y withdrawing the [previous] decision, it is the intent of this Court that the decision shall have no precedential value in this lawsuit or any other lawsuit.”  I guess we are left to draw our own conclusions from that statement.

2011 also saw the rise in importance of machine based classification and coding.  This was emphasized by the keynote speech given by Judge Andrew Peck at the Carmel Valley eDiscovery Retreat in July. 

A New Year’s Resolution for Records Managers

President Obama recently challenged every agency / organization of the federal government to define what they were going to do to improve their organization’s records management programs to ensure federal records were retained, preserved and protected for later discovery and response to public inquires.

I for one believe that the President’s challenge should be embraced by every professional records manager in the United States, if not the world.  Here is one national leader, who openly acknowledges that records management within the US Federal Government is ripe for improvement.  Similar improvements are called for in the private, state and local government sectors of this country.  By-in-large, this profession is due for a significant shot in the arm and this Presidential challenge is that opportunity, so let’s make the most of it.

We have all seen New Year’s Resolutions for most everything one can imagine so, why haven’t we seen one for Records Management Programs?

Finding Key Players in Legal Hold Notification, Preservation and Collection

As a practitioner, I have had many conversations and discussions recently on leading practices and trends related to litigation hold notifications and preservation orders.  Organizations routinely have the need to effectively manage preservation for litigation, internal investigations and for varying regulatory purposes.

Since the amendments to the Federal Rules of Civil Procedure there has been much discussion on this topic, but limited practical solutions to the problem.  The Pension Committee decision has made notifying & managing custodians & “key players” effectively a core requirement for most legal departments.

The challenge with the legal hold notification, preservation & collection processes for most organizations is the “ad hoc” nature of defining systems of record, ESI & custodians & executing preservation in a defensible manner.  Notifying custodians a timely manner and keeping an audit trail to defend

Presidential Memorandum Regarding Management of Government Records

Much has already been written in the media regarding President Obama’s Memorandum dated November 28, 2011 on managing government records and Executive Order 13589 dated November 9, 2011 which promoted efficient government spending.  However, in multiple meetings with various federal agencies since this memorandum and Executive Order were written in November very few agencies have defined a action plan for getting their arms around this challenge

Setting up an effective records management program in a large organization is tough.  If it were easy, more would have already done so and the Presidential Memorandum on this subject with reference to an Executive Order would not have been necessary.  President Obama and his

Beware Of Dupes

Jim Shook, Director, E-Discovery and Compliance Practice EMC Corp

If The Bard were around today, his work on eDiscovery would undoubtedly include an update to one of his more famous turns of phrase:   “To de-dupe or not to de-dupe – what is the question?”

We all want to save money during eDiscovery, and the typical enterprise contains a substantial amount of duplicate information that increases the costs and risks of processing and review.  For example, we know that a single email message to four colleagues can immediately result in five copies of that message – the sender’s copy, along with a copy for each recipient.  With replies and forwards, the number seems to increase almost exponentially.  Similarly, laptops and fileshares abound with duplicates of documents from collaborative efforts or resulting from saving an “extra” copy of a document sent with an email message. All of these extra copies drive up eDiscovery costs.

How De-Duplication Can Help In eDiscovery

The temptation in eDiscovery is to quickly get rid of all of these extra copies – to de-duplicate the information so that we can spend less in collecting, processing and reviewing that information.  We commonly see duplication rates of 15 to 30% depending upon the source data and the environment.  Thus, a company spending $1,000,000 for collection and review in a case could, in theory, save $150,000 to $300,000 just by eliminating duplicate data.

In reality, de-duplication for eDiscovery can be a tricky and worrisome process.  It’s important to understand exactly what – and how – you will be de-duplicating data to insure that you get exactly what you expect and do not run afoul of preservation requirements or compliance concerns.

The Technology Behind De-Dupe

A typical “document” can have many different parts, so when we perform de-duplication, we need to understand which of those parts are being used to determine whether two documents are the same.  Without being too philosophical, it’s clear that no two documents can ever be completely identical.  At minimum, even if they are identical in all other respects, they will be stored in two different locations.  In some cases, even that fact – the location or “path” of the document — could be important.

