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Big Data: Big Value or Big Trouble?

Like “the Cloud”, the term “Big Data” has many different definitions.  But no matter how you define it, Big Data is not a fad.

Some use the term to denote the incredible variety, velocity and volume of data that we are creating and using every day.  (Here is a very interesting infographic on that point).

Others use the term to represent huge data sets from which we can intelligently extract useful trends and business information.  In fact, the promise of Big Data is not just the ability to mine data for sales purposes, but also for customer and employee sentiment, and even the idea of “predictive compliance”.

Regardless, as with the Cloud, there is enormous potential value in Big Data — but there are also costs and risks that need to be weighed in the process.  Among these are the eDiscovery and security risks associated with keeping a significant amount of data past its (normally) useful life.  Our friend Barclay Blair has published some interesting thoughts on Big Data, the law and eDiscovery.

As in so many other areas, business will drive the need for big data initiatives; but compliance and legal need a voice in the process to adequately cover potential risks and issues.

Archiving To Help Solve BYOD

We have written before about the security, privacy, compliance and legal issues created by the Bring Your Own Device (BYOD) phenomenon.  And if BYOD seems difficult here in the US, it’s far more difficult in the EU with its stronger protection of personal data.  With BYOD, personal information is being mixed with corporate information on an employee-owned device, often with no real corporate oversight, creating all kinds of new problems.

The UK’s Information Commissioner’s office recently published guidance to assist organizations in dealing with BYOD concerns in the EU.  Of course, a main point is that having a clear and effective BYOD policy is a crucial step for any organization.  But one issue, along with its related advice, really caught our attention:

     “If copies of data are stored on many different devices. . . there is an increased risk that personal data will become out-of-date or inaccurate over time … [or] retained for longer than is necessary … [because] it is more difficult to keep track of all copies of the data.  Using devices to connect to a single central repository of data can help mitigate this risk.”   [Emphasis added].

Centralized archives, operating and retaining data according to company policies, serve this purpose.  For example, rather than having email (and attachments) stored on various email servers, in PST files and on devices for every custodian, it should be stored, maintained, accessed (and ultimately deleted) from a single instance email archive.  Each device can serve as a “window” to that centralized content so that it’s accessible as needed, and then deleted.  This avoids creating new instances of each message that are stored and managed for each individual device requiring access to the data.  And this same concept can be applied to documents from file systems, Sharepoint, even records management systems.

Not every organization will have to meet EU (or even EU-style) data requirements.  But centralizing and managing content is a solid best practice that will pay dividends no matter where you are located.

Archiving: The Secret Sauce to IT Transformation (Part 2)

Lady Backup asserts that there is a key enabler in IT transformation that EMC hasn’t paid enough attention to: archiving.
To understand why, let’s look at the 3 key benefits of archiving:
Benefit 1: Archiving increases operational efficiency.
How old are the emails stored in your email system? How frequently are files older than a year accessed in your file servers? How many sites are sat untouched in SharePoint?
Archiving allows you to be smart in how you retain content by storing aged content outside of your production environment. First, this reduces the storage capacity required. But also a lean production environment improves backup and recovery, increases application performance, and eases application maintenance/upgrades.
Benefit 2: Archiving improves end user productivity.
Data growth is not just a challenge for the infrastructure – it is also a challenge for end users to find content.
Take this scenario: you are trying to find a Word document created a year ago. Was it sent to by email? Did you save it to your PC hard drive? Or did you store on a network drive? Or maybe it was uploaded into a SharePoint site? Where do you look first??
Your archive can be the first stop for users to do granular searches for content, saving time hunting around for the file or worse, recreating it because it can’t be found.
Benefit 3: Archiving consistently manages retention policies.
Retention management not only keeps your data volumes under control, but from a corporate governance perspective you can consistently enforce retention policies.
Archiving allows you to consistently and automatically execute policies that meet your company’s policies and/or your regulatory requirements.
Let’s face it – data volumes are challenging a “keep everything forever” mentality.
Next week, we’ll look at considerations for an archiving solution. LB

Archiving: The Secret Sauce to IT Transformation (Part 1)

Lady Backup is making her debut to EMC SourceOne Insider.  But don’t let my name fool you.

I have many years of archiving experience dating back to EmailXtender. Fortunately EMC had the wherewithal to invest in a next generation architecture that resulted in EMC SourceOne, whereas the rest of the competitors are still stuck on first generation.

And if my own experiences weren’t enough, I also married Mr. Archive last year. This union in fact sets the foundation for future discussions we’ll have about the intersection of backup and archiving.

Notice I said “intersection.”

I continue to champion that a backup is NOT an archive. But the underlying architecture that EMC is developing allows for the consolidation of both backup and archive, positioning us uniquely in the market.

But that’s a point for a future conversation.

Let’s talk about archiving.

Given my history, I think EMC so far has missed the opportunity to include archiving as a key enabler to the IT transformation discussion.

Don’t get me wrong – we need to transform our IT Infrastructure from a static, physical model to one that is dynamic, agile and infinitely scalable. But the question in my mind is whether you are transforming your infrastructure to store content that is outdated, no longer of value, or potentially damaging to your organization.

