Identification Archives

eDiscovery Best Practices: Assessing Your Data Before Meet and Confer Shouldn’t Be Expensive

August 14, 2012

So, you’re facing litigation and you need help from an outside provider to “get your ducks in a row” to understand how much data you have, how many documents have hits on key terms and estimate the costs to process, review and produce the data so that you’re in the best position to negotiate appropriate terms at the Rule 26(f) conference (aka, meet and confer). But, how much does it cost to do all that? It shouldn’t be expensive. In fact, it could even be free.

Metadata Inventory

Once you’ve collected data from your custodians, it’s important to understand how much data you have for each custodian and how much data is stored on each media collected. You should also be able to break the collection down by file type and by date range. A provider should be able to process the data and provide a metadata inventory of the collected electronically stored information (ESI) that enables the inventory to be queried by:

Data source (hard drive, folder, or custodian)
Folder names and sizes
File names and sizes
Volume by file type
Date created and last date modified

When this done prior to the Rule 26(f) conference, it enables your legal team to intelligently negotiate at the conference by understanding the potential volume (and therefore potential cost) of including or excluding certain custodians, document types, or date ranges in the discovery order.

Word Index of the Collection

Want to get a sense of how many documents mention each of the key players in the case? Or, how many mention the key issues? After a simple index of the data, a provider should be able to at least provide a consolidated report of all the words (not including stop words, of course), from all sources that includes number of occurrences for each word in the collected ESI (at least for files that contain embedded text). This initial index won’t catch everything – image-only files and exception (e.g., corrupted or password protected) files won’t be included – but it will enable your legal team to intelligently negotiate at the meet and confer by understanding the potential volume (and therefore potential cost) of including or excluding certain key words in the discovery order.

eDiscovery Budget Worksheet

Loading the metadata inventory into an eDiscovery budget worksheet that includes standard performance data (such as document review production statistics) and projected billing rates and costs can provide a working eDiscovery project budget projection for the case. This projection can enable your legal team to advise their client of projected costs of the case, negotiate cost sharing or cost burden arguments in the meet and confer, and create a better discovery production strategy.

It shouldn’t be expensive to prepare these items to develop an initial assessment of the case to prepare for the Rule 26(f) conference. In fact, the company that I work for, CloudNine Discovery, provides these services for free. But, regardless who you use, it’s important to assess your data before the meet and confer to enable your legal team to understand the potential costs and risks associated with the case and negotiate the best possible approach for your client.

So, what do you think? What analysis and data assessment do you perform prior to the meet and confer? Please share any comments you might have or if you’d like to know more about a particular topic.

P.S.: No ducks were harmed in the making of this blog post.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery History: Zubulake’s e-Discovery

August 2, 2012

In the 22 months since this blog began, we have published 133 posts related to eDiscovery case law. When discussing the various case opinions that involve decisions regarding to eDiscovery, it’s easy to forget that there are real people impacted by these cases and that the story of each case goes beyond just whether they preserved, collected, reviewed and produced electronically stored information (ESI) correctly. A new book, by the plaintiff in the most famous eDiscovery case ever, provides the “backstory” that goes beyond the precedent-setting opinions of the case, detailing her experiences through the events leading up to the case, as well as over three years of litigation.

Laura A. Zubulake, the plaintiff in the Zubulake vs. UBS Warburg case, has written a new book: Zubulake’s e-Discovery: The Untold Story of my Quest for Justice. It is the story of the Zubulake case – which resulted in one of the largest jury awards in the US for a single plaintiff in an employment discrimination case – as told by the author, in her words. As Zubulake notes in the Preface, the book “is written from the plaintiff’s perspective – my perspective. I am a businessperson, not an attorney. The version of events and opinions expressed are portrayed by me from facts and circumstances as I perceived them.” It’s a “classic David versus Goliath story” describing her multi-year struggle against her former employer – a multi-national financial giant.

