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eDiscoveryDaily

eDiscovery Trends: Cloud Covered by Ball
 

What is the cloud, why is it becoming so popular and why is it important to eDiscovery? These are the questions being addressed—and very ably answered—in the recent article Cloud Cover (via Law Technology News) by computer forensics and eDiscovery expert Craig Ball, a previous thought leader interviewee on this blog.

Ball believes that the fears about cloud data security are easily dismissed when considering that “neither local storage nor on-premises data centers have proved immune to failure and breach”. And as far as the cloud's importance to the law and to eDiscovery, he says, "the cloud is re-inventing electronic data discovery in marvelous new ways while most lawyers are still grappling with the old."

What kinds of marvelous new ways, and what do they mean for the future of eDiscovery?

What is the Cloud?

First we have to understand just what the cloud is.  The cloud is more than just the Internet, although it's that, too. In fact, what we call "the cloud" is made up of three on-demand services:

  • Software as a Service (SaaS) covers web-based software that performs tasks you once carried out on your computer's own hard drive, without requiring you to perform your own backups or updates. If you check your email virtually on Hotmail or Gmail or run a Google calendar, you're using SaaS.
  • Platform as a Service (PaaS) happens when companies or individuals rent virtual machines (VMs) to test software applications or to run processes that take up too much hard drive space to run on real machines.
  • Infrastructure as a Service (IaaS) encompasses the use and configuration of virtual machines or hard drive space in whatever manner you need to store, sort, or operate your electronic information.

These three models combine to make up the cloud, a virtual space where electronic storage and processing is faster, easier and more affordable.

How the Cloud Will Change eDiscovery

One reason that processing is faster is through distributed processing, which Ball calls “going wide”.  Here’s his analogy:

“Remember that scene in The Matrix where Neo and Trinity arm themselves from gun racks that appear out of nowhere? That's what it's like to go wide in the cloud. Cloud computing makes it possible to conjure up hundreds of virtual machines and make short work of complex computing tasks. Need a supercomputer-like array of VMs for a day? No problem. When the grunt work's done, those VMs pop like soap bubbles, and usage fees cease. There's no capital expenditure, no amortization, no idle capacity. Want to try the latest concept search tool? There's nothing to buy! Just throw the tool up on a VM and point it at the data.”

Because the cloud is entirely virtual, operating on servers whose locations are unknown and mostly irrelevant, it throws the rules for eDiscovery right out the metaphorical window.

Ball also believes that everything changes once discoverable information goes into the cloud. "Bringing ESI beneath one big tent narrows the gap between retention policy and practice and fosters compatible forms of ESI across web-enabled applications".

"Moving ESI to the cloud," Ball adds, "also spells an end to computer forensics." Where there are no hard drives, there can be no artifacts of deleted information—so, deleted really means deleted.

What's more, “[c]loud computing makes collection unnecessary”. Where discovery requires that information be collected to guarantee its preservation, putting a hold on ESI located in the cloud will safely keep any users from destroying it. And because cloud computing allows for faster processing than can be accomplished on a regular hard drive, the search for discovery documents will move to where they're located, in the cloud. Not only will this approach be easier, it will also save money.

Ball concludes his analysis with the statement, "That e-discovery will live primarily in the cloud isn't a question of whether but when."

So, what do you think? Is cloud computing the future of eDiscovery? Is that future already here? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: Third Party Vendors Named in McDermott eDiscovery Malpractice Case
 

You might remember eDiscovery Daily's blog post a few weeks ago about the filing of an eDiscovery malpractice lawsuit against McDermott Will & Emery by J-M Manufacturing Co., a former client of McDermott's.

This case has struck a chord in the eDiscovery community since its filing on June 1, drawing attention to the practices and standards that are at the heart of eDiscovery and outsourced review. Now, the First Amended Complaint has revealed the third party vendors involved in the eDiscovery malpractice suit.

