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Information Governance

eDiscovery Trends: Interview with Laura Zubulake of Zubulake’s e-Discovery
 

Last week, we discussed the new book by Laura A. Zubulake, the plaintiff in probably most famous eDiscovery case ever (Zubulake vs. UBS Warburg), entitled Zubulake's e-Discovery: The Untold Story of my Quest for Justice.  I also conducted an interview with Laura last week to get her perspective on the book, including her reasons for writing the book seven years after the case ended and what she expects readers to learn from her story.

The book 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.  The book is available at Amazon and also at CreateSpace.

Our interview with Laura had so much good information in it, we couldn’t fit it all into a single post.  So, today is part 1.  Part 2 will be published in the blog tomorrow!

Why did you decide to write the book at this time, seven years after the case was decided?

Actually, I’ve been working on the book for several years and I think it got to the point where I decided either I publish or I don’t publish.  It’s been a work-in-progress for some time and took me longer than I would have expected or liked, but it finally came together.  I probably started it a couple of years after everything was finalized, so it has taken from that point until now to complete it and get it to the point where it is now that I was happy with the results.

What do you expect that those who are familiar with the Zubulake opinions to get out of the book?

Number one, I think it’s really important to note that it’s from the plaintiff’s perspective.  What I find is that most of what you read about in the industry and hear at eDiscovery and legal conferences discuss topics from a defense standpoint.  Most are either a consultant to a defendant or an attorney representing a defendant and I find that the plaintiff’s voice is rarely heard.  And, I felt that I saw things differently from not only the defendant but also my attorneys from time to time because it was my case, I was taking the risks and I had a lot at stake.  So, I think hearing from the plaintiff not just about going through the motions filed and oral arguments and all that but also about life at home and what it’s like dealing with the day-to-day stresses as a plaintiff in a case that lasts three years.  I wanted people to appreciate the difficulty of it. I’m sure most people would assume it’s difficult, but I’m not sure how much people understand about the isolation and how going through litigation can be a lonely place. I write about that in the book.

Number two, a lot has been written about the Zubulake opinions.  Most of it is accurate, but not all of it.  I thought some of the things that were not accurate should be clarified because they were important.  Like, for instance, the role that the adverse inference instruction apparently played to the jury.  I only learned about its role in the verdict during post trial discussions.  Whenever I mention that observation to people, they find that interesting.  I think there are events throughout the litigation that people might learn that what they read in the press is not necessarily 100% accurate.

Also, I think that eDiscovery is still an issue for a lot of medium sized corporations (and probably large corporations, as well).  I think hearing from someone who went through the process would be valuable to them, especially when you consider that I did so without the aid of legal guidelines because there were very few guidelines at the time as I mentioned and also very little technology available.  I had to do it from a very basic standpoint.  So, when you learn anything, it’s really good to learn it from the foundation, from the basics.  From that, you can apply technology and strategies that have been developed over the years.  So, I’m hoping that everybody who reads it will learn something from my experience.

What do you expect that those who are unfamiliar with, or don’t understand the significance of, the Zubulake opinions to get out of the book?

Well, it’s difficult to write a book. When I wrote my first book several years ago about convertible securities, that was what I did for a living and I knew them very well.  I lived this case, so, clearly, I knew it very well.  The problem you have as a writer is not assuming that the reader knows what you know.  So, I tried to write it as clearly as possible and some who are experts in eDiscovery may not find the book to be technical enough, but that was intentional as my goal was to try to appeal to as broad an audience as possible.  That’s always difficult, but that was my goal.  I hope readers learn about the significance of the opinions, learn about the changes in law, and appreciate the plaintiff's viewpoint.

To the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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

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.

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

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.

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 Best Practices: Documentation is Key to a Successful Discovery Effort
 

We like to point out good articles about eDiscovery on this blog to keep our readers aware of trends and best practices.  I recently read an article on InsideCounsel titled E-discovery: Memorializing the e-discovery process, written by Alvin Lindsay, which had some good specific examples of where good documentation is important to prevent sanctions and save litigation costs.

