Electronic Discovery Navigator

E-Discovery Guru Not Yet Wed to XML

E-Discovery Guru Not Yet Wed to XML

"I want to love XML. I want to embrace it with the passion of my wiser colleagues, excited by its schemas, titillated by its well-formed code, flushed from its pull-parsing. I want to love XML as much as the cool kids do. So why does it leave me cold?

I want XML the dragon slayer: all the functionality of native electronic evidence coupled with the ease of identification, reliable redaction and intelligibility of paper documents. The promise is palpable; but for now, XML is just a clever replacement for load files, those clumsy Sancho Panzas that serve as squire to addled TIFF image productions. Maybe that's reason enough to love XML.

XML is eXtensible Markup Language, an unfamiliar name for a familiar technology. Markup languages are coded identifiers paired with text and other information. They can define the appearance of content, like the reveal-codes screen of Corel Inc.'s WordPerfect documents. They also serve to tag content to distinguish whether 09011957 is a birth date (09/01/1957), a phone number (0-901-1957) or a Bates number. Plus, markup languages allow machines to talk to each other in ways humans understand."

Ignore Sarbanes-Oxley at Your Peril

Here's an article from my good friend and mentor, Robert Brownstone of Fenwick & West, and two other attorneys from his firm.

Ignore Sarbanes-Oxley at Your Peril

"Years after passage of the Sarbanes-Oxley Act of 2002, many companies still believe the act applies uniquely to public companies. In fact, private companies that ignore the act's obstruction-of-justice provisions do so at their peril. Two increasingly important provisions of Sarbanes-Oxley were set forth in §§ 802 and 1102 and codified, respectively, at 18 U.S.C. 1519 and 18 U.S.C. 1512(c). These provisions impose substantial criminal penalties on any individual or entity -- public or private -- for destruction of evidence or obstruction of justice regarding any actual or "contemplated" federal investigation, matter or official proceeding. A company therefore potentially could violate the law before an actual official governmental interest arises.

Thus, it is critical for every entity to ensure that its records-retention policy includes appropriate triggers -- called "litigation holds" -- to suspend the routine deletion of information for situations contemplated by §§ 802 and 1102. There is, however, an elephant in the room -- a "compliance gap" challenge that is of particular concern not only to quasi-governmental organizations but also to companies in heavily regulated industries facing routine government scrutiny. Those companies could find that an overbroad policy theoretically encompasses nearly all of their day-to-day work. Accordingly, those companies, even more than most, must balance the need for a practical records-retention policy with the need to comply with Sarbanes-Oxley's mandates."

What to do Without Local E-Discovery Rules

What to do Without Local E-Discovery Rules

" How many e-mails do you send or receive a day? How many documents do you open on your desktop? How reliant are you on your BlackBerry or iPhone? Most of us take for granted being bombarded with e-mails and electronic correspondence.

The practice of law is changing as the paper trail gives way to the electronic trail.

The discovery provisions of the Federal Rules of Civil Procedure were amended Dec. 1, 2006, to provide for electronically stored information. The amendments mandate the preservation, discoverability, production, accessibility and costs associated with ESI including e-mail, word processing documents, spreadsheets, voicemail and databases.

It’s now imperative that a lawyer be able to find every document -- paper or electronic -- relevant to the litigation. "Discovery of electronically stored data is essential because litigants would not find much of this information through traditional paper discovery processes," New Orleans attorney Corinne L. Giacobbe wrote in the Washington and Lee University Law Review."

Understanding Legal Information and E-Discovery

Understanding Legal Information and E-Discovery

"December 2006 amendments to U.S. Federal Rules of Civil Procedure (FRCP) are the most recent in a series of compliance mandates that IT and business alike must observe. FRCP govern court procedures in civil lawsuits. What differentiates FRCP from earlier mandates such as 2002’s Sarbanes-Oxley Act is the huge volume of textual information involved. (Other nations have similar legal and financial control mandates.) The ingredients include lots of text, exacting procedures, tight time frames and significant cost pressures. The result is widespread legal-sector adoption of text technologies to facilitate litigation related processes: the collection, management, review and delivery of electronic stored information (ESI) that is or may be pertinent to lawsuits.

Information technology (IT) plays an important role in the legal sector just as in other industries. There are typical operational functions such as time accounting and billing, and also litigation-related case management. It’s in management of evidentiary materials for lawsuits and of legal information – searchable legal code, case law and directories – that text technologies can really shine."

Amended FRCP rocks the data center

Amended FRCP rocks the data center

"On December 1, 2006, the Federal Rules of Civil Procedure was amended to provide expanded definition and structure to the newest class of legally discoverable business data: electronically stored information (ESI). Data management will never be the same. In a nation where litigation is a continuing threat, companies cannot afford to ignore the new rules; although many are. Neglecting the rules will send litigation costs soaring in the form of ad-hoc electronic discovery procedures and meaningful court sanctions. A real business risk that must be addressed.

With this in mind, having a system in place is colossally important. The dangers of litigation in Federal and State courts are not confined to multi-million dollar corporations. The smallest company can face financial and market devastation from litigation, legal fees, court costs and settlements. It makes no sense to assume the risks of additional court sanctions dependent on rules violations."

Insurers Want Say in Policyholders' Document Retention Policies

I think we all knew this was coming, soon or later.  What took them so long?

With the rising costs of ediscovery, liability insurers are beginning to find new ways to recover and control those costs in their insurance products, either through training programs, price adjustments, policy exclusions, or even "electronic discovery insurance."

Here's the article.

E-Discovery Survival Guide for Corporate Counsel

Here's a good ediscovery survival guide for corporate counsel:

1.  Update and enforce your records management policies;

2.  Adopt litigation early warnings strategies;

3.  Implement detailed litigation hold;

4.  Review your computer use policies with ediscovery in mind;

5.   Educate your legal, administrative, and IT staff on the fundamentals of ediscovery;

6.   Adopt collection plans for electronically stored information ("ESI");

7.  Don't forget to consider all possible sources of ESI -- see here and here.

8.  Designate an ediscovery liaison;

9.  Monitor the ediscovery process;

10.  Stay up to date on ediscovery issues.

Note: I added numbers 7 and 9 to the list discussed in the article hyperlinked above.

(Source: Smith, Arthur L., "United States: E-Discovery Survival Guide For Corporate Counsel," (Feburary 19, 2007).)

E-Discovery Morphs Into Electronic Information Management

My good friend, Robert Brownstone, recently published an insightful article on eDiscovery.  Robert is the Law & Technology Director of Electronic Information Management at Fenwick & West.