Zubulake begins the story by developing an understanding of the Wall Street setting of her employer within which she worked for over twenty years and the growing importance of email in communications within that work environment. It continues through a timeline of the allegations and the evidence that supported those allegations leading up to her filing of a discrimination claim with the Equal Employment Opportunity Commission (EEOC) and her subsequent dismissal from the firm. This Allegations & Evidence chapter is particularly enlightening to those who may be familiar with the landmark opinions but not the underlying evidence and how that evidence to prove her case came together through the various productions (including the court-ordered productions from backup tapes). The story continues through the filing of the case and the beginning of the discovery process and proceeds through the events leading up to each of the landmark opinions (with a separate chapter devoted each to Zubulake I, III, IV and V), then subsequently through trial, the jury verdict and the final resolution of the case.

Throughout the book, Zubulake relays her experiences, successes, mistakes, thought processes and feelings during the events and the difficulties and isolation of being an individual plaintiff in a three-year litigation process. She also weighs in on the significance of each of the opinions, including one ruling by Judge Shira Scheindlin that may not have had as much impact on the outcome as you might think. For those familiar with the opinions, the book provides the “backstory” that puts the opinions into perspective; for those not familiar with them, it’s a comprehensive account of an individual who fought for her rights against a large corporation and won. Everybody loves a good “David versus Goliath story”, right?

The book is available at Amazon and also at CreateSpace. Look for my interview with Laura regarding the book in this blog next week.

So, what do you think? Are you familiar with the Zubulake opinions? Have you read the book? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: You May Need to Collect from Custodians Who Aren’t There

July 9, 2012

A little over a week ago, we talked about how critical the first seven to ten days are in the case once litigation hits. Key activities to get a jump on the case include creating a list of key employees most likely to have documents relevant to the litigation and interviewing those key employees, as well as key department representatives, such as IT for information about retention and destruction policies. These steps are especially important as they may shed light on custodians you might not think about – the ones who aren’t there.

No, I’m not talking about the Coen brothers’ movie The Man Who Wasn’t There, starring Billy Bob Thornton, I’m talking about custodians who are no longer with the organization.

Let’s face it, when key employees depart an organization, many of those organizations have a policy in place to preserve their data for a period of time to ensure that any data in their possession that might be critical to company operations is still available if needed. Preserving that data may occur in a number of ways, including:

Saving the employee’s hard drive, either by keeping the drive itself or by backing it up to some other media before wiping it for re-use;
Keeping any data in their network store (i.e., folder on the network dedicated to the employee’s files) by backing up that folder or even (in some cases) simply leaving it there for access if needed;
Storage and/or archival of eMail from the eMail system;
Retention of any portable media in the employee’s possession (including DVDs, portable hard drives, PDAs, cell phones, etc.).

As part of the early fact finding, it’s essential to determine the organization’s retention policy (and practices, especially if there’s no formal policy) for retaining data (such as the examples listed above) of departed employees. You need to find out if the organization keeps that data, where they keep it, in what format, and for how long.

When interviewing key employees, one of the typical questions to ask is “Do you know of any other employees that may have responsive data to this litigation?” The first several interviews with employees often identify other employees that need to be interviewed, so the interview list will often grow to locate potentially responsive electronically stored information (ESI). It’s important to broaden that question to include employees that are no longer with the organization to identify any that also may have had responsive data and try to gather as much information about each departed employee as possible, including the department in which they worked, who their immediate supervisor was and how long they worked at the company. Often, this information may need to be gathered from Human Resources.

Once you’ve determined which departed employees might have had responsive data and whether the organization may still be retaining any of that data, you can work with IT or whoever has possession of that data to preserve and collect it for litigation purposes. Just because they aren’t there doesn’t mean they’re not important.

So, what do you think? Does your approach for identifying and collecting from custodians include those who aren’t there? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: When Litigation Hits, The First 7 to 10 Days is Critical

June 28, 2012

When a case is filed, several activities must be completed within a short period of time (often as soon as the first seven to ten days after filing) to enable you to assess the scope of the case, where the key electronically stored information (ESI) is located and whether to proceed with the case or attempt to settle with opposing counsel. Here are several of the key early activities that can assist in deciding whether to litigate or settle the case.