To take a closer look at this issue, let’s start with the file “badStuff.doc”, a file containing

New FRCP Amendments – Clarification or Adding Confusion

The preservation of electronically stored information (ESI) is one of the biggest sources of confusion in eDiscovery.  This area of eDiscovery has been governed almost entirely by common law, as the Federal Rules of Civil Procedure (FRCP) do not explicitly address the many questions inherent in the duty to preserve, such as trigger, scope, duration, etc.  It has also been argued that the FRCP gives insufficient guidance regarding the imposition of sanctions for violations of this duty.  That’s why, just a short five years since the last one, there has been a push by many in the legal community to amend the FRCP.

Consider this complex and ambiguous definition of the duty to preserve from the Supreme Court of Texas:

A party must preserve “what it knows, or reasonably should know is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, [or] is the subject of pending discovery sanctions.”  Trevino v. Ortega, 969 S.W.2^nd 950 (Tex. 1998).

During the federal rulemaking process, the Advisory Committee on Civil Rules holds

EU Juggernaut Germany Looks at Business Related e-Mail Different than from a Pure Privacy Perspective?

Tom Reding

Recently, the Higher Labor Court of Berlin-Brandenburg Germany ruled that an employer has the right to access and review an employee’s work-related e-mail during his / her absence from work.

The ruling makes it very clear that an employee’s rights to use the company’s e-mail system for private communications does not preclude the employer from reviewing an employee’s business related e-mail.

The circumstances behind this ruling were as follows:

• The plaintiff (employee) could not work due to a long-term illness.
• The employer was unsuccessful in locating the employee to get her consent, so that they  could access and read her business related e-mails, in order to respond to a customer’s request.
• After several weeks, the employer circumvented the employee’s password, read and printed the employee’s business related e-mails.  (The employer did not read or print any e-mails labeled “private”.

The plaintiff (employee) requested a court order prohibiting her employer from accessing her e-mail account during any future absences without her explicit consent but, was unsuccessful in obtaining such an order.

The Higher Labor Court rejected

Bringing (More) eDiscovery In-House

Jim Shook, Director, E-Discovery and Compliance Practice EMC Corp

Companies large and small continue to grow the size of their in-house departments to manage litigation.  The recent 8^thAnnual Litigation Trends report from international law firm Fulbright and Jaworski found that 53% of larger companies have 5 or more in-house attorneys managing litigation, up from 46% last year.  The growth is far more significant in smaller companies, where 16% now have at least 5 litigation attorneys, more than triple the number from last year.

Why are companies increasing the size of their in-house litigation departments?  The survey does not try to answer the question, but our anecdotal evidence shows that companies are trying desperately to better control their costs and risks in litigation, particularly in the area of electronic discovery.  Although it’s been almost five years since the amendments to the Federal Rules of Civil Procedure, eDiscovery remains a difficult and expensive process for most companies.

As companies add in-house lawyers, they often look to have

Legal Speaks Latin. IT Speaks Geek. Reducing Risk and Cost through the Common Language of eDiscovery

Following the theme of our flip book “The Technologists guide to eDiscovery Law” and “The Lawyers guide to eDiscovery Technology”, EMC’s CLE Luncheon in Chicago last Thursday aimed to bridge the gap between the two camps of IT and Legal.  Almost five years since the FRCP was amended and there is still appears to be a disconnect.  One of the biggest gripes by IT is that they are told what to do with no explanation as to why.  There is the perception by Legal that IT is not interested nor is there a need to explain the reasoning behind their requests.

The interaction at the luncheon was eye opening to those who held those beliefs.  It quickly became obvious by their presence and their questions that IT professionals are very interested in the workings of an eDiscovery matter and want to know how they can best help. If they know the reasons why certain data is being requested, they can be of great assistance in making sure the preservation and collection is done not only to the letter of the law but also according to its spirit.  This benefits Legal (and the organization as a whole) in a number