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EDRM

A Marriage Made for eDiscovery: EDRM and ARMA
 

EDRM has been busy lately, with a new Model Code of Conduct drafted recently and now this announcement.

As discussed in our recent two–part series on eDiscovery standards, there is a growing movement to develop industry standards, frameworks, or reference models to help manage eDiscovery. This week, there was perhaps a major move in that direction as the Electronic Discovery Reference Model (EDRM) and ARMA International announced that they would be collaborating on information governance guidelines for eDiscovery.  

According to EDRM, the partnership began at LegalTech in New York back in February when ARMA reached out to suggest working together. The plan is still vague, but together these two groups hope to provide a framework for records management in the eDiscovery context. “I don’t know where this partnership will take us, but it’s just silly that two groups with similar goals and ideals would work in isolation,” says George Socha, an eDiscovery consultant and one of the co-founders and co-managers of EDRM.

Two years ago, EDRM started its Information Governance Reference Model, providing a conceptual framework for information governance. Today, the Information Governance Reference Model is primarily a rough guide for developing information management programs. But EDRM, which is a relatively small volunteer effort, hopes that the weight of ARMA, which boasts 11,000 members, will help flesh out the framework.

By contrast, the Association for Information Management Professionals (ARMA) International is an established and relatively large and influential group claiming 11,000 members in 30 countries. ARMA international has developed its Generally Accepted Record-keeping Principles, or GARP, framework to provide best practices for information management. The framework is designed generally for records-keeping management, but has been designed to account for the demands of eDiscovery. Though ARMA’s core constituency is records managers, the demands of litigation have been driving many of the group’s recent initiatives. 

Interestingly, as we’ve noted previously, ARMA has previously described the EDRM effort as falling “short of describing standards or best practices that can be applied to the complex issues surrounding the creation, management, and governance of electronic information.” However, the organization clearly believes EDRM’s network of experienced litigators and IT professionals will help it address the demands of eDiscovery.

If broad industry standards efforts are going to be developed, it will take more such efforts like this that cut across industries and bring expertise from different areas into alignment. Socha believes that though the EDRM and ARMA have traditionally served different groups, they have both realized that they are concerned with many of the same problems.  “A lot of the root causes of eDiscovery issues come from a failure to have your electronic house in order,” says Socha. “What the Information Governance Reference Model and GARP are about is addressing that issue.”

So, what do you think? Does the EDRM need ARMA? Or vice versa? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: Your Chance to Comment on Code of Conduct for eDiscovery
 

The Electronic Discovery Reference Model (EDRM) has made numerous contributions to the eDiscovery industry since it was founded in 2005, with the EDRM diagram (above) having become a universally accepted standard to reflect the eDiscovery life cycle.

The latest contribution is a first draft of the EDRM Model Code of Conduct (MCoC), which focuses on the ethical duties of service providers associated with these five key principles and also provides a corollary for each principle to illustrate ethical duties of their clients:

  • Professionalism: Service Providers should perform their work in a competent, accurate, timely and cost-effective manner, adhering to the highest standards of professionalism and ethical conduct. Clients should be forthright, accurate and timely in their dealings with Service Providers and act at all times in accordance with the highest professional standards of ethical conduct.
  • Engagement: Service Providers should collaborate with Clients to establish and memorialize the terms of their relationship including any reasonably foreseeable parameters as early as possible upon the initiation of any new engagement. Clients should provide sufficiently detailed information about the subject matter, the parties involved in the litigation and any material issues or variables that would assist the Service Provider in accurately defining the engagement.
  • Conflicts of Interest: Service Providers should employ reasonable proactive measures to identify potential conflicts of interest, as defined and discussed below. In the event that an actual or potential conflict of interest is identified, Service Providers should disclose any such conflict and take immediate steps to resolve it in accordance with the Guidelines set forth below.  Clients should furnish Service Providers with sufficient information at the commencement of each engagement to enable each Service Provider to identify potential conflicts of interest. If an actual or potential conflict of interest is identified and disclosed and the Client elects to proceed with the engagement, the Client should work in good faith with the Service Provider and other parties to facilitate a resolution to any such conflict in accordance with the Guidelines set forth below.
  • Sound Process: Service Providers should define, implement and audit documented sound processes that are designed to preserve legal defensibility. Clients should cooperate with Service Providers to ensure that auditable, documented sound processes, appropriate for each engagement, are defined and implemented by all concerned parties to preserve legal defensibility.
  • Security and Confidentiality: Service Providers should establish and implement procedures to secure and maintain confidentiality of all Client ESI, communications and other information. Clients should work with Service Providers to ensure that reasonable measures, appropriate for each engagement, are established and implemented by all concerned parties to secure and maintain confidentiality of all ESI, communications and other information.