Activities:

Create List of Key Employees Most Likely to have Documents Relevant to the Litigation: To estimate the scope of the case, it’s important to begin to prepare the list of key employees that may have potentially responsive data. Information such as name, title, eMail address, phone number, office location and where information for each is stored on the network is important to be able to proceed quickly when issuing hold notices and collecting their data.
Issue Litigation Hold Notice and Track Results: The duty to preserve begins when you anticipate litigation; however, if litigation could not be anticipated prior to the filing of the case, it is certainly clear once the case if filed that the duty to preserve has begun. Hold notices must be issued ASAP to all parties that may have potentially responsive data. Once the hold is issued, you need to track and follow up to ensure compliance. Here are a couple of recent posts regarding issuing hold notices and tracking responses.
Interview Key Employees: As quickly as possible, interview key employees to identify potential locations of responsive data in their possession as well as other individuals they can identify that may also have responsive data so that those individuals can receive the hold notice and be interviewed.
Interview Key Department Representatives: Certain departments, such as IT, Records or Human Resources, may have specific data responsive to the case. They may also have certain processes in place for regular destruction of “expired” data, so it’s important to interview them to identify potentially responsive sources of data and stop routine destruction of data subject to litigation hold.
Inventory Sources and Volume of Potentially Relevant Documents: Potentially responsive data can be located in a variety of sources, including: shared servers, eMail servers, employee workstations, employee home computers, employee mobile devices, portable storage media (including CDs, DVDs and portable hard drives), active paper files, archived paper files and third-party sources (consultants and contractors, including cloud storage providers). Hopefully, the organization already has created a data map before litigation to identify the location of sources of information to facilitate that process. It’s important to get a high level sense of the total population to begin to estimate the effort required for discovery.
Plan Data Collection Methodology: Determining how each source of data is to be collected also affects the cost of the litigation. Are you using internal resources, outside counsel or a litigation support vendor? Will the data be collected via an automated collection system or manually? Will employees “self-collect” any of their own data? Answers to these questions will impact the scope and cost of not only the collection effort, but the entire discovery effort.

These activities can result in creating a data map of potentially responsive information and a “probable cost of discovery” spreadsheet (based on initial estimated scope compared to past cases at the same stage) that will help in determining whether to proceed to litigate the case or attempt to settle with the other side.

So, what do you think? How quickly do you decide whether to litigate or settle? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Court Allows Third Party Discovery Because Defendant is an “Unreliable Source”

June 4, 2012

Repeatedly referring to the defendant’s unreliability and untrustworthiness in discovery and “desire to suppress the truth,” Nebraska Magistrate Judge Cheryl R. Zwart found, in Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., No. 8:10CV365, (D. Neb. May 18, 2012), that the defendant avoided responding substantively to the plaintiff’s discovery requests through a pattern of destruction and misrepresentation and therefore monetary sanctions and an adverse jury instruction at trial were appropriate.

In this trademark action, Judge Zwart awarded sanctions of extensive discovery costs against a defendant that destroyed discoverable electronic evidence, failed to search for and locate other electronically stored information (ESI), and made false representations in affidavits and in court regarding its efforts to search for this evidence. In addition, she allowed the plaintiff to conduct discovery by contacting directly the defendant’s current and former clients, despite the court’s acknowledgment that such contact could harm the defendant’s business. Finally, Judge Zwart recommended an adverse jury instruction be given at trial.

Throughout a lengthy and contentious discovery process, the defendant claimed that its failure to produce any electronic documents containing the plaintiff’s mark demonstrated that there simply were no such documents. What the court ultimately discovered, however, was that no documents were produced for very different reasons: (1) the defendant appeared to have a virtually nonexistent records retention policy; (2) the defendant recovered its external hard drives from its landlord just before the landlord received a subpoena for the hard drives, leading the landlord to claim he did not possess the files; (3) to “comply” with discovery requests, the defendant had an employee who is not a computer expert conduct a keyword search consisting of one word (“Kiewit”) of the defendant’s files (from her own workstation) for the name of the plaintiff’s mark and recovered only two nonresponsive documents; and (4) the defendant discarded what it claimed was a non-functioning server the same month that it received notice of the plaintiff’s discovery requests.

