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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.

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BYOD: Bring Your Own . . . Disaster?

While the “Bring Your Own Device” phenomenon seems to be gathering even more momentum, few organizations seem to be working on the compliance issues that BYOD can create.  BYOD is clearly an important technology wave, but without some thoughtful planning, this BYOD could easily turn into “Bring Your Own Disaster”.

BYOD can be loosely defined as employees using their own devices to access company resources and complete job-related tasks.  In the real-world, BYOD can be as simple as an employee using personal funds to purchase a cell phone for business use; or as complex as an employee-purchased tablet (or laptop!) with monthly wireless charges reimbursed by the company and access to the company network encouraged.   These devices can boost productivity but with an impact.  Some companies have found that several hundred applications — typically unapproved and many completely unknown to the company — are touching their network from employee smartphones.

BYOD creates concerns that need to be addressed, or at least considered.  In the more complex situations (usually with laptops or tablets), both corporate and personal data will probably be mixed on the device.  If a mixed use device contains illegal or infringing data, is the company responsible?  If a lawsuit or investigation requires access to the employee’s data, does the company have the right — or obligation — to collect relevant information from the device?  What if it has the obligation but not the right?   And what happens if data is clearly relevant to a company issue but also clearly personal to the employee — will the employee resist?

Specific regulations regarding data retention or security may also be triggered.  How does an employer insure that record content created on these devices, which may have never touched a corporate server, is retained for required retention periods?  Insuring compliance with regulations such as HIPAA (related to health information) and 17a-4 (broker-dealer communications) is unlikely without the company having some access to and knowledge of information created and/or stored on the device.  Outside the US, the problem can become more difficult because data privacy laws further limit the company’s access to the information.

What can you do?  Although the ultimate solutions will likely be technology based, start with policies.  Dust off your records retention, email retention, corporate network, cell phone, security and other related policies and read them with an eye on BYOD issues. Consider whether the company can or should mandate access to a personal device used for corporate purposes, or create an obligation granting access to the device if it has data necessary for the company’s regulatory requirements or legal requests.  There is not yet much guidance from the courts on whether this is sufficient, but putting these requirements in writing is a start.

Longer term solutions may be technology based.  Access to company resources via smartphone and tablets can be controlled through security applications installed on the device.  Applications (like EMC’s Syncplicity) can deliver the convenience and open collaboration of an application like DropBox but with corporate controls.  And some creative planning can insure that most email and documents available on a smartphone or tablet are also on a corporate network for easier access and retention.

But beware —  employees and employers may not see eye-to-eye on many of these concerns. For example  over 75% of employees said they would not give an employer access to see the apps installed on their device and would not permit a tracking application to identify their whereabouts.  

Like it or not, BYOD is here.  Giving it some consideration and planning now can help you ensure the productivity side of BYOD without the disaster.

Adversary Case Assessment: Putting Your ESI To Good Use

In eDiscovery, we tend to focus most of our attention internally, on our own electronically stored information (ESI).  This makes sense because the data is under our control, and if we cannot get this work done properly, we significantly raise the risk (and cost) of handling eDiscovery.

But what about the other side – what should we do when the other parties in litigation produce their ESI to us?  This is an issue that seems to be discussed very little.  Most companies just have their outside litigation counsel handle this data – but that’s what most of us did just a few years ago with our own ESI.  For companies using an eDiscovery solution for in-house collection and early case assessment, shouldn’t there be a matching process for the data received from other parties?

ACA – Adversary Case Assessment

There’s a lot of value that can be derived from analyzing the other side’s ESI, especially when it is juxtaposed against our own data.  If you plan ahead in your eDiscovery process, you can insure that you’re able to “view” the data in a few different groupings – your data; their data (by party if there’s more than one) and together.  Let’s look at some of the leverage that we can get from using our in-house solution in this manner.

File types.  How many different ESI file types did the other side produce?  In most cases, you should expect a good mix of email, spreadsheets, “productivity” files such as Microsoft Office, Excel and Powerpoint, image files (e.g. jpg/gif) and maybe even various log files, possibly in text form (.txt, .log, etc.).  You might probe a little more deeply:  did they produce any NSF or PST files (the local caches of email that many users keep on their desktop or fileshares)?

If you didn’t receive at least a few items representing these file types – why not?  There may be good reasons – you may have agreed to limit eDiscovery, maybe none of those file types contained relevant information, etc.  But ask the question – first of yourself, and then, if necessary, of the other side.  In many cases, parties frequently focus on email – largely ignoring laptops, fileshares and other repositories of relevant information.  Also, because these files are frequently produced as attachments to emails, it may give the appearance that these repositories were searched.  Thus, run another filter check — are the non-email items just attachments to emails, or were they produced on their own?