Each section then provides detailed guidelines and a discussion section to provide more detailed guidance and recommendations.  The MCoC also provides a detailed introduction to illustrate the need for guidance in ethical decision making, as well as the scope of the guidelines.

Now is your chance to provide feedback!  This initial draft of the MCoC is open to all for public comment through September 30, 2011.  You may post comments at http://www.edrm.net/004 or email comments to mail@edrm.net to provide feedback to the team.

The EDRM MCoC team will review all feedback at the EDRM Mid-Year meeting, in October and will publish the first version of the MCoC will be published in January 2012, prior to the LegalTech NY conference.  These guidelines are a much needed statement on the ethical duties of participants in eDiscovery activities and the efforts of the MCoC team are truly commendable!

So, what do you think? Do you believe that these guidelines are a major step in the right direction?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: NY Times Says US Government Has Its Head in the Clouds
 

No, this isn’t a post bashing our government – you can find plenty of articles on the web for that!  😉

As noted a few months ago, Forrester and Gartner have predicted big growth for the cloud computing industry, with Forrester predicting nearly a six-fold growth in nine years.  Many organizations are finding that cloud computing solutions, including Software-as-a-Service (SaaS) solutions for using applications over the web, are saving those organizations significant costs over the costs of having to provide their own software, hardware and infrastructure.  In eDiscovery, these SaaS solutions support every phase of the EDRM life cycle, from Identification to Presentation.

Earlier this week, the New York Times published an article entitled Tight Budget? Look to the ‘Cloud’, written by Vivek Kundra, the Obama administration’s chief information officer from 2009 until earlier this month.  Mr. Kundra noted that there were “vast inefficiencies” in the $80 billion federal IT budget when he took office, and that the Defense Department spent $850 million over ten years on one personnel system alone.

In response, Kundra and his staff instituted a “Cloud First” policy, which advocates the adoption of cloud computing solutions by government agencies.  It even went as far as to mandate the transition of at least three projects for every agency to the cloud by next summer.  As a result, some agencies, such as the General Services Administration, have embraced cloud computing and cut IT costs on some systems by over 50 percent.

Some agencies, like the State Department, have balked at the transition to the cloud, citing security concerns.  However, Kundra notes that “cloud computing is often far more secure than traditional computing, because companies…can attract and retain cyber-security personnel of a higher quality than many governmental agencies”.  Here is an example of the security associated with cloud based solutions, using the facility used by CloudNineDiscovery (formerly Trial Solutions).  As you will see, there are numerous mechanisms to secure sensitive client data.

Kundra notes that a shift to cloud-based services in health care alone to achieve a 1 percent productivity increase over ten years would result in a $300 billion savings.  Noting significant growth in cloud computing in Japan and India, he advocates the creation of a global Cloud First policy to enable nations to determine how the flow of information internationally should be handled, leading to global efficiencies.

So, what do you think? Do you use any cloud based solutions in managing your discovery needs?  Please share any comments you might have or if you'd like to know more about a particular topic.

Full disclosure: I work for CloudNine Discovery (formerly Trial Solutions), which provides SaaS-based eDiscovery review applications FirstPass® (for first pass review) and OnDemand® (for linear review and production).  Our clients’ data is hosted in a secured Tier 4 Data Center in Houston, Texas.