Navigant Consulting, Stratify and Hudson Legal Named in First Amended Complaint

On July 28, J-M Manufacturing filed the amended complaint to its case against McDermott. The amended malpractice complaint describes the role of the third party vendors hired by McDermott, as follows:

  • According to J-M Manufacturing, McDermott hired both Navigant Consulting, Inc. and Stratify, Inc. to run documents through a filter intended to identify and separate materials that were covered by attorney-client privilege and any documents not responsive to subpoenas.
  • Prior to the second production of privileged documents to the federal government, Hudson Legal was also hired by McDermott, and was tasked with reviewing documents identified as potentially privileged and classifying them as either: a) responsive and privileged, b) responsive and not privileged, or c) nonresponsive.

Despite the efforts of these three companies, approximately 3,900 privileged documents were included in the 250,000 discovery documents that were turned over to the government and, in turn, given to relators for examination. The relators subsequently refused to return the privileged documents on the grounds that McDermott twice conducted privilege reviews before producing the documents.

J-M Manufacturing Claims McDermott Held Files Hostage

The new amendment also includes the assertion that McDermott held relevant case files “hostage” against payment of an outstanding invoice of $530,477 after it was replaced as J-M Manufacturing's attorney. A McDermott partner reportedly emailed the president of J-M Manufacturing and said, "I'm told that our firm policy is not to release all files until full payment is made. If you'd like all the files now, please send a check for the entire $530,477 and we'll get them out to you promptly."

In the amended complaint, J-M Manufacturing contends that McDermott’s contact (including the above referenced email) violated the California Rules of Professional Conduct, preventing J-M from recognizing the “true nature and extent of the negligent disclosure” until it was too late.

In its own filing, McDermott responded to the amended complaint by criticizing J-M Manufacturing for "scandalous and irresponsible allegations that could not have been the result of a reasonable pre-filing inquiry." McDermott indicated that they’re “willing and able to set the record straight”, but has “resisted the temptation to tell the full story without first giving J-M the opportunity to withdraw its complaint”.  McDermott also warned that “J-M’s interests could be seriously compromised” if McDermott is forced to fully disclose the facts.

So, what do you think? Has this case degenerated into "scandalous and irresponsible allegations", or are McDermott and its vendors at fault? Will we see more cases like this? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Law: Possible Changes to the Federal Rules of Civil Procedure Affecting eDiscovery
 

As reported on Law Technology News recently, a subcommittee of the Judicial Conference of the United States is preparing to make recommendations about the possibility of changes to the Federal Rules of Civil Procedure that would improve eDiscovery procedures and rules in the United States, and affect how eDiscovery is conducted abroad.

eDiscovery Challenges up for Discussion

The subcommittee's upcoming meeting in Dallas, scheduled for September 9, 2011, is intended to cover the discussion points documented by the Advisory Committee on Civil Rules in April 2011.

Those discussion points for September currently include:

  • The scope of challenges presented by electronically stored information ("ESI"),
  • Limitations of current U.S. and overseas rules that affect discovery, and
  • The impact of ongoing technological advancements.

Although technology continues to progress, creating new situations and questions relevant to eDiscovery, the rules that govern discovery of electronic information and documents have not been changed since 2006. David Campbell, the committee chairman and District Court Judge for Arizona, says that although improvements to these rules are important, change won't happen overnight. Any official changes are not likely to come into effect until 2013 or 2014.

At this point, Campbell says, the September 9 meeting is intended as an opportunity "to learn from these folks… a due diligence effort on the part of our subcommittee."

Three Types of Rules Affecting eDiscovery

The subcommittee plans to discuss three types of rules:

  • Specific rules for electronically stored information,
  • More general rules related to eDiscovery, and
  • Rules that specifically cover sanctions.

If enough progress is made, the results of the September 9 conference will be presented as a summary and proposal in November. In turn, this proposal would likely be up for discussion in March of 2012, when the subcommittee's ideas will be open to public discussion. The end goal is for any changes to rules to be approved by December of 2012, although it could take as long as 2014 for any new rules to come into effect.