Litigation Holds

The author notes that, since the Zubulake opinions issued by Judge Shira Scheindlin in 2003 and 2004, 1) most jurisdictions have come to expect that parties must issue a litigation hold “as soon as litigation becomes reasonably foreseeable”, and 2) “oral” litigation holds are unlikely to be sufficient since the same Judge Scheindlin noted in Pension Committee that failure to issue a “written” litigation hold constitutes “gross negligence”.  His advice: “make sure the litigation hold is in writing, and includes at minimum the date of issue, the recipients and the scope of preservation”.  IT personnel responsible for deleting “expired” data (outside of retention policies) also need to receive litigation hold documentation; in fact, “it can be a good idea to provide a separate written notice order just for them”.  Re-issuing the hold notices periodically is important because, well, people forget if they’re not reminded.  For previous posts on the subject of litigation holds, click here and here.

Retention Policies and Data Maps

Among the considerations for documentation here are the actual retention and destruction policies, system-wide backup procedures and “actual (as opposed to theoretical) implementation of the firm’s recycle policy”, as well as documentation of discussions with any personnel regarding same.  A data map provides a guide for legal and IT to the location of data throughout the company and important information about that data, such as the business units, processes and technology responsible for maintaining the data, as well as retention periods for that data.  The author notes that many organizations “don’t keep data maps in the ordinary course of business, so outside counsel may have to create one to truly understand their client’s data retention architecture.”  Creating a data map is impossible for outside counsel without involvement and assistance at several levels within the organization, so it’s truly a group effort and best done before litigation strikes.  For previous posts on the subject of data maps, click here and here.

Conferences with Opposing Counsel

The author discusses the importance of documenting the nature and scope of preservation and production and sums up the importance quite effectively by stating: “If opposing parties who are made aware of limitations early on do not object in a timely fashion to what a producing party says it will do, courts will be more likely to invoke the doctrines of waiver and estoppel when those same parties come to complain of supposed production infirmities on the eve of trial.”  So, the benefits of documenting those limitations early on are clear.

Collecting, Culling and Sampling

Chain of custody documentation (as well as a through written explanation of the collection process) is important to demonstrating integrity of the data being collected.  If you collect at a broad level (as many do), then you need to cull through effective searching to identify potentially responsive ESI.  Documenting the approach for searching as well as the searches themselves is key to a defensible searching and culling process (it helps when you use an application, like FirstPass®, powered by Venio FPR™, that keeps a history of all searches performed).  As we’ve noted before, sampling enables effective testing and refinement of searches and aids in the defense of the overall search approach.

Quality Control

And, of course, documenting all materials and mechanisms used to provide quality assurance and control (such as “materials provided to and used to train the document reviewers, as well as the results of QC checks for each reviewer”) make it easier to defend your approach and even “clawback” privileged documents if you can show that your approach was sound.  Mistakes happen, even with the best of approaches.

So, what do you think?  These are some examples of important documentation of the eDiscovery process – can you think of others?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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.

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 Trends: Wednesday LTWC 2012 Sessions
 

As noted yesterday, LegalTech West Coast 2012 (LTWC) is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the Los Angeles area with a number of sessions (both paid and free) available and 69 exhibitors providing information on their products and services, including (shameless plug warning!) my company, CloudNine Discovery, which just announced yesterday release of Version 11 of our linear review application, OnDemand®, and will be exhibiting at booth #216 along with our partners, First Digital Solutions.  Come by and say hi!

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 21 hits.  More eDiscovery sessions happening!  Here are some of the sessions in the main conference tracks:

10:30 – 12:00 AM:

Information Governance and Information Management

With the volume of electronically stored information (ESI) growing exponentially and the challenges surrounding managing it, protecting it, and developing effective policies are essential. Social media, email, IMs, web pages, mobile devices and the cloud have made a big job even bigger. How much or how little should you collect? How aggressive should you be? How can you be certain your approach and results are defensible?

