Electronic Discovery Navigator

Different Forms of "Electronic Communication" & Their Impact on eDiscovery

Looking Beyond E-mail: Alternate Forms Of Communication And Their Impact On Electronic Discovery

By  Jerry F. Barbanel & Bruce W. Pixley, Aon Consulting

"When producing electronic discovery to turn over to the opposing party, it is imperative to be knowledgeable of the dangers of potentially missing relevant data during the standard forensic collection process. It is commonly believed that when a preservation order specifies "electronic communications," the order is referring to e-mail. However, there are a number of other forms of electronic communication that may exist on a custodian's computer that could possibly be overlooked."

Understanding the World of Email Can Help Decrease eDiscovery Costs

No doubt, the biggest expense for companies involved in large-scale litigation and governmental investigations is ediscovery.  And by far the largest contributor to ediscovey costs is the collection, processing, and reviewing of emails.  So, an understanding of the world of emails could help decrease ediscovery costs.

Here's a two-part article to help you get started:

1.  Understanding The World Of E-mail: How It Can Significantly Increase Or Decrease The Costs Of Electronic Discovery - Part I

2.  Understanding The World Of E-mail: How It Can Significantly Increase Or Decrease The Costs Of Electronic Discovery - Part II

"So How Many Pages Are in a Gigabyte of Data?"

Expert Explodes Page Equivalency Myth

When parties to a big lawsuit couldn't agree on a vendor to host an electronic document repository, the court appointed me to help. Poring over multimillion dollar bids, I saw the vendors were told to assume that a gigabyte of data equals 22,500 pages. If the dozens of entities involved produced their documents in a mix of TIF images and native formats -- spreadsheets, word-processed documents, e-mail, compressed archives, maps, photos, engineering drawings -- how sensible was it to assume 22,500 pages per gigabyte?

(Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1186477613170.)

Using Storage Deduplication to Manage Unstructured Data

To manage unstructured electronically stored information ("ESI"), data deduplication is a good strategy to try, as this article suggests.

What is data deduplication?

Basically, it is a method to eliminate redundant data.  Here's a full discussion on data deduplication.

From the perspective of eDiscovery, data deduplication reduces the amount of ESI to review for relevance, which in turn reduces cost.

The Verdict's In on ABA Techshow

For those who missed the ABA Techshow 2007 last week, here's a summary from www.law.com by Brett Burney.  Not surprisingly, eDiscovery took the spotlight, with Judge Shira Scheindlin (author of the landmark Zubulake decisions) delivering the keynote address.

Judge Scheindlin addressed the importance of preparing for the Rule 26(f) "meet and confer" by learning where and how your client stores electronic records and information. Bringing this knowledge to your initial meetings with opposing counsel, and actually sharing that information with them, indicates a change in law practice that does not sit comfortably with many attorneys. Judge Scheindlin recognized the struggles attorneys and judges will face in the near future as they legally define terms like "inaccessible data," "reasonably usable format," and "routine operation of an electronic system."  (Emphases added.)

(Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1174912594541.)

Survey Shows Businesses Still Not Fully Prepared for FRCP

According to this report, a recent survey by Fortiva showed that "94 per cent of those people responsible for email policy do not feel their organization is fully prepared to meet FRCP requirements."

The survey, which was conducted during the last week of February, found that almost half of the respondents (45.9 per cent) have no retention policy for email, an important step in meeting FRCP rules. In addition, only 8.4 per cent of respondents have met one of the most critical requirements outlined by the FRCP amendments: putting a litigation-hold procedure in place. While 10 per cent of respondents have made changes to the policy to meet FRCP, over 20 per cent are still in the planning stage and 36 per cent were not sure if changes were planned.

Additional findings from the survey include:

• 56.7 percent of respondents that are responsible for email policy are in IT, while 6.8 per cent are in the legal department;
• 25.4 percent of respondents said their organization has responded to an e-discovery request at least once in the past three years, while 24 percent didn't know/weren't sure;
• 45.6 percent of respondents said their organization does not have an official email retention policy; users keep their email as long as they like;
• Only 25.5 percent of respondents said that legal counsel directives influenced their retention policy.

(Source: http://www.dmreview.com/article_sub.cfm?articleId=1079164.)

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.)

13 Tools for eDiscovery

The recent amendments to the Federal Rules of Civil Procedure not only imposed new requirements for dealing with electronically stored information ("ESI") but also changed the technology used to handle that information.

So, what are the current technological tools available to help comply with these new rules?  Here are 13 of them.

1.  EMC Centera CAS -- customizable storage of ESI in non-deletable, non-alterable form.

2.  CA Message Manager -- provides email management, archiving, retrieval, and search.

3.  Kazeon Information Server IS 1200-ECS -- automates eDiscovery by indexing and identifying relevant documents and emails.

4.  CommVault QiNetix Unified Data Management -- collects and indexes ESI for litigation holds.

5.  Hitachi Data Systems HCAP -- stores and archives ESI.

Daylight Saving Time Springs Forward Three Weeks Early: Avoid Potential Technology Pitfalls

In case this is news to some, this Sunday (March 11, 2007), the United States and Canada are setting their clocks one hour ahead for Daylight Saving Time.  This "spring forward" adjustment comes three weeks earlier this year because of an amendment to the Uniform Time Act of 1966 buried in the 551-page Energy Policy Act of 2005.  (If you're curious, the amendment is on page 23.)

To ensure that your Records Management Systems (e.g., automatic deletion program) kick in at the correct time, ISACA (Information Systems Audit and Control Association), a global IT governance association, recommends the following to prepare computers and other electronic devices for the early time change:

• Enable automatic update options so software patches for the Daylight Saving Time adjustment can be automatically downloaded and installed.
• Schedule a reminder for 11 March on electronic calendars to verify that dates and times reflect the early Daylight Saving Time.
• Check the time stamp of incoming e-mail messages against the device’s clock to ensure that they match. If they do not, notify senders that their devices may not have adjusted for the time change.
• Back up programs and data before 11 March.

Click here for Microsoft's time change information for its products.