So, what do you think? Do you expect major changes to the rules regarding eDiscovery, and if so, what would you like to see changed, and why? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Case Law: Court Upholds Sanctions for Intentional Spoliation of Unallocated Space Data

The Supreme Court of Delaware recently upheld the sanctions against the defendant for wiping the unallocated space on his company’s computer system, despite a court order prohibiting such destruction.

In Genger v. TR Investors, LLC, No. 592,2010, 2011 WL 2802832 (Del. July 18, 2011), Arie Genger, CEO of Trans-Resources, Inc., argued that sanctions against him were unreasonable and made a motion for the court to overturn its previous decision regarding spoliation of discovery materials. Instead, after due process, the court upheld its earlier decision, as follows:

  • In TR Investors, LLC v. Genger, 2009 WL 4696062 (Del. Ch. Dec. 9, 2009), the defendant was found to have intentionally spoliated electronic discovery documents by instructing an IT consultant to wipe unallocated space on his company’s computers. This action was taken in contempt of court and in contravention of a Status Quo order directing all parties to prevent alteration or destruction of any company documents.
  • Genger was penalized with an order to produce 10 documents for discovery that had previously been considered privileged, the raising of the burden of persuasion with regard to his defense, a preclusion from his testimony being permitted as factual evidence, and several sanctions.
  • The sanctions included attorney’s fees and expenses related to the sanctions motions, which totaled roughly $3.2 million. At the time, this amount was agreed upon by all parties.
  • Following this 2009 order, the defendant appealed the sanctions, arguing that because the court’s Status Quo order did not explicitly refer to unallocated hard drive space, the obligation to preserve documents and discoverable materials found there became “an impossible burden… effectively requiring the company to refrain from using its computers entirely.”
  • On July 18, the court decided in favor of upholding the sanctions against Genger. The reasoning behind this decision revolved around the fact that Genger did not unknowingly delete discoverable documents in the normal course of using his company’s computers, but instead, deliberately set out to destroy information that was included in the court’s Status Quo order.
  • The court was clear in emphasizing that this decision is meant to apply only in such a situation, “where a party is found intentionally to have taken affirmative steps to destroy or conceal information to prevent its discovery at a time that party is under an affirmative obligation to preserve that information.”
  • The court also recommended that, in the future, parties be clear in discussing unallocated space on computer hard drives and in deciding to either include or exclude such space from preservation orders like this one.

So, what do you think? Have you been involved in any cases resulting in sanctions associated with deletion of unallocated space data? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: OLP Response to LTN Article Regarding eDiscovery Certifications
 

Yesterday, Law Technology News (LTN) published an article entitled E-Discovery Certification: Sham Exams?, by Patrick Oot, which questioned the validity of several of the eDiscovery certification programs that, in their words, are “sprouting up faster than dandelions in May grass”.

As you can imagine, the article did not go over swimmingly with organizations that sponsor eDiscovery certification programs.

One of those is The Organization of Legal Professionals (OLP).  Chere Estrin is the Chairperson of the Board of Directors of the OLP.  Yesterday, I interviewed her regarding the LTN article and the OLP certification program.  Here is the interview:

What is the OLP’s response to the article published in Law Technology News characterizing eDiscovery Certifications as “Sham Exams”?

It appears as though LTN was trying hard to get some juicy August ratings by using an exaggerated title for the article.  The title of the negative article was placed right over the positive articles making it appear as though OLP fell into the sham characterization.  This layout caused many people to categorize all eDiscovery certifications as sham exams.  That is not so.

General readers would have to know details of the differences between OLP and other organizations to realize that Mr. Oot was not at all talking about OLP.  For example, he says that he is against the "for-profit" organization providing certification – OLP is a non-profit.  He says that the organization takes $995.00 for the exam.  OLP charges $695.00 for prep courses including exam and only $275.00 to take the exam without the prep course.

