Electronic Discovery Navigator

Media Companies Need to Address New Document Retention-Confidentiality Dilemma

Media Companies Need to Address New Document Retention-Confidentiality Dilemma

"'Media companies that have not updated their document retention policies to reflect today’s technologies may find it difficult to successfully defend themselves against a defamation or invasion-of-privacy lawsuit or to protect confidential sources" said Ken Goldstein, assistant vice president, Chubb & Son, and worldwide media liability manager for Chubb Specialty Insurance.

New e-discovery amendments to the Federal Rules of Civil Procedure acknowledge that information stored on email, voice mail, flash drives, MP3 players, editorial document management systems, system backup tapes and other devices is discoverable. Without the proper protocols in place, media companies can face a variety of dilemmas when responding to subpoenas for electronically-stored information, including retrieving it and exposing confidential reporter sources and other private information."

Privacy Networks Offers Free Customized Retention Policy Starter Kit

Privacy Networks Offers Free Customized Retention Policy Starter Kit 

"Privacy Networks, the digital asset archive company, today announced they have made a fast path to retention policy creation and implementation available to companies and organizations that are looking to maintain compliance. Defining a solid retention policy is the first step on the road to an effective and sound email and electronic communications compliance strategy. It is imperative that retention policies reflect the needs of multiple entities in the organization and that those retention policies be easily implemented in the archive and retrieval system. Privacy Networks' solutions are now able to set customized retention policies based on the company, groups of users, or an individual. By adding this granularity of control, organizations can easily articulate their retention policies for compliance and best practices in the Privacy Networks solution."

Destructive Email Retention Policies Dangerous for Today's Businesses

Destructive Email Retention Policies Dangerous for Today's Businesses

"Given the role and popularity of email in business today, companies are faced with a significant dilemma of how to balance email security with storage. According to a new white paper from ArcMail Technology, entitled “Email Archiving vs. Destructive Retention Policies,” the dilemma is forcing companies to question if and when is it more appropriate to archive email versus implement a destructive retention policy that deletes email after a specified length of time. While there are several arguments for destructive retention policies, ultimately, the threat of litigation, industry and government compliance regulations and the challenge of maintaining employee productivity are driving more organizations to adopt email archiving policies."

CIO Strategies for Retention and Deletion of Email and Electronic Information

CIO Strategies for Retention and Deletion of Email and Electronic Information

"Over the past two years, major changes to the Federal Rules of Civil Procedure and the increase in state and federal compliance regulations have created new challenges for companies as they struggle to manage email retention and deletion policies.

To successfully maintain compliance and protect business in the event of litigation, companies must understand these changes. Implementing new strategies for email will enable organizations to effectively set and manage email retention and deletion policies, as well as provide robust search and e-discovery capabilities to respond rapidly to litigation."

10 guidelines for setting retention policies

10 guidelines for setting retention policies

"As if you aren’t busy enough, you now play the role of protector of electronically stored information.

With new regulations and the recent changes to the Federal Rules of Civil Procedure, legal departments are turning to IT leadership to manage the retention, deletion, search and recovery of electronic information. For IT management in large companies, this means tracking billions of e-mail messages, database records and desktop files as they move across tens of thousands of servers and desktop computers."

FRCP Rule 37(f): The "Harbor" Is Not as "Safe" as You Think

What Protection Does Rule 37(f) Provide?

Rule 37(f) is a new rule added by the amendments to the Federal Rules of Civil Procedure that became effective Dec. 1, 2006. It's been described by commentators in many different ways, including "safe harbor," "lighthouse" and "minefield." One of the judges who sat on the rules committee that proposed Rule 37(f), said that it's meant to be more like a "bubble bath" than a "safe harbor" -- something to make companies feel good about handling electronically stored information in litigation.

(Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1186089401546.)

Predictability and Consistency in eDiscovery

Here's a strategy for managing electronically stored information ("ESI") and eDiscovery that Chris Paskach suggests would lower the costs in responding to requests for ESI and provide greater predictability and reduced risks.

1. Prepare : Preparation is proactive and needs to be undertaken before an e-Discovery event occurs. It involves understanding all of a company's ESI and assessing the processes and risks related to creating, retaining and retrieving ESI in the normal course of business and in response to regulatory and litigation events.

2. Plan : Planning is also proactive and refers to having plans in place to identify, preserve and review ESI in response to the typical requests a company is likely to receive. In addition, event-specific planning is reactive and requires understanding and addressing a specific request for ESI when it occurs.

3. Preserve : Preserving ESI in response to a specific e-Discovery event is reactive and involves the issuance and implementation of litigation holds and performance of forensic data preservation processes.

4. Pare : Paring down the high volumes of potentially responsive ESI is also reactive and involves applying the most effective filtering techniques to focus high-cost resources on the documents that relate to the matter at hand, while minimizing the effort expended on unrelated and irrelevant documents.

5. Process : Processing the ESI related to a specific event is also reactive. The review tools and processes should be focused on achieving the highest efficiency and reliability in the review process.

6. Produce : Producing the responsive, non-privileged documents in a matter is reactive and should support the efficient production in the agreed formats, combined with reliable tracking of all documents that have been produced.

(Source: http://www.metrocorpcounsel.com/pdf/2007/March/35.pdf.)

Growing Pressure for Data Classification

Here's an interesting article about strategies for organizing data.  As to eDiscovery issues, the author recommends classifying data in a few simple categories (e.g., "Regulated record," "Historical business record," and "Temporary nonrecord") to help with data retention, since "enterprisewide records retention are often stymied by their employees’ inability to understand all of the different categories and retention periods their records may be subject to."

(Source: http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9014071.)

Five Things I Learned from My CIO

The recent amendments to the Federal Rules of Civil Procedure mandate accountability for electronically stored information ("ESI").  So, here are five things counsel can learn by talking to the CIO and doing so early.

1.  Where's the ESI? --  CIO knows where ESI is kept, from the typical hard drive to less obvious repositories like USB Flash Drives (as discussed in my earlier post), which have been the subject of recent litigation (as discussed here).

2.  Access to ESI -- CIO also knows who has access to the ESI in question.  Counsel would need this information to draft a litigation hold that includes all relevant persons.

3.  Stop in the name of litigation -- CIO can stop automatic deletion programs so that relevant ESI is not accidentally destroyed.

4.  Is relevant ESI reasonably accessible? -- CIO would know whether the technology exists  to reproduce ESI that has been kept in back-up tapes and the cost of retrieving that ESI.  If the relevant ESI is not reasonably accessible, the burden falls on the requesting party to justify their need for it.

5.  Your witness, Counselor -- A well informed CIO could bolster your claim that relevant ESI is not reasonably accessible.

(Source: http://www.computerweekly.com/Articles/2007/03/14/222391/cios-talk-to-your-companys-lawyer.htm.)