The way I see it, we need to transform information management as part of IT transformation. Archiving is an enabler to manage the volume of data that is collecting in your production environments – allowing you to systematically manage what you are storing, where and for how long.

You will find that my blogs are short and sweet. Next week I’ll give you my views on the three benefits of archiving. LB

Activating Your Information Management Shield

We talk with companies every day about how they can be better at managing their enterprise information.  Good policies, with technology to enable and enforce them, can help insure that records and compliance information are retained for the right amount of time, while also enabling the deletion of stale and useless information which has outlived its retention period.  Good information management processes insure that protected information is stored in the right place, operational efficiencies are enhanced by focusing on useful information and the e-Discovery process is easier and more efficient.

Many organizations know that they should implement information management initiatives, but often have difficulty in providing concrete reasons to the business.  If your organization is looking for more reasons why good information management is valuable, two recent cases provide some great reasons:

  • If you have an information governance policy, it may help you to defeat a claim for sanctions even if data has been deleted; and
  • If you don’t have an information governance policy, and you delete data that was subject to compliance requirements, the lack of a policy can help to establish the bad faith necessary to award sanctions.

Diligence As A Shield

In Danny Lynn Electrical & Plumbing, LLC v. Veolia Es Solid Waste Southeast, Inc., 2012 U.S. Dist. LEXIS 62510 (M.D. Ala. May 4, 2012), the plaintiff requested sanctions for the defendants’ alleged failure to properly implement a litigation hold.  Specifically, the plaintiff claimed that defendants had deleted nine email accounts and kept in place an auto-delete function which removed email from the trash after 10 days.  They also alleged that the defendants improperly sent notifications to employees on legal hold that they should continue to delete email messages to comply with email account size limitations.

The court found it significant that the defendants had deployed an email archive to capture all of its email messages.  (Interestingly, the court did not discuss or make any findings about how the archive had been setup, configured or managed).  In addition, in finding that there was no bad faith (a requirement in the 11th Circuit), the court found it important that defendants “began using a software system that archives all emails”:

The court’s impression is that the defendants have expended great effort to insure that the plaintiffs receive information from both their live and archived email system by providing document review technology and allowing access to its database.  All of these factors added up to the court finding that no sanctions were warranted.

Lack of Diligence Can Be A Final Straw

The flip side to the protection offered by information management can be found in FDIC v. Malik, 2012 U.S. Dist. LEXIS 41178 (E.D.N.Y. Mar. 26, 2012) where the court also considered a spoliation motion for the deletion of emails.  The email messages related to a law firm’s prior representation of a mortgage company.

In determining whether bad faith was present to enable sanctions, the court noted that the subject email messages were required to have been preserved not initially for litigation hold, but under compliance requirements — professional responsibility and ethical rules.  The court found that retention under the compliance requirement was especially important to this case:

A regulation requiring retention of certain documents can establish the preservation obligation necessary for an adverse inference instruction where the party seeking the instruction is ‘a member of the general class of persons that the regulatory agency sought to protect in promulgating the rule.  The court held off on a final decision pending an evidentiary hearing.

Being Proactive With Information Management

We all know that litigation holds are difficult to implement and are almost never perfect.  Sometimes something bad actually does occur– a custodian is inadvertently omitted, a handful of emails are lost.  But more often, nothing bad happens at all.  Still, even in those cases it can be difficult (and time-consuming and expensive) to fight off the other side’s claim that something “must have been lost.”  A good information management policy, with tools and education to enable it, can go a long way towards showing good faith and protecting your organization from harm.

Getting Legal to Support Your Email Management Project

Electronic Archives are one of the least understood – and yet one of the best – technologies available to the enterprise for improved operations, compliance and eDiscovery.  Yet while most IT Jim Shookprofessionals are familiar with the benefits of Email Archiving, many see only the operational improvements that an archive can bring.  So when they need to enlist in-house counsel’s assistance to approve the policies for the archive, they often miss the benefits to the legal department, making it more difficult to convince legal to help.  In fact, discussing the benefits of the archive is a critical step.  Many lawyers still misunderstand the purpose of Email Archiving, incorrectly viewing it as a tool to save everything forever – something they are almost always against.

If you’re having difficulty getting legal on board with your archiving project (or if you’re a lawyer and want to better understand how archives can help you), here are three significant areas that are improved with a good email archive deployed as part of an overall Email Management initiative.

Electronic Discovery

Electronic discovery is the process of identifying, holding, collecting, analyzing and producing electronic stored information (“ESI”) to meet the requirements of litigation, investigation or open records / FOIA requests.  Email messages are the most frequent – and arguably the most important – locations for ESI.  Email is also one of the most expensive and risky sources of ESI because most companies do not effectively manage their email.  This often forces enterprises, under the risk of sanctions for deleting data that is relevant to a lawsuit (a penalty known as “spoliation”), to search in virtually unlimited locations for email and then to process and review huge volumes of messages.  Some enterprises have no established process for eDiscovery and are forced to retain backup tapes of email servers and fileshares as a stopgap measure, at enormous risk and expense.  Worse still – some companies simply pretend to meet their obligations through a quick search of a few mailboxes on the email server, knowing that email is stored in other locations they cannot efficiently search, and then cross their fingers to hope for the best.

