Electronic Discovery Navigator

MailArchiva Announces Availability on Sun Microsystems' OpenSolaris Operating System

MailArchiva Announces Availability on Sun Microsystems' OpenSolaris Operating System

"MailArchiva today announced that its flagship product line, MailArchiva has completed successful validation of the OpenSolaris(TM) Operating System (OS). Thousands of organizations around the world leverage MailArchiva's email archiving capabilities to address a broad range of business needs -- from regulatory compliance to mail server performance improvements, data accessibility and ediscovery.

As both enterprise systems and open source leaders, Sun and MailArchiva have much in common and, according to CEO and founder of MailArchiva Jamie Band, "validating MailArchiva on the OpenSolaris platform means Sun customers have a new, cost effective alternative to meet their archiving requirements."

"MailArchiva's commercial open source Enterprise Edition enables organizations of all kinds to take their investment in Sun technology a step further, and satisfy their email archiving requirements," said Juan Carlos Soto, vice president of global market development and engineering at Sun Microsystems. "We're pleased to have MailArchiva's archiving solution available on the industry's best open source platform, the OpenSolaris OS.'"

New Rule 502: A Little Help Is Better Than None

New Rule 502: A Little Help Is Better Than None

"Make no mistake about it. For every lawyer who ever feared sending privileged communications to a non-privileged person -- in particular the other side -- the president's recent signature on an amendment to Federal Rule of Evidence 502 is a godsend.

One of the great fears of such an accidental mistake is now substantially ameliorated. And the relief does not come any too soon. In a world of electronic discovery and the possibility of sending an e-mail to the wrong person by looking at one's computer keyboard cross-eyed, Rule 502 will now assure the errant lawyer that the mere act of sending privileged documents to an unintended recipient will not act as a waiver of the subject matter of the inadvertently disclosed communications so long as the lawyer took reasonable care in the review of the documents.

Indeed the legislation goes as far as jurisprudentially possible to provide this protection not just in federal court but in certain state court proceedings.

So can we neurotic lawyers now breathe a big sigh of relief that the Congress has come to our rescue? Not really. Because four really important issues in this context are not addressed by new Rule 502."

Cutting-Edge Tools to Help Streamline EDD

Cutting-Edge Tools to Help Streamline EDD

"The quickly increasing costs of e-discovery have had a dampening effect on lawyers' ability to formulate the best case strategy for their clients. That may be about to change. The e-discovery process is on the cusp of moving from basic to advanced, or version 1.0 to version 2.0. This article examines how lawyers can use new technologies to reduce costs to clients while still complying with discovery obligations. Ultimately, lawyers who embrace new e-discovery tools will be better equipped to meet their clients' needs with cost-effective solutions.

Electronic data ("e-data") presents unique problems in discovery. Although the data can be more easily searched, it is also more voluminous, widely dispersed and sometimes more difficult to track down than paper documents. E-mails alone often constitute thousands of pages of data in a case. Moreover, the fluid and changing nature of e-data allows multiple drafts of documents to be created quickly and easily. Metadata and the various platforms used to store e-data create additional complications in the e-discovery process. These complications, particularly when not planned for or managed properly, can result in significantly increased litigation and discovery costs."

Oracle and De-Duplication Suffer a Blow

Oracle and De-Duplication Suffer a Blow

"Specifically looking at Nursing Home Pension Fund v. Oracle, No. C 01-00988 SI (N.D. Calif. 2008), a shareholders' class action brought by purchasers of Oracle Corp. stock against officers of the company and related defendants, I noted that defendants produced more than 1,665 e-mails to or from Oracle CEO Larry Ellison, but that only 15 of those e-mails were identified as having come from Ellison's e-mail box

The facts underlying the e-mail spoliation claim are confusing as the court presented them and, at the risk of insult, confused. The court first found that it was "undisputed that defendants produced only 15 e-mails sent or received by Ellison from Ellison's own e-mail files, and defendants do not contend that all of Ellison's e-mails were preserved in his files." It immediately then noted defendants' explanation that "over 1,650 of Ellison's e-mails were produced to plaintiffs from the files of other Oracle employees" and defendants' reliance upon Wachtel v. Health Net, Inc., No. 2007 WL 1101436 (D.N.J. April 10, 2007), for the proposition that plaintiffs were "not entitled to receive multiple copies of Ellison's e-mails."