Have a Happy Labor Day!

eDiscovery Trends: Same Old Story, Lawyers Struggling to “Get” eDiscovery
 

A couple of days ago, Law Technology News (LTN) published an article entitled Lawyers Struggle to Get a Grasp on E-Discovery, by Gina Passarella, via The Legal Intelligencer.  Noting that “[a]ttorneys have said e-discovery can eat up between 50 to 80 percent of a litigation budget”, the article had several good observations and quotes from various eDiscovery thought leaders, including:

  • Cozen O'Connor member David J. Walton, co-chairman of the firm's eDiscovery task force, who observed that “I'm afraid not to know [eDiscovery] because it dominates every part of a case”;
  • LDiscovery General Counsel Leonard Deutchman, who noted that the younger generation comfortable with the technology will soon be the judges and attorneys handling these matters, asked the question “what happens to those people that never change?”.  His answer: “They die.”
  • K&L Gates eDiscovery analysis and technology group Co-Chairman Thomas J. Smith noted that “A lot of the costs in e-discovery are driven by paranoia because counsel or the party themselves don't really know the rules and don't know what the case law says”.
  • Morgan Lewis & Bockius partner Stephanie A. "Tess" Blair heads up the firm's e-data practice and hopes that in five years eDiscovery will become more routine, noting “I think we're at the end of the beginning”.
  • Dechert's e-discovery practice guru Ben Barnett said, “Technology created the problem, so technology needs to solve it.”  But, David Cohen, the head of Reed Smith's eDiscovery practice, said that the increasing amount of data sources are keeping ahead of that process, saying “You have to make improvements in how you handle it just to tread water in terms of cost”.

There are several other good quotes and observations in the article, linked above.

On the heels of Jason Krause’s two part series on this blog regarding the various eDiscovery standards organizations, and the controversy regarding eDiscovery certification programs (referenced by this post regarding the certification program at The Organization of Legal Professionals), where do attorneys turn for information?  How do attorneys meet the competency requirements that the American Bar Association (ABA) Model Rules set forth, when an understanding of eDiscovery has become an increasing part of those requirements?

One common denominator of the firms quoted above is that they all have one or more individuals focused on managing the eDiscovery aspect of the cases in which they’re involved.  Having an eDiscovery specialist (or a team) can be a key component of effectively managing the discovery process.  If you’re a smaller firm and cannot devote a resource to managing eDiscovery, then find a competent provider that can assist when needed.

In addition to identifying an “expert” within or outside the firm, there are so many resources available for self-education that any attorney can investigate to boost their own eDiscovery “savvy”.  Join one of the standards organizations referenced in the two part series above.  Or, participate in a certification program.

One method for self-education that attorneys already know is case law research – while there is always variety in how some of the issues are handled by different courts, case decisions related to eDiscovery can certainly identify risks and issues that may need to be addressed or mitigated.  Subscribing to one or more resources that publish eDiscovery case law is a great way to keep abreast of developments.  And, I would be remiss if I didn’t note that eDiscovery Daily is one of those resources – in the nearly 11 month history of this blog, we have published 43 case law posts to date.  More to come, I’m sure… 😉

So, what do you think? Do you have a game plan for “getting” eDiscovery?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Standards: How Does an Industry Get Them?
 

As discussed yesterday, there is a nascent, but growing, movement pushing for industry standards in eDiscovery. That’s something many litigators may chafe at, thinking that standards and industry benchmarks impose checklists or management processes that tell them how to do their job. But industry standards, when implemented well, provide not only a common standard of care, but can help provide a point of comparison to help drive buying decisions.

It’s probably understandable that many of the calls for standards today focus on the search process. Judge Shira Scheindlin wrote in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC that a party’s “failure to assess the accuracy and validity of selected search terms” was tantamount to negligence.  As mentioned yesterday, the Text Retrieval Conference TREC Legal Track has been benchmarking different search strategies, even finding ways to optimize the search process. The ultimate goal is to provide baseline standards and guidelines to allow parties to determine if they are being successful in searching electronically stored information in litigation.

Within these technical discussions a new emerging thread is a call for ethical standards and codes of conduct. Jason Baron, National Archives' Director of Litigation and one of the coordinators of the TREC Legal Track, organized the SIRE workshop that concluded last week, focused on information retrieval issues in large data sets. However, even he, who has been working on optimizing search technology, recognizes the need for standards of care and ethics in eDiscovery to manage the human element. In a paper released earlier this year, he noted, “While there are no reported cases discussing the matter of ‘keyword search ethics,’ it is only a matter of time before courts are faced with deciding difficult issues regarding the duty of responding parties and their counsel to make adequate disclosures.”