Further, he states that the Board is made up of unrecognizable names.  OLP has a blue ribbon panel of household and well-respected names:  Mary Mack, Herb Roitblat, Doug Mitchell, Tom O'Connor, Browning Marean, (former member), Mr. Oot's partner, Anne Kershaw (former member),  Professor Sara Hook, Steve Lief, Laura Zubulake (the plaintiff) and other well-respected professionals. Most importantly, Patrick Oot himself was a member of OLP's Board of Governors for well over a year.  He only resigned to take a position with the SEC as that entity did not allow its attorneys to sit on boards.  It is clear that Mr. Oot was not talking about OLP.

What differentiates the OLP eDiscovery Certification Program from other programs in the industry?

The Certified eDiscovery Professional (CeDP) was developed in partnership with Pearson, a $7 billion corporation with a division that specializes in testing and certification exams.  Pearson has developed well-known exams such as LSATs, GRE, GMATS, to name just a few.

OLP provided the content from over 30 top experts in the field in the US and internationally. The exam was then peer-reviewed by subject matter experts. Top experts include partners in major firms, in-house legal department counsel, well-known consultants, Ph.D.s, authors, litigation support experts, household icons in the industry and law professors.

Pearson provided 5 Ph.D.s who specialize in psychometrics and certification exams.  Pearson is also provides the technology and over 1,000 secured testing environments around the world.  The test has been in development for over 18 months.  OLP has been in no rush to market.

Certification exams differ from certificate programs because certifications include an experience component. Certificate programs, on the other hand, award certificates once a course of study has been completed. They do not require previous work experience.  Taking a course and taking a test about what you took in a course is not certification. That would be like saying you pray in church and went to Sunday school, so therefore you are a priest.  Something is definitely missing.

To be certified, the exam must meet certain standards set down by the National Association of Certifying Associations, which the CeDP does.  It is given in over 1,000 worldwide secured environments with attending proctors.

The CeDP Is a rigorous, objective, sound and knowledge-based exam without the influence of products or services.  It is not given by a vendor secretly pushing their products or services.

The science of psychometrics was applied to the exam. Psychometrics is a combination of psychology and measurement whereby measurement professionals review performance statistics for every item and make recommendations for examination improvement, ensuring that the range of item difficulty is appropriate and that problem items are identified for review.

What do you think it will take for any eDiscovery certification program to be accepted as a standard for certifying knowledge of eDiscovery best practices?

Overcoming fear.  Fear is the biggest career blocker. Generally, those who are self-taught fear that they won't be able to pass the exam.  Right now, other than OLP, there is no comprehensive eDiscovery training other than webinars, a seminar here and there or a book. Even conferences can only give overviews.   It is true that Georgetown University has a program but I believe it is only about a week long, is limited to a certain low volume number that can attend and cost something like $5,000.  While it has a reputation as a top-of-the-line program, it cannot reach the masses.  There are over 1 million licensed attorneys in the U.S., over 300,000 paralegals and an untold number of other legal professionals in the field of litigation – the vast majority of whom have not had formal training.

eDiscovery is different than any other practice area the law has ever seen in that it marries technology with the law.  Very few people are trained in both arenas.  It is not unreasonable to expect certification and formal education to be required in order to provide top of the line, expert services to clients.

Statistics bear out that those fields that turn to certification begin to produce higher paid employees – as much as 10 – 20% higher than those without certifications.   I also think money talks and with this tough market, legal professionals are going to realize that employers value the employee who takes the time and effort to get formally educated and to stand up and not be afraid to be tested on what they know.

Bear in mind, that certification does not "certify" that someone is an expert.  It is only a tool to ensure that a professional understands the core competencies.

Where can our readers go to find out more about the OLP certification program?

They can go to http://www.theolp.org/Default.aspx?pageId=401708 for more information.