Volume.   Overall, does it seem like a fair amount of ESI that’s been produced, i.e. does the number of items seem right?  Again, this will vary greatly from case-to-case but you should have a good idea of how much “stuff” you are receiving.  Back in the paper days, we might question the other side if we produced a warehouse of boxes and they sent us a slim manila folder.  How does their production compare to your production?  Better yet – start to filter the produced ESI by custodian.  Is there a significant amount of information produced from key players?   How does it compare to your key people?  Interactive charts and graphs can go a long way here in helping you to understand what you’re seeing.

Date ranges.   Take a look at the date of the information and see how the volume of information varies over time.  Email will normally be grouped by its date, but files could be grouped by date of creation, modification or last access date.  Is there a high volume of information during the time that you would expect to be most relevant?  What items, in each file type category, are the oldest and most recent by date – and does that fit announced data retention policies and the scope of eDiscovery?  Do the dates and volumes fit with your understanding of the case?   Do this work first by using filters to exclude your data, and then include your own for a second review.  How much does that change the picture, if at all?  Does the other side seem to think that a different range of dates is more important than you did?

Email Domains.   Look at all of the email domains (e.g. emc.com, cnn.com, espn.com) that are represented in the production as either senders or recipients.  Are there any “new” companies of interest?  Maybe there’s a third party show in email that could have important information available by subpoena.  Did the other side include any information sent to or from their law firm?  If not, was every item really privileged — and did they produce a privilege log?

Email Threading.  Because of its nature, email can be “threaded” into conversations so that you can view a nicely ordered chain of emails that has gone back and forth between parties.  Even one or two message “side conversations” became very noticeable when a group of emails has been properly threaded.  Using your own key email messages as a starting point, thread the messages to include the other side’s production.  Are there new “back channel” or side conversations that the other side held internally, which you never saw?  Were key messages re-forwarded well after the fact  – say weeks or months later as “reasonable anticipation of litigation” began to occur?  Did you receive another copy of emails representing conversations with the other party (which you already produced) – or did they not produce those messages (and if not – why not?).

Wrapping Up

These are just a few very basic ideas of how you can begin to evaluate the other side’s ESI production.  Leveraged properly, in-house eDiscovery solutions can be another powerful tool for corporate (and law firm) counsel to rapidly get their arms around a case and begin to evaluate the other side’s production, too.  Happy ACA-ing!

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.

The Hidden ROI in eDiscovery…Faster, Better, Cheaper…! Part I

Faster, better, cheaper was the mantra at NASA as it set goals to improve quality, efficiency and better manage costs after Ted O'Neilseveral setbacks…it was a way to set goals and measure success from a “top down” approach of looking at it from all perspectives and seeking to better quantify risks & rewards in various programs…expect quality, but demand efficiency!!!

Faster, better, cheaper was clear theme from LegalTech 2011…good Information Governance makes good business sense!

The hidden Return On Investment in eDiscovery lies in understanding the entire spend…not just the obvious third party costs and understanding and quantifying risks in the current process.

I have been working with several clients in developing business cases and Continue reading

Do Cloud Providers Create More Risk?

Bryant Bell, eDiscovery Expert, EMC Information Intelligence Group

Bryant Bell, eDiscovery Expert, EMC Information Intelligence Group

One of the questions that I get asked a lot, especially since I work at EMC is,

“Hey, how does eDiscovery help customers in their ‘Journey to the Cloud’?” I think about this and I don’t believe that you can use eDiscovery technology to Journey to the Cloud. In fact, from a legal stand point the cloud creates more corporate risk for ESI (electronically stored information) that may be subject to a regulatory or litigation matter. This is because once a company decides to make that “Journey” they really don’t know where their information goes and lives. It gets thrown into that powerful dispersed infrastructure of servers here, servers there, servers everywhere. But the customer who owns the ESI is left scratching his head when he gets that inevitable call from the SEC to produce documents and he finds Continue reading

Research Reveals Organization’s Top Challenges in Achieving Governance Objectives

Just last week, EMC issued a press release regarding a recent study they did with the Ponemon Institute that explores the

Principal Product Marketing Manager, Information Governance

immediate issues organizations are facing regarding their enterprise governance, risk, and compliance (eGRC) strategy. The study finds that the largest barriers to meeting eGRC challenges are a lack of defined strategy and lack of enterprise cooperation and collaboration. The study surveyed 190 individuals involve in eGRC, mostly from large organizations. Only 20% of organizations have a clearly-defined eGRC strategy that pertains to the entire enterprise, and 33% admit they have no eGRC strategy at all.

Anyone familiar with Records Management, Archiving or eDiscovery in their organization knows that it is easier to create systems for specific data sets or regarding specific industry regulations. Well-defined spaces in heavily-regulated industries are easier to work on, because so many of the variables are explicit and understood. It is infinitely more challenging to create organization-wide systems that understand the complex interplay of risks and requirements that must be balanced.

In order to create enterprise-wide eGRC system, it’s important that organizations have Continue reading