The leading provider of industry standards is the Electronic Discovery Resource Model (EDRM), which has a number of projects and efforts underway to create common frameworks and standards for managing eDiscovery. Many of the EDRM’s ongoing projects are aimed at creating a framework, and not standards. In addition to the EDRM Framework familiar to many eDiscovery professionals, the group has produced an EDRM Model Code of Conduct Project to issue aspiring eDiscovery ethics guidelines and is working on a model Search Project.

But biggest piece of the discussion is how to create benchmarks and standards for repeatable, defensible, and consistent business processes through the entire eDiscovery process. There are no current quality standards for eDiscovery, but there are several models that could be adopted. For example, the ISO 9000 quality management system defines industry-specific quality standards and could be tailored to eDiscovery. The Capability Maturity Model Integration (CMMI) in software engineering follows a similar model, but unlike ISO, does not require annual updates for certification.

This is still a nascent movement, characterized more by workshops and panel discussions than by actual standards efforts. Recent events include EDRM 2011-2012 Kickoff Meeting, St Paul, MN, May 11-12, ICAIL 2011 DESI IV Workshop, Pittsburgh, PA, June 6, TREC Legal Track, Gaithersburg, MD, November, and the SIRE workshop at the Special Interest Group on Information Retrieval (SIGIR) SIGIR 2011 on July 28.

There seems to be a growing consensus that industry standards are not just useful, but likely necessary in eDiscovery. The Sedona Commentary on Achieving Quality in eDiscovery Principle 3 says, “Implementing a well thought out e-discovery process should seek to enhance the overall quality of the production in the form of: (a) reducing the time from request to response; (b) reducing cost; and (c) improving the accuracy and completeness of responses to requests.”

The question now seems to be, what type of standards need to be in place and who is going to craft them. So, what do you think?  Please share any comments you might have or if you'd like to know more about a particular topic.

Editor's Note: Welcome Jason Krause as a guest author to eDiscovery Daily blog!  Jason is a freelance writer in Madison, Wisconsin. He has written about technology and the law for more than a dozen years, and has been writing about EDD issues since the first Zubulake decisions. Jason began his career in Silicon Valley, writing about technology for The Industry Standard, and later served as the technology reporter for the ABA Journal. He can be reached at jasonkrause@hotmail.com.

eDiscovery Standards: Does the Industry Need Them?
 

eDiscovery Daily recently ran a three part series analyzing eDiscovery cost budgeting. Cost has long been a driving force in eDiscovery decision-making, but it is just one dimension in choosing EDD services. Other industries have well-established standards for quality – think of the automotive or software industries, which have standard measures for defects or bugs. This year there has been a rising call for developing industry standards in eDiscovery to provide quality measures.

There is a belief that eDiscovery is becoming more routine and predictable, which means standards of service can be established. But is eDiscovery really like manufacturing? Can you assess the level of service in EDD in terms of number of defects? Quality is certainly a worthy aim – government agencies have shifted away from cost being the single biggest justification for contract award, more heavily weighting quality of service in such decisions.  The question is how to measure quality in EDD.

Quality standards that offer some type of objective measures could theoretically provide another basis for decision-making in addition to cost. Various attempts have been made at creating industry standards over the years, very little has yet been standardized. The recent DESI (Discovery of Electronically Stored Information) IV workshop at the International Conference on Artificial Intelligence and Law in June investigated possible standards. In the background to the conference, organizers bemoaned that “there is no widely agreed-upon set of standards or best practices for how to conduct a reasonable eDiscovery search for relevant evidence.” 

Detractors say standards are just hoops for vendors to jump through or a checkbox to check that don’t do much to differentiate one company from another. However, proponents believe industry standards could define issues like document defensibility, defining output, or how to go about finding responsive documents in a reasonable way, issues that can explode if not managed properly.

The Sedona Conference, Electronic Discovery Reference Model (EDRM), and Text Retrieval Conference (TREC) Legal Track all have efforts of one kind or another to establish standards for eDiscovery. EDRM provides a model for eDiscovery and standards of production. It has also led an effort to create a standard, generally accepted XML model to allow vendors and systems to more easily share electronically stored information (ESI). However, that applies to software vendors, and really doesn’t help the actual work of eDiscovery.

