Electronic Discovery Navigator

California Rules to Amend Inaccessible ESI

California Rules to Amend Inaccessible ESI

"The only noteworthy difference between the federal amendments and the California amendments is their differing treatment of "inaccessible" ESI. When the California amendments were circulated for public comment last year, they included a presumption that all ESI was accessible. In sum, the proposed amendments required a responding party who deems ESI inaccessible (and is unable to resolve the issue during the meet and confer) to move for a protective order. In the version of the California rules that is currently awaiting enactment, responding parties may still move for a protective order; however, responding parties have the additional option of objecting to a request on the basis that the information is not accessible, at which point the requesting party may move to compel production. In essence, the previous version of California's e-discovery amendments appears to presume that all ESI is accessible by requiring the responding party to file a motion for a protective order. The current version of the amendments moves away from this slightly but still places the burden on the responding party to assert the inaccessibility of documents. Thus, the revision still implies an underlying notion that all ESI is accessible."

Resources for Better E-mail Management

Resources for Better E-mail Management

"ARMA International is pleased to announce a new portion of our web site, dedicated to presenting best practices and resources for managing e-mail and other electronically stored information: www.arma.org/email.

Traditionally, e-mail has been the kryptonite of organizations. How much should they keep? Where and how should it be stored? Can organizations find the relevant electronically stored information (ESI) when presented with a legal discovery request? With the launch of this new site, the answers are available to organizations everywhere.

Now is the time for information management, IT, and legal professionals, along with employees from all areas of an organization, to get on board and work collaboratively to manage ESI correctly. Failure to recognize the critical need to manage electronic data is no longer an option for organizations. Professionals are looking for the resources to lead them in the right direction."

Upcoming eDiscovery Conference April 27-29

For those interested, there's a 3-day eDiscovery Conference starting on April 27 in San Francisco.  Here are the details.

They're offering a special discount of $999 conference-only price for qualified in-house counsel.  If you're one of them, you should mention code: IUS_EDISCNAV_E7 to get the offer.

Litigant Access to Opponent ESI Challenged

Litigant Access to Opponent ESI Challenged

"Even if a judge's reasoning may give rise to criticism, an opinion can shed much light on how courts approach judgment calls over opening access to a litigation opponent's electronically stored information.

One such opinion was filed last month, in a case captioned Mintel International Group Ltd. v. Neergheen, No. 08-CV-3939 (N.D. Ill. Feb. 3, 2009). In that case, Magistrate Judge Maria Valdez rejected a plaintiff's efforts to secure a court order that would allow it to search the computers of a defendant's new employer.

Last summer, in a column discussing "departing employee" litigation, I wrote about an earlier opinion in Mintel International Group's litigation against Meesham Neergheen.

In Mintel International Group Ltd. v. Neergheen, No. 08-CV-3939 (N.D. Ill. July 11, 2008), or "Mintel I," Mintel International sought a temporary restraining order against its former employee, Neergheen, who left to work for a direct competitor."

Electronic Discovery Costs And Burdens Require New Rules

Electronic Discovery Costs And Burdens Require New Rules

"More than just gross volume and multiple, disparate locations, electronic information is infamous for its complexity. Finding it, moving it, and understanding it may require a number of different disciplines and a variety of components.

Court rules now frequently involve an extensive search through many separate computer systems. Electronic media has become the nearly exclusive manner of producing and storing information in the corporate world.

For many litigants, the electronic data that accumulates on a daily basis is vast and difficult to manage. Much of this data is stored in reasonably accessible sources, which people use in the ordinary course of business, but vast quantities of this data are also preserved in sources that are not reasonably accessible, such as back-up storage media used for disaster recovery. Furthermore, substantial amounts of information consist of files that have been purportedly "deleted," yet may still be recovered (albeit at significant burden and expense). Requiring a litigant to restore and retrieve data at its own expense from back-up tapes, "deleted" files, and other sources that are not readily accessible is having significant negative financial impact and resulting in substantial interference to the day-to-day business activities of many litigants.

When discovery processes were put in place, data of such magnitude and complexity were unfathomable."