Almost all of this difficult and risky process can be avoided with an effective Email Archive operating as part of an overall Email Management initiative.  With a good archive, the enterprise’s eDiscovery team can quickly search through just one location for all email, substantially reducing cost and risk.  An effective Email Management program can further cut downstream cost and risk by enabling the defensible deletion of email messages that do not need to be retained.  (If you have not already begun, you will also want to consider how you handle other ESI repositories for eDiscovery).

Compliance

Good compliance programs today include processes related to the company’s electronic information, especially email.  Companies of any size or reach are subject to anti-corruption legislation such as the Foreign Corrupt Practices Act (FCPA) in the US and the UK Bribery Act.  Regulators also place demands on ESI retention and review, in addition to normal records retention requirements.  And regardless of whether we like it, email is a location where many of our records are received and maintained.

A centralized archive for email – with the ability to enforce company mandated retention policies – can be a big win for compliance. An effective email sampling process can help to insure compliance with high-risk requirements like the FCPA, UK Bribery Act and even Sarbanes-Oxley.  An archive with user-directed archiving capabilities enables a strong foundation for complying with records management and regulatory retention requirements.  Similarly, with these controls in place, the enterprise can feel more comfortable with deleting expired content, knowing that it’s not subject to any further retention requirements.  And for concerns on privacy and sensitive data, an issue that grows each day, an archive can help to insure that sensitive data does not leave the company’s firewalls without being encrypted.

Operational

Companies without archives often retain all of their email on their server, and the archive will drive savings through reducing top-tier storage requirements, shrinking backup windows and sizes, and substantially improving the efficiency of the email servers.  Companies with mailbox size quotas have different issues – and with an archive they can quickly move to eliminate local email caches (typically PSTs or NSFs) that are unmanaged, insecure and can lead to disaster in eDiscovery matters.  Users can have virtually unlimited mailbox sizes with no noticeable impact on their day-to-day work – even when working remotely or on an airplane.

Although operational improvements may not be your legal department’s main focus, your lawyers want the company to be more efficient, and helping them to understand these improvements is also an important step.

What’s Next

If your enterprise does not yet have an Email Management initiative, get legal and IT together to talk about the benefits.  You will need help from legal in drafting and authorizing appropriate policies.  (In determining best practices for policies and archiving, your legal counsel might be interested in The Sedona Conference’s guidance on Email Management).  If you have already started, check to make sure that legal fully understands the benefits, has provided appropriate retention policies, is actively part of an efficient eDiscovery process, and that someone is verifying that users are maintaining information subject to regulatory frameworks.

The Hidden ROI in eDiscovery…Faster, Better, Cheaper…Part III

Part III: The Legal ProfileTed O'Neil

An often overlooked link between the IT footprint and the FRCP is the notion of “source mapping” or “mapping of sources” for the Rule 26f “Meet & Confer Conference” where the parties need to discuss & disclose potentially responsive ESI by “category or type”…if the organization understands what systems and repositories contain potentially responsive information, that ESI can be managed appropriately for the matter at hand and as an indicator as a source for future eDiscovery…most organizations have certain types of legal & regulatory challenges like employment, Intellectual property or other types of litigation and key regulatory issues which form a pattern of a “Profile”.

If these systems and applications are identified or “mapped” a categorization & classification of systems, data & ESI can be developed and used as an early assessment tool and a strategic tool to ensure proper preservation of ESI and notification of potential custodians.

Put another way, employment cases and Intellectual Property cases may share some common sources of ESI (email, file shares, collaborative spaces), but typically also have systems & repositories for business information related to the particular business function that is subject of the legal inquiry. It is rare that all systems or applications would contain responsive ESI.

Here is an opportunity to move away from the “Hold All” order and develop a defensible response protocol for legal and regulatory matters and target responsive ESI and manage the non-responsive ESI according to standard business practices. If you can’t find the handful of relevant ESI in the terabytes of data, then “retain all” may look like the “best option” in a bad situation.

Here is some hidden ROI:

Once Responsive ESI is identified, preserved & collected, it is a reasonable assumption that the non-responsive ESI is not subject to legal hold…but subject to ordinary lifecycle management (RM) or part of the organization’s GRC efforts within a sound Information Governance Program and only retained based on categorization & classification of information.

Leverage the opportunity to do some “house cleaning”…gain file visibility and perform file remediation…dispose of ESI that has outlived its useful life in a defensible, scalable manner.

Understanding all these different elements of the People, Process & Technology in your eDiscovery process is the key to controlling costs & mitigating risks.

Our team has developed an easy-to-use “eDiscovery ROI Calculator”, which is now available for the iPad.

If you would like to discuss this topic further…please comment below or send an email @ ted.oneil@emc.com.