The court ordered a forensic examination of the defendants’ computer systems that revealed thousands of documents containing the keyword “Kiewit” on its face as well as in its metadata. It also revealed at least one document that had been previously produced was missing from the electronic files, contributing to the evidence of spoliation. In ruling, the court pointed out that “considering Defendant’s very liberal policy of not keeping documents, consolidating their records in one location, or organizing their files, their efforts to locate relevant electronic files were woefully inadequate.”

As a consequence of the defendants’ “obstreperous” conduct, Judge Zwart found sanctions were appropriate, including monetary awards and an adverse jury instruction. She granted sanctions pursuant to its “authority to sanction the misconduct of parties and their attorneys . . . derived from the Federal Rules of Civil Procedure and the inherent power of the court,” as well as its “power to shape the appropriate remedy including default judgment, striking pleadings, an adverse jury instruction, and an award of attorney’s fees and costs” derived from precedent. Judge Zwart noted, “The most severe sanctions are reserved for those litigants demonstrating ‘blatant disregard of the Court’s orders and discovery rules’ [and] engaging in a pattern of deceit by presenting false and misleading answers and testimony under oath in order to prevent their opponent from fairly presenting its case.’”

Furthermore, Judge Zwart found the defendants’ conduct dictated that the plaintiff should be permitted to conduct third-party discovery. The plaintiff argued that it needed to contact the defendants’ clients in an effort to determine whether and how the defendants used the plaintiff’s trademark, whereas the defendants argued that they would suffer “irreparable harm” should the plaintiff reach out to their current and former clients. Despite courts’ general reluctance to allow direct contact with litigants’ clients in intellectual property cases, Judge Zwart here found that the plaintiff showed the clients’ information was “relevant and necessary”; moreover, because “Defendants are simply not a reliable source of information” and they “continue to attempt to use client confidentiality as a means of preventing Plaintiff from discovering relevant information,” the plaintiff’s contact with the clients would be proper.

So, what do you think? Did the court’s sanctions go far enough or should they have been even tougher? Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required). For eDiscovery news and best practices, check out the Applied Discovery Blog here.

eDiscovery History: A Look Back at Zubulake

March 16, 2012

Yesterday, we discussed a couple of cases within a month’s time where the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, 220 FRD 212. Those of us who have been involved in litigation support and discovery management for years are fully aware of the significance of the Zubulake case and its huge impact on discovery of electronic data. Even if you haven’t been in the industry for several years, you’ve probably heard of the case and understand that it’s a significant case. But, do you understand just how many groundbreaking opinions resulted from that case? For those who aren’t aware, let’s take a look back.

The plaintiff, Laura Zubulake, filed suit against her former employer UBS Warburg, alleging gender discrimination, failure to promote, and retaliation. Southern District of New York Judge Shira Sheindlin’s rulings in this case are the most often cited in the area of electronic discovery, and were issued prior to the 2006 amendments to the Federal Rules of Civil Procedure. That’s somewhat like establishing laws before the Ten Commandments! The important opinions related to eDiscovery are commonly known as Zubulake I, Zubulake III, Zubulake IV and Zubulake V. Here is a summary of each of those opinions:

Zubulake v. UBS Warburg, 217 F.R.D. 309 (Zubulake I) and Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003) (Zubulake III)

The plaintiff argued that key evidence was located in various emails exchanged among employees of UBS, the defendant. Initially, the defendant produced about 350 pages of documents, including approximately 100 pages of email, but the plaintiff produced approximately 450 pages of email correspondence on her own. To address the discrepancy, the plaintiff requested for UBS to locate the documents that existed in backup tapes and other archiving media.