Rulemaking In State Courts: A Rationale For Adopting ESI Provisions Of FRCP 26

Rulemaking In State Courts: A Rationale For Adopting ESI Provisions Of FRCP 26

"The Federal Rules of Civil Procedure were amended on December 1, 2006 to address discovery of electronically stored information (ESI). Among the amendments to the Federal Rules were significant changes to Rule 26 that provide additional protections to litigants who are dealing with a proliferation of computer usage, inexpensive data storage, and developments in communication technology that have changed discovery practice tremendously over the past several years. While several states have adopted (or are working on adopting) new rules, some of which are modeled after the Federal Rules, many states have either decided not to implement new rules or have adopted a "wait and see" approach to see how the Federal Rules work before adopting state rules. We have seen since its adoption in 2006, that three provisions in Fed. R. Civ. P. 26 greatly benefit litigants: the so-called "claw-back" provision; the two-tiered bifurcation of discovery based on active and "not reasonably accessible" information; and the inclusion of a discussion of ESI in early case planning conferences. Some states decided long ago not to compel litigants into early case management conferences and may not be likely to revisit that issue. Adopting the claw-back and two-tiered approach, however, would provide litigants with much needed protection and predictability in the discovery process."

Top Five Storage Investment Priorities for 2009

Top Five Storage Investment Priorities for 2009

"Although we’re facing a continued economic downturn in 2009, the growth rate of storage and storage requirements has not abated. IT professionals are facing tightened budgets with very little capital, making it difficult for them to acquire new technologies. Yet, whatever capital investments are made must be maximized to the fullest extent--which means they’ll choose the storage solution that will best meet their needs while looking for a quick return on investment and a return on assets, or ROA. In this economy, it will be important for IT professionals to stick to the fundamentals and focus on ROA and the ability to break even quickly."

Exchange archiving for storage optimization

Exchange archiving for storage optimization

"There are numerous benefits associated with archiving Microsoft Exchange e-mail data. For example, archiving facilitates litigation searches and e-discovery, allows for more complete journaling, and provides storage benefits for both mailboxes and the storage devices themselves.  In this article, I will focus on the latter -- how archiving can be used for storage optimization.

Reducing storage costs is the most common motivation for e-mail archiving. In fact, 90% of deployments I have been involved with were solely implemented for storage savings.  However, storage savings mean different things to different people.  For some, it means compressing e-mail to reduce licensing and storage hardware costs.  For others it’s creating a “bottomless mailbox” for end users.  For the purposes of this article, it will mean both."

Archival and eDiscovery Address Different Challenges

Archival and eDiscovery Address Different Challenges

"eDiscovery is an end-to-end process starting from the point of identifying all information across an enterprise to processing it for culling and legal hold, and analyzing and reviewing it for pertinence to case matters or litigations or investigations. The process of eDiscovery spans across enterprise data sources, datacenters, remote offices and across data types--in short, it’s a process that needs to work across boundaries for it to be transparent, accurate, complete, effective and exhaustive. eDiscovery is an enterprise wide problem and is required for both active and archive content sources. eDiscovery challenges and requirements are orthogonal to archiving challenges and requirements. Customers need a best of breed approach for solving both eDiscovery and archiving challenges.

Archival is the process of storing non-active or older data in repositories for longer-term online access. The primary goal of archival is to prune data from active content applications for the purposes of cost savings, capacity growth management, performance and efficiency.   In the past few years, email archiving has taken a much more dominating position among various archiving applications. Archival is typically done for email content, and to a far lesser extent, file and other content even though archival, in general, includes emails, files, and sometimes includes records management too.  In any environment today, archived data is likely only 10-20 percent of the total online data, at best."

Think you’re compliant? Corrupt metadata could land you in jail

Think you’re compliant? Corrupt metadata could land you in jail

"The amount of data that companies must store is growing at an enormous pace as regulations including Sarbanes-Oxley, HIPAA, SEC 17a-4, and the Federal Rules of Civil Procedure —to name just a few—place an increasing burden on enterprise storage, backup and recovery needs. Fail to protect information in a recoverable state, and company officers face fines, other penalties and even jail time.

Matters are made more complex when enterprise content management (ECM) systems are in use. The benefits of ECM - workflow, collaboration, and integrated management of information assets - bring an extra level of responsibility when it comes to protecting the content and metadata within them. That extra level of care required primarily relates to ECM metadata –audit trails, digital signatures, workflows, renditions and other “data about data,” which must be backed up with the content it supports in a synchronous manner to ensure full recoverability and compliance with regulatory mandates."