The Sedona Commentary on Achieving Quality in eDiscovery calls for development of standards and best practices in processing electronic evidence. Some of the standards being considered for broad industry standards are the ISO 9000 standard, which provides industry-specific frameworks for certifying organizations or the Capability Maturity Model Integration (CMMI), centered around improving processes.

The Association for Information Management Professionals (ARMA) is pushing its Generally Accepted Record-keeping Principles (GARP) framework to provide best practices for information management in the eDiscovery context. This article from ARMA is dismissive of information governance efforts such as the EDRM, which it says provides a framework for eDiscovery projects, but “falls short of describing standards or best practices that can be applied to the complex issues surrounding the creation, management, and governance of electronic information.”

Meanwhile, there are efforts underway to standardize pieces of the eDiscovery process. Law.com says that billing code standards are in the works to help clients understand what they are buying when they sign a contract for eDiscovery services.

Perhaps the most interesting and important effort is the TREC Legal Track, which began as government research project into improving search results. The project garnered a fair amount of attention when it discovered that keyword searching was as effective as or better than many advanced concept searches and other technology that was becoming popular in the industry. Since that time, researchers have been trying to develop objective criteria for comparing methods for searching large collections of documents in civil litigation.

As of today, these efforts are largely unrelated, disjointed, or even dismissive of competing efforts. In my next post, I’ll dig into specific efforts to see if any make sense for the industry. So, what do you think? Are standards needed, or is it just a lot of wheel spinning? Please share any comments you might have or if you'd like to know more about a particular topic.

Editor's Note: Welcome Jason Krause as a guest author to eDiscovery Daily blog!  Jason is a freelance writer in Madison, Wisconsin. He has written about technology and the law for more than a dozen years, and has been writing about EDD issues since the first Zubulake decisions. Jason began his career in Silicon Valley, writing about technology for The Industry Standard, and later served as the technology reporter for the ABA Journal. He can be reached at jasonkrause@hotmail.com.

eDiscovery Case Law: District Court Judge Affirms $1 Million Sanction to Pappas in Victor Stanley
 

One of the first posts ever published in eDiscovery Daily was this one, where defendant Mark Pappas, President of Creative Pipe, Inc., was ordered by Magistrate Judge Paul W. Grimm to  “be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney's fees and costs that will be awarded to Plaintiff as the prevailing party pursuant to Fed. R. Civ. P. 37(b)(2)(C).”.  Judge Grimm found that “Defendants…deleted, destroyed, and otherwise failed to preserve evidence; and repeatedly misrepresented the completeness of their discovery production to opposing counsel and the Court.”

Upon appeal, District Court Judge Marvin J. Garbis declined to adopt the order regarding incarceration, stating: “[T]he court does not find it appropriate to Order Defendant Pappas incarcerated for future possible failure to comply with his obligation to make payment of an amount to be determined in the course of further proceedings.”

Then, in January of this year, Judge Grimm entered an order awarding a total of $1,049,850.04 in “attorney’s fees and costs associated with all discovery that would not have been un[der]taken but for Defendants' spoliation, as well as the briefings and hearings regarding Plaintiff’s Motion for Sanctions.”  As a result, the court awarded $901,553.00 in attorney’s fees and $148,297.04 in costs, including the costs for the Plaintiff’s computer forensic consultant, finding that “Defendants’ first spoliation efforts corresponded with the beginning of litigation” and that “Defendants’ misconduct affected the entire discovery process since the commencement of this case.”

Naturally, the award was appealed.

On Tuesday, June 14, Judge Garbis affirmed Judge Grimm’s prior Report and Recommendation ordering the award.  Judge Garbis noted that “The Court’s stated standard for includible fees and costs is consistent with the purpose of designing a sanction that will ‘restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.’  Judge Garbis discussed and rejected all of Creative Pipe’s objections as to the amount of the award, adopting Judge Grimm’s findings that all of these fees were in fact related to the discovery malfeasance.

