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eDiscovery in the Post-PC Era

Originally posted by Jim Shook on http://www.kazeon.com/blog

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

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

The term “Post-PC Era” refers to a key transformation in computing, characterized by a shift to small form-factor, mobile devices and enhanced collaboration. EMC’s own Jeetu Patel talked about and wrote an insightful blog post on this issue as part of the Momentum Conference at EMC World.

At its core, the Post-PC Era is about empowering individuals to be more efficient and productive by accessing content when they need it, from whatever device they wish to use, and enhancing the tools that enable them to get work done. It’s also about collaboration with others, not just across the enterprise but with partners, customers and other parties that don’t live behind your corporate firewall. That’s great for business – but what does the Post-PC Era mean for eDiscovery? As a whole, the legal profession is still struggling mightily with eDiscovery in the current era. And now we need to start thinking about a whole new paradigm of computing that creates new and unusual problems to solve? Fortunately, while the Post-PC Era creates some tough new challenges, it will also bring some significant tools and benefits that should help us. Let’s take a look at a few key areas.

Challenges

EDiscovery challenges presented by the Post-PC Era are many, but can be grouped into a few basic categories:

External ESI.A key concept of the Post-PC Era is that data is readily available at all times, and much of this data will be located outside the corporate firewall. Much of this data will also be under the de facto control of third parties –Salesforce.com, Facebook, Twitter and others spring quickly to mind. Even so, it will still be your responsibility for compliance and eDiscovery. You may even decide to encrypt this eternal data at the client level for security purposes, before it is transmitted to the provider, making it far more complex to search. Understanding how this data can be accessed and collected – both from a contractual standpoint and a technology perspective – will be critical.

Rich Media. Although text information in its various forms, both old and new, remains important to eDiscovery, rich media (video, audio, etc.) becomes more prevalent every day. But video and audio files tend to be large and difficult to search. How can you tell if a 5-minute video is potentially relevant to your case? Even if you had the ability to extract and convert the audio portion of that file to readable text, that’s probably not sufficient to determine relevance. Will someone need to actually watch each video? And if so, what do they look and listen for to determine relevance? Worse still — if it costs about $20,000 for legal review of a gigabyte of data, how much will it cost to review a terabyte of video?

Esoteric ESI. I actually lump several challenges into the “esoteric” category. Let’s start with collaborative technologies — powerful tools that enable groups to share and work on the same data, in real time or asynchronously, enabling them to complete projects more quickly. But these tools generate content that tends to blur the issues of authorship and ownership. For example, if eight people collaborated on a document – three of which were partners and two were customers – who can be “charged” with the content of that document, and who owns it? Could you use information against a party without proving that they wrote the specific section of the document, and how would you do that? What would you need to authenticate such a document at trial?

The Blurring Of Personal and Work Lives. The line between the workday and one’s “post-work” or personal life is blurred (or for many, obliterated). Largely because of that blur, many sites that were tied to our private lives (e.g. Facebook, Twitter) are beginning to include work-related repositories, and vice-versa (e.g. LinkedIn). So what happens with data that I create in my personal Facebook account, when that data is directed to a work colleague and relates to a work issue? What about private information that I generate on LinkedIn, which I normally use for work-related information? Does it matter whether I’m posting during the “work day” or after work (whatever time that might be)? We already know that using these tools after hours can cause issues with our non-exempt employees, who must be paid overtime if they are performing work tasks on off hours. How can you monitor for those issues when those employees have so many ways and locations to do work when they choose?

Data Everywhere. Another Post-PC Era challenge is that data can (and is) located almost anywhere – and everywhere. In his blog, Mr. Patel noted that knowledge workers have between three to seven devices; do you need to check all of those individually for ESI in an eDiscovery case? What’s the best practice to collect data from a Blackberry, an iPad, a personal cell phone (with mixed personal/work content) and a laptop? Good compliance practices may help to limit data that is solely located on a mobile device (i.e. it provides a window into the Cloud) but in most cases, data can be found everywhere.

The Benefits

But don’t despair! The Post-PC Era offers some opportunities and leverage that we did not have before when handling eDiscovery issues. Here are a few that will help:

Big data. The notion of “big data” is also driving the creation of more powerful and more accessible tools for intelligent, machine review and classification of data. We’re not quite sure how these tools will be deployed to assist in the eDiscovery process, but they hold a great deal of promise. Just think about this: Instead of sending your 10 TB of collected data for review by humans, which would take months and cost millions – how much traction can you gain if that data can be crunched and classified by intelligent machines in a matter of hours!

The Cloud. Done correctly, the Cloud can be an incredible benefit for eDiscovery. Having many mobile devices access common information stores implies that the information must be centrally located to provide access. Companies that build or use infrastructure to maintain this information in a Cloud infrastructure will be able to better manage and secure their information. Much as an email archive can make eDiscovery of email very simple, a good cloud infrastructure can make it easy to discover against large repositories of unstructured data.

Ubiquitous Connectivity. Frequently, eDiscovery is difficult because searching remote devices for content requires either physical proximity to the device, or using very slow connections. (Think about how you would pull photos from an iPhone, or collect from laptops for employees working in the field or small offices using low-speed DSL; etc.). Fortunately, another implication of the Post-PC Era is that the devices we use will have connectivity, and the speed and security of those connections will continue to increase. This should make identification and collection of data on these devices, from a remote location, much easier to handle.

Federated Tools. A final implication of the Post-PC Era is that companies need to have a way to federate search and access to content. Most businesses will need a method to look through company data stores to find records or to re-use content, so federated technology (one search spreading to all of the relevant repositories) is a must. Since this is essentially a business requirement, there’s a good opportunity to build this technology directly into solutions – which can then be easily re-used for eDiscovery and Compliance purposes.

Conclusion

As usual, the key to cracking the eDiscovery challenges, in the Post-PC Era or otherwise, is to understand the technologies and then apply “legal common sense” (no – it’s not an oxymoron!) to the processes. That will require legal to work well with IT, so make sure that your eDiscovery team is already cross-functional.

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One Response

  1. […] An excellent post by Jim Shook of EMC Kazeon on digital evidence challenges in “the post-PC era”, including online evidence in general, online productivity systems specifically and business records in personal online repositories: “eDiscovery in the Post-PC Era” […]

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