About Chere: In addition to being the Chairperson of the Board of Directors of the Organization of Legal Professionals.  She is the CEO of the National Association for Freelance Legal Professionals and CEO of Estrin Education, Inc.  She is the Editor-in-Chief of KNOW Magazine and SUE for Women Litigators.  Ms. Estrin was formerly with two major law firms; a top executive in a $5 billion corporation; and President of The Estrin/Quorum Group, a division of Quorum Litigation (acquired by Kroll Ontrack).  She has written 10 books on legal careers and has been interviewed by Newsweek, The Los Angeles Times, The Chicago Tribune, National Law Journal and other prestigious publications.  She is a recipient of the Los Angeles/Century City Chamber of Commerce Women of Achievement Award, an Inc. Magazine Entrepreneur of the Year finalist and a California Lawyer Magazine LAMMIE award winner. She can be reached at chere.estrin@theolp.org.

So, what do you think? Have you been through a certification program, such as the CeDP program from the OLP?  Please share any comments you might have or if you'd like to know more about a particular topic.

Working Successfully with eDiscovery and Litigation Support Service Providers: Paper is Still Important, Part 2
 

Friday, we talked about the information you should include in a request for proposal for processing a paper discovery collection.  Today we’ll review some questions you should ask of a service provider to help you to select the provider that’s the best fit for your case. 

Of course, you’ll ask for pricing information, if the vendor can meet your schedule requirements, and for references.  In addition, here are questions to ask and information to request:

  1. Describe the qualifications of project management staff:  What is the average tenure in the industry?  At the organization?  What education and prior work experience is required?
  2. Describe the qualifications of project staff:  What is the average tenure in the industry?  At the organization?  Describe the training given to new processing staff.
  3. Describe the workflow process for the required services, including information on the flow of documents and data through the process.
  4. What technology is used for the services that are required?
  5. Describe quality control procedures and policies, including how errors are fixed and how feedback on work is funneled back to the staff.
  6. Describe the level of quality control that is done.  For example: percentage of the data checked, and whether that percentage applies to total characters, data fields or documents.
  7. Describe the data entry system that you use, including a field-by-field description of any validation that occurs during data entry.  Is double-key entry being conducted?
  8. Describe post-processing automated validation that occurs.
  9. If any portion of all of the work will be subcontracted to another service provider, identify that provider (including geographic location of the facility where the work will be done), and provide responses to each information-point above for each sub-contractor.

The response to these questions and information requests should give you the information you need to choose a vendor that’s a good fit for your project.  This means Friday and today, this blog is officially renamed to pDiscovery Daily!

What questions to you ask and what information do you request in an RFP for paper processing?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

Working Successfully with eDiscovery and Litigation Support Service Providers: Paper is Still Important
 

For several years now, the focus of our discovery efforts has been handling ESI.  Paper, however, hasn’t gone away yet.  And it probably won’t any time soon.  People still have at least small collections of paper that need to be handled.

What’s the best way to handle paper?  Convert it ASAP and blend it into the rest of the collection so attorneys can do a comprehensive review of the entire universe of potentially responsive documents.  That means scanning, coding, and OCR processing to enable the paper to reviewed and searched.

Here’s information the vendor will need to give you accurate cost and schedule information for handling the paper portion of your collection:

  1. A description of the services that you will require (for example, establishing document boundaries, establishing document relationships, document reassembly, periphery coding, in-text coding, scanning, OCR).
  2. The approximate number of pages and documents in the collection.
  3. A description of the condition of the paper and characteristics (are the pages photocopies or originals? Staples and paper clips? Oversized and undersized pages? Are there sticky notes?).  Include special instructions, where warranted (for example, “Sticky notes are to be removed, scanned separately and placed before the documents to which they are attached”).
  4. Whether paper will be shipped/delivered to the vendor or whether on-site work will be required.  If on-site work is required, the locations at which the paper will be available.
  5. The date on which the pages will be available to the service provider, and a schedule for collections that will be available for increments.
  6. A description of the types of document in the collection (for example, correspondence, contracts, form documents, reports, and so on).
  7. If coding is required, a list of the fields to be captured with descriptions and format requirements for each field.
  8. If coding is required, a description of levels of treatment to be applied, if any have been established.
  9. If coding is required, a description of any data standardization you will require, and lists of valid entries for fields with a controlled vocabulary.
  10. A description of the deliverables you will require (image file formats, load file formats, single-page or multi-page text files, and so on)
  11. The date by which the project must be completed.