Remarkably, the court rejected defendants' explanation because it disagreed with their contention that plaintiffs were not entitled to duplicates of e-mails. Rather, the court found spoliation because it thought that it "could have been helpful to plaintiffs to demonstrate that certain e-mails were discovered in Ellison's files; otherwise, for instance, Ellison could argue that he never actually read or received an e-mail that was sent to him, and thus had no knowledge of its contents.'"

GPS Evidence Might Drive Your Case Home

GPS Evidence Might Drive Your Case Home

"A reporter recently interviewed me about in-car GPS navigation systems as evidence. Aside from vehicle tracking devices planted on suspect vehicles, neither of us could point to more than a few matters where GPS evidence played a role in court; yet, its untapped value to criminal and civil cases is enormous. Think how many murders, rapes, burglaries, robberies, thefts, kidnappings and drug deals could be solved -- and innocent persons exonerated -- by reliably placing suspects in space and time. DNA just puts the accused at the scene. Reliable GPS data puts the suspect there between 9:42 and 10:17 p.m. and reveals where she came from and went next.

GPS-enabled personal travel assistants store both waypoints and typed destinations, distinguishing a suspect who claims coincidental presence from one who entered the address of the crime scene. Some units offer hands-free phone interfaces, recording frequently called numbers and holding unique identifiers for each linked telephone, enabling prosecutors to more persuasively tie the navigation system to a particular user.

With many units costing under $150, these marvelous devices are appearing on more dashboards and will be appearing in more courtrooms; but the reporter was thinking too small. There will soon be a location-enabled device in near-constant use by almost every man, woman, 'tween and 'teen in the U.S. And it won't be on dashboards. It's as close as your cell phone.

Late in 2005, the FCC mandated that cell phones must be capable of geolocation to support 911 emergency calls as part of the first phase of its Enhanced 9-1-1 program. By September 11, 2012, phase II of the rules kick in, requiring cell service providers to deliver extremely precise location-enabled data. By law, your phone is going to know exactly where it is and will be transmitting that information to the network. Most already do."

A Reasonable Route to ESI Confidentiality

A Reasonable Route to ESI Confidentiality

"Of the many burdens litigators must shoulder, among the most irksome may be disputes over what documents are confidential and what agreements and markings are necessary to keep them that way.

These confidentiality issues have become more pressing in the era of e-discovery, as ever-burgeoning masses of electronically stored information inundate the discovery process. Determining and demarcating the confidentiality of ESI may overwhelm harried counsel who must review their client's data before producing it to an opponent.

A recent decision in the Southern District of Indiana offers an economical, common-sense approach to confidentiality -- one that practitioners and courts alike should consider.

In Containment Technologies Group Inc. v. American Society of Health System Pharmacists, No. 07 Civ. 997, 2008 WL 4545310 (S.D. Ind. Oct. 10, 2008), the plaintiff claimed that an article written and published by the defendants, which compared an "aseptic isolator" medical device manufactured by the plaintiff with competing products, was defamatory.

When discovery commenced, the defendants requested the production of documents concerning the plaintiff's testing and design of its isolator. The plaintiff objected to producing the documents without a protective order, arguing that some of the requested documents contained proprietary information. The parties were unable to agree on the terms of such an order. And so, the plaintiff moved for application of its proposed protective order and the defendants moved to compel production -- and also submitted a dueling version of the protective order along with their motion."

Records management: BEWARE, PREPARE

Records management: BEWARE, PREPARE

"Increases in data breaches and the development of electronic discovery (e-discovery) are prompting firms to closely re-examine their records retention and management policies. New breaches seem to be reported monthly, if not weekly. In August alone, data breaches were announced at Countrywide Financial, Bank of New York Mellon and Best Western, potentially affecting millions of customers. Such violations point to the need for companies to destroy electronic records and documents they no longer need, because additional records mean additional potential liability.

Destroying unneeded records also helps companies in terms of storage costs. The sheer volume of e-mails, attachments and other electronic records is growing rapidly, says Bobby Balachandran, chairman and CEO of Exterro, a company that provides legal hold and discovery management software solutions. That volume carries a cost, too, in the additional time it takes attorneys, accountants, etc., to go through unnecessary electronic records, Balachandran adds.