The defendant, arguing undue burden and expense, requested the court to shift the cost of production to the plaintiff, citing Rowe Entertainment v. The William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002). In May 2003, the court ruled stating that whether the production of documents is unduly burdensome or expensive “turns primarily on whether it is kept in an accessible or inaccessible format”. The court determined that the issue of accessibility depends on the media on which data are stored. It described five categories of electronic media, as follows:

Online data, including hard disks;
Near-line data, including optical disks;
Offline storage, such as magnetic tapes;
Backup tapes;
Fragmented, erased and damaged data.

The last two categories were considered inaccessible as they were not readily available and thus subject to cost-shifting. Discussing the Rowe decision, the court concluded that it needed modification and created a new seven factor balance test for cost-shifting:

The extent to which the request is specifically tailored to discover relevant information;
The availability of such information from other sources;
The total cost of production, compared to the amount in controversy;
The total cost of production, compared to the resources available to each party;
The relative ability of each party to control costs and its incentive to do so;
The importance of the issues at stake in the litigation; and
The relative benefits to the parties of obtaining the information.

The defendant was ordered to produce, at its own expense, all responsive email existing on its servers, optical disks, and five backup tapes as selected by the plaintiff. The court would only conduct a cost-shifting analysis after the review of the contents of the backup tapes.

In July 2003, Zubulake III applied the cost-shifting test outlined in Zubulake I based on the sample recovery of data from five backup tapes. After the results of the sample restoration, both parties wanted the other to fully pay for the remaining backup email. The sample cost the defendant about $19,003 for restoration but the estimated costs for production was $273,649, including attorney and paralegal review costs. After applying the seven factor test, it determined that the defendant should account for 75 percent of the restoration and searching costs, excluding attorney review costs.

Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV)

During the restoration effort, the parties discovered that some backup tapes were no longer available. The parties also concluded that relevant emails created after the initial proceedings had been deleted from UBS’s email system and were only accessible on backup tapes. The plaintiff then sought an order requiring UBS to pay for the total costs of restoring the remaining backup tapes and also sought an adverse inference instruction against UBS and the costs for re-deposing some individuals required because of the destruction of evidence.

In October 2003, Judge Scheindlin found that the defendant had a duty to preserve evidence since it should have known that it would be relevant for future litigation. However, at the time, she concluded that the plaintiff failed to demonstrate that the lost evidence supported the adverse inference instruction claim. But, she did order the defendant to cover the costs as claimed by the plaintiff.

Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004) (Zubulake V)

In July 2004, Judge Scheindlin ruled that UBS had failed to take all necessary steps to guarantee that relevant data was both preserved and produced, and granted the plaintiff’s motion for adverse inference instruction sanctions, sought in Zubulake IV, due to the deleted evidence (emails and tapes) and inability to recover key documents during the course of the case.

The court also indicated that defense counsel was partly to blame for the document destruction because it had failed in its duty to locate and preserve relevant information. In addressing the role of counsel in litigation, the court stated that “[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched” by ensuring all relevant documents are discovered, retained, and produced and that litigators must guarantee that relevant documents are preserved by instituting a litigation hold on key data, and safeguarding archival media.

In the final instructions to the jury Judge Scheindlin instructed in part, “[i]f you find that UBS could have produced this evidence, the evidence was within its control, and the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would have been unfavorable to UBS.” In addition, monetary sanctions were awarded to the plaintiff for reimbursement of costs of additional re-depositions and of the motion leading to this opinion, including attorney fees. The jury found in the plaintiff’s favor on both claims awarding compensatory and punitive awards totaling $29.2 million.

Judge Scheindlin’s opinions in Zubulake, including definitions of accessible and inaccessible data, the seven factor balance test for cost shifting and definition of counsel’s obligation for preserving data, have been referenced in numerous cases since and have provided guidance to organizations preparing for litigation. For any of you who may not have fully understood the significance of the case, I hope this look back was helpful.