Armed with this information, a good vendor should be able to provide accurate cost and schedule information for processing your paper collection.  On Monday, we’ll cover RFP questions for the vendors to answer regarding their paper processing services.  This means today and Monday, this blog is officially renamed to pDiscovery Daily!

What type of information do you provide to a vendor in an RFP for processing paper?  Please share any comments you might have and let us know if you’d like to know more about an RFP topic.

eDiscovery Case Law: Court Orders Sanctions in Response to "Callous and Careless Attitude" of Defendant in Discovery

A Special Master determined that multiple discovery failures on the part of the defendant in an indemnity action were due to discovery procedures “wholly devoid of competence, yet only once motivated by guile”. Accordingly, the court ordered sanctions against the defendant and also ordered the defendant to pay all costs associated with its discovery failures, including plaintiff’s attorney fees and costs.

The defendant’s discovery efforts in PIC Group, Inc. v. LandCoast Insulation, Inc., No. 1:09-CV-662-KS-MTP, 2011 WL 2669144 (S.D. Miss. July 7, 2011) resulted in several discovery failures, including spoliation of data, mostly through carelessness and incompetence:

  • After consideration of the computer forensics experts recommended by the parties in this case, the court rejected all seven recommendations and appointed its own Special Master (Craig Ball, a previous thought leader interviewee on eDiscovery Daily) to conduct an investigation into the indemnity case, which would revolve around the collapse of scaffolding erected by the defendant.
  • The defendant’s efforts resulted in multiple discovery failures, including: 1) failure to impose “any corporate policy, procedure, or concerted effort [to] preserve electronic data”; 2) no effort to preserve or collect ESI until it was too late to protect the relevant data; 3) the theft of an employee’s laptop and subsequent loss of the backup of that hard drive; and 4) the erasure of another computer containing relevant ESI sometime two or three months after the collapse of the scaffolding at issue in this lawsuit.
  • As a result, the Special Master recommended sanctions against the defendant for its “callous and careless attitude” and sloppy measures taken in the course of discovery.
  • In response to these proposed sanctions, the defendant argued that none of its failures in the course of discovery were due to bad faith, and demonstrated that the plaintiff suffered only minimal prejudice.
  • Although the Special Master determined that the discovery failures were caused by a lack of caution while collecting and preserving evidence, rather than willful intent to alter discovery, he still recommended, and the court ordered, sanctions against the defendant.
  • Accordingly, the defendant was ordered to pay the plaintiff’s attorney fees and expenses accrued as a result of the defendant’s discovery failures, as well as pay the Special Master’s fees and expenses.  The defendant was also compelled to produce an image of the laptop that had been erased (from imaging conducted after the erasure) and the court reopened discovery in this case.  The court declined the Special Master’s recommendation for additional monetary sanctions ($50,000), though it did adopt his recommendation that the defendant “shall not seek indemnification or reimbursement from their insurance company” to pay the assessed fees.

So, what do you think? Were these sanctions merited, or should there be clear intent to deceive for such sanctions to be awarded? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Budgeting, Part 3: Understanding the Elements Contributing to Cost
 

We've spent some time in Part 1 and Part 2 of this series discussing the factors and assumptions that go into eDiscovery budgeting, but what about the concrete eDiscovery process itself? In addition to understanding the factors that go into budgeting, it's important to recognize the elements that contribute to eDiscovery costs.