With Creative Pipe having already paid a total of $478,409.92, a balance remains under the order of $571,440.12, which concluded with Judge Garbis stating that “Defendants shall, by July 15, 2011, pay Plaintiff…the balance due”.  No mention of Judge Grimm’s original automatic jail sanction for non-payment of the fees, though, Judge Garbis originally said he might impose jail sanctions for non-payment.

So, what do you think?  Will the defendant pay the rest?  Appeal to the Circuit Court?  Could he still go to jail?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Downloading Confidential Information Leads to Motion to Compel Production

The North Dakota District Court has recently decided in favor of a motion to compel production of electronic evidence, requiring imaging of computer hard drives, in a case involving the possible electronic theft of trade secrets.

In Weatherford U.S., L.P. v. Chase Innis and Noble Casings Inc., No. 4:09-cv-061, 2011 WL 2174045 (D.N.D. June 2, 2011), the court ruled to allow the plaintiff to select and hire a forensic expert at its own expense to conduct imaging of the defendants’ hard drives. The purpose of this investigation was to discern whether or not confidential data that was downloaded from the plaintiff’s computers was, in fact, used in the building of the defendants’ own oil services firm.

Although the judge noted that courts are generally “cautious” in authorizing such hard drive imaging, this motion was substantiated by the defendant, Innis’s, “acknowledgment that he downloaded [plaintiff’s] files to a thumb drive without permission.” The court believed that circumstances of the case warranted further investigation into the defendant’s computer history:

  • The plaintiff, Weatherford US LP, had previously alleged that Chance Innis, a former employee, had downloaded confidential and proprietary information and used it to his advantage in starting his own competing company, Noble Casing Inc.
  • Innis had admitted to returning to Weatherford US offices late in the evening of the day he was terminated and downloading files onto a thumb drive without permission. Two weeks later, he launched his own competing oil services company, the co-defendant in this case, Noble Casing Inc. However, Innis maintains that he did not later access the files stored on his thumb drive and never used them in the process of starting his own company.
  • Contrary to these assertions, forensic examination of the thumb drive showed that the files were later accessed; whether or not they were instrumental in the startup of Noble Casing Inc. remains in question.
  • The plaintiff requested access to the defendant’s computers in the pursuit of previously subpoenaed documents, proposing that they select, hire, and pay for the services of a forensic investigator to image the defendants’ hard drives.
  • The defendants objected, proposing instead that an expert be chosen in agreement by all parties.
  • The court ruled in favor of the plaintiff’s motion in this instance, agreeing that all materials imaged will be shown to the defendant to screen for privilege before being shared with the plaintiff.
  • The court maintained that it is not unusual for imaging of hard drives to be allowed by the court in cases such as this, “particularly in cases where trade secrets and electronic evidence are both involved.”

So, what do you think?  Do you agree that Weatherford should have been allowed to examine images of the defendants’ hard drives, or should Innis’ privacy and that of his company have been protected?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Avoiding eDiscovery Nightmares: 10 Ways CEOs Can Sleep Easier
 

I found this article in the CIO Central blog on Forbes.com from Robert D. Brownstone – it’s a good summary of issues for organizations to consider so that they can avoid major eDiscovery nightmares.  The author counts down his top ten list David Letterman style (clever!) to provide a nice easy to follow summary of the issues.  Here’s a summary recap, with my ‘two cents’ on each item:

10. Less is more: The U.S. Supreme Court ruled unanimously in 2005 in the Arthur Andersen case that a “retention” policy is actually a destruction policy.  It’s important to routinely dispose of old data that is no longer needed to have less data subject to discovery and just as important to know where that data resides.  My two cents: A data map is a great way to keep track of where the data resides.

9. Sing Kumbaya: They may speak different languages, but you need to find a way to bridge the communication gap between Legal and IT to develop an effective litigation-preparedness program.  My two cents: Require cross-training so that each department can understand the terms and concepts important to the other.  And, don’t forget the records management folks!

8. Preserve or Perish: Assign the litigation hold protocol to one key person, either a lawyer or a C-level executive to decide when a litigation hold must be issued.  Ensure an adequate process and memorialize steps taken – and not taken.  My two cents: Memorialize is underlined because an organization that has a defined process and the documentation to back it up is much more likely to be given leeway in the courts than a company that doesn’t document its decisions.