So, what do you think? Did you learn something new about Zubulake? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases

December 1, 2011

Since eDiscovery Daily debuted over 14 months ago, we’ve covered a lot of case law decisions related to eDiscovery. 65 posts related to case law to date, in fact. We’ve covered cases associated with sanctions related to failure to preserve data, issues associated with incomplete collections, inadequate searching methodologies, and inadvertent disclosures of privileged documents, among other things. We’ve noted that 80% of the costs associated with eDiscovery are in the Review phase and that volume of data and sources from which to retrieve it (including social media and “cloud” repositories) are growing exponentially. Most of the “press” associated with eDiscovery ranges from the “left side of the EDRM model” (i.e., Information Management, Identification, Preservation, Collection) through the stages to prepare materials for production (i.e., Processing, Review and Analysis).

All of those phases lead to one inevitable stage in eDiscovery: Production. Yet, few people talk about the actual production step. If Preservation, Collection and Review are the “John”, “Paul” and “George” of the eDiscovery process, Production is “Ringo”.

It’s the final crucial step in the process, and if it’s not handled correctly, all of the due diligence spent in the earlier phases could mean nothing. So, it’s important to plan for production up front and to apply a number of quality control (QC) checks to the actual production set to ensure that the production process goes as smooth as possible.

Planning for Production Up Front

When discussing the production requirements with opposing counsel, it’s important to ensure that those requirements make sense, not only from a legal standpoint, but a technical standpoint as well. Involve support and IT personnel in the process of deciding those parameters as they will be the people who have to meet them. Issues to be addressed include, but not limited to:

Format of production (e.g., paper, images or native files);
Organization of files (e.g., organized by custodian, legal issue, etc.);
Numbering scheme (e.g., Bates labels for images, sequential file names for native files);
Handling of confidential and privileged documents, including log requirements and stamps to be applied;
Handling of redactions;
Format and content of production log;
Production media (e.g., CD, DVD, portable hard drive, FTP, etc.).

I was involved in a case recently where opposing counsel was requesting an unusual production format where the names of the files would be the subject line of the emails being produced (for example, “Re: Completed Contract, dated 12/01/2011”). Two issues with that approach: 1) The proposed format only addressed emails, and 2) Windows file names don’t support certain characters, such as colons (:) or slashes (/). I provided that feedback to the attorneys so that they could address with opposing counsel and hopefully agree on a revised format that made more sense. So, let the tech folks confirm the feasibility of the production parameters.

The workflow throughout the eDiscovery process should also keep in mind the end goal of meeting the agreed upon production requirements. For example, if you’re producing native files with metadata, you may need to take appropriate steps to keep the metadata intact during the collection and review process so that the metadata is not inadvertently changed. For some file types, metadata is changed merely by opening the file, so it may be necessary to collect the files in a forensically sound manner and conduct review using copies of the files to keep the originals intact.

Tomorrow, we will talk about preparing the production set and performing QC checks to ensure that the ESI being produced to the requesting party is complete and accurate.

So, what do you think? Have you had issues with production planning in your cases? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Potential ESI Sources Abound in Penn State Case

November 22, 2011

Whether you’re a college football fan or not, chances are you’ve heard about the scandal associated with the allegations of serial child abuse by former Penn State football coach Jerry Sandusky. There seems to be new developments almost daily and the scandal has already cost the jobs of the university president, vice president, athletic director and the head football coach, Joe Paterno, who had been head coach since 1965 and on the coaching staff since 1950 (most of us weren’t even born yet!). Numerous lawsuits seem highly likely to arise as a result of the alleged abuse against a variety of defendants, including the university, individuals alleged to be involved in the abuse and cover-up and also the Second Mile Foundation founded by Sandusky.

Seth Row, an attorney with Parsons Farnell & Grein LLP in Portland (OR), has written an article published in the Association of Certified eDiscovery Specialists (ACEDS) web site providing a detailing of potential sources of ESI that may be relevant in the case. The article illustrates the wide variety of sources that might be responsive to the litigation. Here are some of the sources cited by Row:

Videotape of entry and exit from the athletic facilities at Penn State, to which Paterno gave Sandusky access after the latter resigned in 1999;
Entry/exit logs, which are likely housed in a database if keycards were used, for the Lasch Football Building, where abuse was allegedly witnessed
Phone records of incoming and outgoing calls;
Electronic rosters of football players, coaches, staff, student interns, and volunteers affiliated with the Penn State football program over time;
The personal records of these individuals, including telephone logs, internet search histories, email accounts, medical and financial records, and related information created over time;
University listservs;
Internet forums – a New York Times article reported last week that a critical break in the investigation came via a posting on the Internet, mentioning that a Penn State football coach might have seen something ugly, but kept silent;
Maintenance logs maintained by the two custodial employees who allegedly witnessed abuse;
Identities of all media beat reporters who covered the Penn State football team;
Passenger and crew manifests for all chartered flights of the Penn State football team in which Sandusky was a passenger;
Sandusky’s credit card records to document meals and outings where he may have been accompanied by victims, and records of gifts he purchased for them;
All records of the Second Mile Foundation identifying boys who participated in its programs, as well as the names of donors and officers, directors and staff;
Paper record equivalents of this ESI that were produced in the 1990s before electronic recordkeeping became prevalent;
All electronic storage and computing devices owned or maintained by Sandusky, Paterno and other central figures in the scandal, including cell phones, personal computers, tablet computers, flash drives, and related hardware.

With such a wide variation of potential custodians and time frames, it will be difficult to quickly narrow down the potential ESI sources. As the author points out, it seems likely that Penn State has already locked down its records retention policies throughout the university. They certainly would seem to have a reasonable expectation of litigation. Investigators and attorneys will likely be racing against time to identify as many other parties as possible with potentially responsive ESI.

So, what do you think? Have you been involved in litigation with such a wide distribution of potentially responsive ESI? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Data Mapping Doesn’t Have to be Complicated

November 18, 2011

Some time ago, we talked about the importance of preparing a data map of your organization’s data to be ready when litigation strikes.

Back then, we talked about four steps to create and maintain an effective data map, including:

Obtaining early “buy-in” with various departments throughout the organization;
Document and educate to develop logical and comprehensive practices for managing data;
Communicate regularly so that new data stores (or changes to existing ones) can be addressed as they occur;
Update periodically to keep up with changes in technology that create new data sources.

The data map itself doesn’t have to be complicated. It can be as simple as a spreadsheet (or series of spreadsheets, one for each department or custodian, depending on what level of information is likely to be requested). Here are examples of types of information that you might see in a typical data map spreadsheet:

Type of Data: Prepare a list and continue to add to it to ensure all of the types or data are considered. These can include email, work product documents, voice mail, databases, web site, social media content, hard copy documents, and any other type of data in use within your organization.
Department/Custodian: A data map is no good unless you identify the department or custodian responsible for the data. Some of these may be kept by IT (e.g., Exchange servers for the entire organization) while others could be down to the individual level (e.g., Access databases kept on an individual’s laptop).
Storage Classification: The method(s) by which the data is stored by the department or custodian is important to track. You’ll typically have Online, Nearline, Offline and Inaccessible Data. A type of data can apply to multiple or even all storage classifications. For example, email can be stored Online in Exchange servers, Nearline in an email archiving system, Offline in backup tapes and Inaccessible in a legacy format. Therefore, you’ll need a column in your spreadsheet for each storage classification.
Retention Policy: Track the normal retention policy for each type of data stored by each department of custodian (e.g., retain email for 5 years). While a spreadsheet won’t automatically identify when specific data is “expired”, a regular process of looking for data older than the retention time period will enable your organization to purge “expired” data.
Litigation Hold Applied: Unless of course, that data is subject to an active litigation hold. If so, you’ll want to identify the case(s) for which the hold is applied and be prepared to update to remove those cases from the list once the hold obligation is released. If all holds are released on normally “expired” data and no additional hold obligations are expected, that may be the opportunity to purge that data.
Last Update Date: It’s always a good idea to keep track of when the information in the data map was last updated. If it’s been a while since that last update, it might be time to coordinate with that department or custodian to bring their portion of the data map current.

As you see, a fairly simple 9 or 10 column spreadsheet might be all you need to start gathering information about the data stores in your organization.

So, what do you think? Has your organization implemented a data mapping program? If not, why not? 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

September 2, 2011

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!