Electronic Discovery Navigator

Understanding Archiving Requirements: Seven Guiding Principles For A Defensible And Compliant Infrastructure Strategy

Understanding Archiving Requirements: Seven Guiding Principles For A Defensible And Compliant Infrastructure Strategy

" From the GC to the CIO down to the storage administrator, there has been no lack of discussion on new rules for managing data and electronic documents. Everything from regulatory compliance such as Sarbanes-Oxley to the Federal Rules of Civil Procedure has made IT aware that they need to be ready to archive more data longer. Yet the most common refrain heard is: "I know I need to do something, just someone tell me what I specifically have to do." How do you cut through the fog, and develop specific technical requirements for saving, managing and deleting data in an archival system? Despite confusion, archiving of data can actually be broken down into fundamental requirements.

Requirement 1: Need To Save All Types Of Data

The most common question asked: What electronic documents and data need to be saved? Only "official records," or documents, files, e-mail, instant messages? The answer to all of these is at various times: yes. Both regulators and especially the courts are expecting organizations to produce (hence have preserved or saved) a wide range of documents. All types of "electronically stored information" (commonly abbreviated ESI) are discoverable. It is important to note that from a regulatory or legal perspective, there is little discrimination of a document based on its medium.

These business and legal drivers create some clear archival requirements IT can follow:

Archiving systems need to be flexible and capable to handle many types of document media - Storage systems used for archiving need to be capable of handling a variety of electronic documents media, including e-mail, instant messages, files, etc

Archiving systems need to be capable of capturing both "official" records as well as "unofficial" documents - Archiving systems need the flexibility to handle input not only from official record and document retention systems, but also electronically stored information from a number of other systems."

Fed Rule of Evidence 502 Affects e-Discovery

Fed Rule of Evidence 502 Affects e-Discovery

"Federal Rule of Evidence 502, which took effect in September 2008, aims to ease fears that companies could accidentally waive attorney-client or work-product protections when they turn over reams of electronic data during litigation. The rule imposes uniform federal standards regarding such waivers. The rule was also widely touted as a way to relieve the crushing costs associated with the discovery of electronically stored information, but so far it hasn’t seemed to live up to that promise.

Among those who say Rule 502 is already having an effect are Cecil Lynn, of counsel in the law firm Ryley Carlock & Applewhite. He says the rule “provides a level of confidence” for litigants taking reasonable steps to prevent accidental disclosure. Lynn says he’s seeing more use of search-and-retrieval technology to cull privileged data prior to lawyers’ review, which should save money, time, and resources."

Pitfalls of Runaway E-Discovery Requests

Pitfalls of Runaway E-Discovery Requests

"Scenario No. 1: After receipt of a lawsuit, and again after receipt of request for documents, counsel for defendant discusses the need to gather pertinent documents, including electronically stored information. Defendant searches its computer system and locates no relevant ESI. Following depositions, a network server malfunctions and during a service call a computer technician identifies several gigabytes of relevant data in a dormant partition. Defendant immediately reports identification of the data to its counsel, who quickly notifies plaintiffs counsel. Plaintiff files a motion for sanctions, which is granted, including sanctions directly against counsel for their "gross negligence" in failing to identify potential sources of electronic information."

E-Discovery Thrives in Tough Times

E-Discovery Thrives in Tough Times

"This week's LegalTech conference in New York is witnessing a host of e-discovery product offerings, and why not? In a down economy, lawsuits are one of the very few growth markets.

As Gartner put it in a research report last month, "Litigation is counter-cyclical, and with more trouble in the economy, there will be more litigation."

Enterprise Strategy Group (ESG) senior analyst Brian Babineau cited a few reasons for e-discovery's enduring popularity.

Last August, Babineau said, the American College of Trial Lawyers released the results of a survey of about 1,500 trial lawyers. About 60 percent had cases that raised e-discovery issues, and 86 percent of those had issued or received a discovery request for electronically stored information (ESI) since the new Federal Rules of Civil Procedure (FRCP) went into effect in December 2006. And more than 75% of the respondents said that discovery costs as a share of total litigation costs 'have increased disproportionately due to the advent of electronic discovery.'"

Open Text Extends eDiscovery Offering

Open Text Extends eDiscovery Offering

"Open Text, a global leader in Enterprise Content Management (ECM) software, today announced that it has extended its new eDiscovery solution to its Open Text eDOCS customers. Now organizations, particularly corporate legal departments, will be able to significantly minimize the need for third-party processing and control the high costs of legal reviews by culling irrelevant information.

Launched in December (http://www.opentext.com/2/global/press-release-details.html?id=2154), Open Text eDiscovery Early Case Assessment is being offered through a strategic relationship with Recommind, the leader in search-powered information risk management (IRM). The solution combines Recommind's Insite Legal Hold application with the Open Text ECM Suite. The combination not only addresses the critical need for eDiscovery in an age of growing regulatory and legal challenges, it also lets customers tightly integrate eDiscovery within their broader ECM initiatives. Open Text eDOCS customers will gain expanded eDiscovery capabilities woven into their overall content, records and email management practices."