According to Chris Bradley, VP of marketing for MessageGate, nearly 80 percent of electronic discovery cases involve e-mail, so firms should employ tools that store e-mails based on the type of information in the messages. E-mails should be classified and stored according to importance: e-mail with information like cafeteria menus in one place; basic business information in another; and highly sensitive e-mails, such as communiqués between attorneys and clients, stored in yet another.

Such classification and storage enables a firm to purge the unimportant e-mails after a short period and establish rules for retention of other e-mails; it also lets employees retrieve pertinent e-mails more quickly in the event of a court case, according to Bradley."
 

Do Your Searches Pass Judicial Scrutiny?

Do Your Searches Pass Judicial Scrutiny?

"Electronically stored information is increasing exponentially, and bills from law firms and discovery vendors to deal with this vast sea of data escalate significantly each year. Jason Baron, the director of litigation at the National Archives and Records Administration, believes that ESI is growing so fast that even with unlimited funds and human resources it will soon be impossible for humans to review these large document populations.[FOOTNOTE 1] Still, lawyers faced with potential malpractice claims and sanctions are loath to try new methods for handling the problem. It is time for change.

The traditional means used by litigators to address ESI is the application of keywords and Boolean search terms to identify relevant and non-privileged materials.[FOOTNOTE 2] While acknowledging that this method is unquestionably deficient, a recent article published in this publication concluded that "the available evidence suggests that keyword and Boolean searches remain the state of the art and the most appropriate search technology for most cases."[FOOTNOTE 3] We agree that, in a perfect world, if the parties can nevertheless meet and confer, and agree upon keywords to reduce the population to manageable proportions, the traditional judgmental method can be made to work. However, this is an imperfect world where plaintiffs and defendants do not always agree, and are not always equally motivated, to reduce costs. In fact, it is often quite the opposite. Moreover, even where the sides use judgmental sampling to agree upon keywords, the costs nevertheless usually remain too high."

Autonomy Unveils Legal Hold Solution

Autonomy Unveils Legal Hold Solution

"Autonomy Corporation, a provider of infrastructure software, has unveiled an advanced legal hold solution that automates the multi-faceted process necessary to preserve electronically stored information across laptops, desktops and all enterprise data sources.
According to Autonomy, the legal hold solution combines and automates custodian notification and management with electronically stored information (ESI) identification, preservation and collection - all on a single platform, reducing the risks and costs associated with the legal hold process and the duty to preserve by extending an organization's control of its information to the edge of the network.

Unlike other legal hold point solutions, Autonomy's legal hold solution offers a legally defensible process that combines automated ESI identification, preservation, and collection with notification and interview management, and the ability to automatically suggest custodians and data sources, Autonomy said.

Additionally, unlike stand-alone preservation and collection solutions, which require persistent connections to laptops and desktops for search, identification, and collection, Autonomy's solution is reportedly geared towards global enterprise use by using policies to drive preservation in-place and offline collections with a 'Preserve-In-Place' capability for laptops and desktops, in addition to enterprise data sources. Autonomy applies intelligent hold policies against an enterprise's entire corpus of data, while allowing for multiple forensically sound collection options."

 

earlyCASE SaaS Accelerates eDiscovery Early Case Assessment

earlyCASE SaaS Accelerates eDiscovery Early Case Assessment

"Atlanta-based earlyCASE, an innovator in advanced early case assessment for Electronically Stored Information (ESI) and eDiscovery, today announced full support for Lotus Notes and IBM Domino email files (NSF's) in its eDiscovery early case assessment software available as Software-as-a-Service "SaaS" from www.earlycase.com. earlyCASE is a SaaS web-based eDiscovery application which uses an on-demand deployment model (runs on your local PC) and analyzes the ESI that your computer can access without the data ever leaving your computer or network.

earlyCASE allows you to see and understand all of your data before it is processed for discovery. It supports multiple languages, extracts metadata, generates hash values, detects duplicates and creates a local inventory database of documents and emails. earlyCASE allows users to make informed discovery decisions and easily cut down the size of data sets through filter and culling rules before going into the discovery process and review.

We are excited to expand the capabilities and features of earlyCASE along with the low cost and flexibility that eDiscovery early case assessment as a software- as-a-service delivers  
Companies spend millions of dollars annually on the review and analysis eDiscovery phases. By assessing data early and reducing the sets of data going to review, the cost of processing and the time to review can be drastically reduced in the overall eDiscovery lifecycle."