7. Build the Three-Legged Stool: A successful eDiscovery approach involves knowledgeable people, great technology, and up-to-date written protocols.  My two cents: Up-to-date written protocols are the first thing to slide when people get busy – don’t let it happen.

6. Preserve, Protect, Defend: Your techs need the knowledge to avoid altering metadata, maintain chain-of-custody information and limit access to a working copy for processing and review.  My two cents: A good review platform will assist greatly in all three areas.

5. Natives Need Not Make You Restless: Consider exchanging files to be produced in their original/”native” formats to avoid huge out-of-pocket costs of converting thousands of files to image format.  My two cents: Be sure to address how redactions will be handled as some parties prefer to image those while others prefer to agree to alter the natives to obscure that information.

4. Get M.A.D.?  Then Get Even: Apply the Mutually Assured Destruction (M.A.D.) principle to agree with the other side to take off the table costly volumes of data, such as digital voicemails and back-up data created down the road.  My two cents: That’s assuming, of course, you have the same levels of data.  If one party has a lot more data than the other party, there may be no incentive for that party to agree to concessions.

3. Cooperate to Cull Aggressively and to Preserve Clawback Rights: Setting expectations regarding culling efforts and reaching a clawback agreement with opposing counsel enables each side to cull more aggressively to reduce eDiscovery costs.  My two cents: Some parties will agree on search terms up front while others will feel that gives away case strategy, so the level of cooperation may vary from case to case.

2. QA/QC: Employ Quality Assurance (QA) tests throughout review to ensure a high accuracy rate, then perform Quality Control (QC) testing before the data goes out the door, building time in the schedule for that QC testing.  Also, consider involving a search-methodology expert.  My two cents: I cannot stress that last point enough – the ability to illustrate how you got from the large collection set to the smaller production set will be imperative to responding to any objections you may encounter to the produced set.

1. Never Drop Your Laptop Bag and Run: Dig in, learn as much as you can and start building repeatable, efficient approaches.  My two cents: It’s the duty of your attorneys and providers to demonstrate competency in eDiscovery best practices.  How will you know whether they have or not unless you develop that competency yourself?

So, what do you think?  Are there other ways for CEOs to avoid eDiscovery nightmares?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: If You Use Auto-Delete, Know When to Turn It Off
 

Federal Rule of Civil Procedure 37(f), adopted in 2006, is known as the “safe harbor” rule.  It provides that “[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”

Let’s face it, every time we turn on our computers, we overwrite data.  And, the mere opening of files (without changing any data) can change the metadata of a file – for example, simply opening a Microsoft Access® database changes the last modified date of the Access file, even if no records are changed.  If there wasn’t some measure of “safe harbor” protection, an organization facing litigation might find it very difficult to conduct business during the case.

While it’s not always clear to what extent “safe harbor” protection extends, one case from a few years ago, Disability Rights Council of Greater Washington v. Washington Metrop. Trans. Auth., D.D.C. June 2007, seemed to indicate where it does NOT extend – auto-deletion of emails.  In this case, the defendant failed to suspend auto-delete on its email system when their preservation obligation commenced, resulting in emails only being available on back-up tapes.  Their argument that the tapes were “not reasonably accessible” was denied by the court, describing their request as “chutzpah”.

Of course, email, like any other type of ESI, should be subject to document retention and destruction policies and old emails should be purged when they reach the end of the retention period.  Microsoft Outlook® provides an option via its Auto Archive function to delete the emails instead of archiving them.  You can select this setting for all emails (via the Tools, Options menu, Other tab) or for selected folders (by right-clicking on them, selecting Properties and then selecting the AutoArchive tab).  That’s at the client level.

But, most organizations use Outlook through Exchange.  Exchange Manager enables administrators to set auto delete policies for the email user population to manage retention and destruction of emails, thus being able to disable  the auto delete function for users when the duty to preserve arises.  If your organization uses auto-delete, it’s important to have a policy in place for disabling auto-delete for litigation, whether at the Outlook client level, the Exchange level or with any other email system.

So, what do you think?  Does your organization use auto-deletion of emails?  Please share any comments you might have or if you’d like to know more about a particular topic.