There are five primary factors that contribute to the costs of eDiscovery in progress:

  • Collection: Collection of ESI can be simple and effortless, conducted by the client itself, or it may require the assistance of a hired third party to gain access to the ESI. The cost of collection can go up depending on the level of travel required. Forensic investigation and custodian interviews are not always necessary, but also increase the cost in cases requiring them.
  • Volume: The raw volume of ESI is one factor in the cost of eDiscovery, but not necessarily the one that counts. What's most important is the volume that must be reviewed by human eyes—and that can mean all of it, or only a fraction of the total ESI retrieved. It's possible to filter eDiscovery data by removing unwanted file types, limiting a search to a particular date range, or searching for relevant key words and phrases in documents. In order to moderate cost, it's usually wise to start with a more limited eDiscovery scope and expand it to cover a larger volume if necessary.  Many eDiscovery service providers offer free early cost assessment services to help attorneys estimate the volume of potentially responsive data that needs to be processed and reviewed. 
  • Number of Custodians: The number of sources involved in the collection of data can increase exponentially the amount of time and effort involved in eDiscovery, thereby increasing the cost accordingly.
  • Human Review: This is the most expensive factor in eDiscovery, requiring as much as 80% of the total eDiscovery budget.  It requires not only human beings working on an hourly wage, but time spent on training and the learning curve as they become more adept at recognizing and refining the key elements and terms required to be produced in a particular case. The more people and time involved in data review, the greater the probable expense.
  • Case Complexity: While a simple case may require a limited scope and review process, complex court cases can involve searching the same documents for multiple types of information for discovery. As a result, complex cases require more time spent on a document review strategy, as well as on a more elaborate review process.

So, what do you think? Are there any other major factors in eDiscovery budgeting or expense? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Breaking News: News International to Suspend Deletion of Emails and Other Documents
 

According to The Independent, staff at Rupert Murdoch’s newspapers has been warned to stop deleting any documents that may be relevant to the current investigations, as a suspension of its usual policy about deletion of documents goes into effect.

Over the course of the 2011 investigation into illegal voicemail hacking by News International employees, there has been contention over the ongoing deletion of documents at the newspaper and its subsidiaries. But only during this past weekend did News International's parent company, News Corp, finally send an email to all of its employees instructing them to take measures preventing the deletion of documents that might be related to the investigation, including emails and other ESI.  Specifically, the email instructed employees to “Please suspend any automatic deletion or discarding of any documents, whether electronic or paper, including emails or drafts of documents… If you are uncertain whether a document is relevant… you should preserve it.”

Of course, the News Corp scandal has been not only significant eDiscovery news, but major world news as well.

  • Since January 2011, police have been investigating a list of roughly 4,000 potential targets whose voicemails may have been hacked as part of this scandal – including Hollywood celebrities, sports figures, politicians, and even members of the British Royal Family, most of whom were unaware of how easily their cell phone functions were hacked.
  • The newsroom at News of the World, the newspaper implicated in the systematic phone hacking, has been closed.
  • Sean Hoare, the whistle-blower who disclosed phone hacking at News of the World, was found dead in his home in Watford, Hertfordshire.  No cause of death has yet been identified.
  • During testimony to Parliament last week, Rupert Murdoch was attacked – by a pie wielding comedian, who was thwarted by Murdoch’s wife Wendi.

Although this email sends a positive message about News Corp's willingness to protect eDiscovery information from this point forward, the instruction arguably comes too late to protect the documents and other ESI that have potentially been destroyed in the months since the investigation into the paper's illegal phone hacking began as well as the years when News Corp faced numerous hacking claims during key periods associated with the those claims.  News International has acknowledged that some messages may be recoverable on backup disks, and the police are trying to recover that information now, said Tom Watson, a Labor Party member of Parliament.

From an eDiscovery perspective, this story may become “Enron-esque” before it’s all over.

So, what do you think? Is this instruction from News International a step toward greater openness and responsibility in this investigation, or is it simply a case of too little, too late? Please share any comments you might have or if you'd like to know more about a particular topic.