Speakers are: Richard E. Davis, JD, e-Discovery Solutions Architect & Founder, Litigation Logistics, LLC; Jack Halprin, Head of eDiscovery, Google; Dawson Horn, III, Senior Litigation Counsel, Tyco International and David Yerich, Director, eDiscovery, UHG Legal Department, United Health Group.

The GARP® Principles and eDiscovery

Attendees will hear from experts on the GARP Principles and eDiscovery as well as:

  • Understand the importance of proactive records management through the eight GARP® Principles
  • Revisit the GARP® Principles and learn how their role is magnified by recent case law
  • Learn what to do before eDiscovery: how GARP® precedes and complements the EDRM

Speakers are: Gordon J. Calhoun, Esq., Lewis Brisbois Bisgaard &, Smith LLP; Lorrie DeCoursey, Former Law Firm Administrator and John J. Isaza, Esq., Partner, Rimon P.C.  Moderator: David Baskin, Vice President of Product Management, Recommind.

1:30 – 3:00 PM:

Practical Handbook for Conducting International eDiscovery – Tips and Tricks

This session will present a truly international view on how to conduct global eDiscovery from a practical perspective, including developing proactive global document retention policies and assuring multi-jurisdictional compliance, best practices of global data preservation and collection, successful data migration across jurisdictions, navigating unique cultural and procedural challenges in various global regions, handling multi-lingual data sets as well as strategic positioning of hosting data centers.

Speakers are: Monique Altheim, Esq., CIPP, The Law Office of Monique Altheim; George I. Rudoy, Founder & CEO, Integrated Legal Technology, LLC and David Yerich, Director, eDiscovery, UHG Legal Department, United Health Group.

Litigation Preparedness Through Effective Data Governance

Be prepared. This panel will go through the benefits of data governance in your litigation preparedness and discuss benefits such as:

  • Auto-classification of legacy and newly created content
  • What is email management and is it ready for prime-time?
  • Review the court's findings on the complexities of ESI, including metadata, native formats, back-up tapes, mobile devices, and legacy technology
  • Key questions to ask before outsourcing ESI to the cloud

Speakers are: Lorrie DeCoursey, Former Law Firm Administrator; John J. Isaza, Esq., Partner, Rimon P.C. and Ayelette Robinson, Director – Knowledge Technology, Littler Mendelson.  Moderator: Derek Schueren, GM, Information Access and Governance, Recommind.

3:30 – 5:00 PM:

Managed and Accelerated Review

As costs for review soar and volumes of data multiply at an almost exponential rate, traditional linear review seems to be giving way to new technologies that will enable faster, better, more defensible eDiscovery results. How can you be assured that this new approach will catch everything that needs to be captured? Will human review become obsolete? What do you need to ask when considering this new technology? How should it be incorporated into your overall litigation strategy?

Speakers are: Matthew Miller, Manager, Fraud Investigation & Dispute Services, Ernst & Young; Robert Miller, Founder, Rise Advisory Group, LLC; Former Discovery Counsel, BP; David Sun, Discovery Project Manager, Google.

eDiscovery Circa 2015: Will Aggressive Preservation/Collection and Predictive Coding be Commonplace?

Who's holding back on Predictive Coding, clients or outside counsel? This session will discuss if aggressive preservation/collection of predictive coding will become commonplace as well as:

  • How aggressive should clients be with preservation/collection?
  • How to use effective searching, sampling, and targeting tools and techniques to not over-collect

Speakers are: Gordon J. Calhoun, Esq., Lewis Brisbois Bisgaard &, Smith LLP; Lorrie DeCoursey, Former Law Firm Administrator and Greg Chan, Senior Regional Litigation Technology Manager, Bingham McCutchen LLP.  Moderator: David Baskin, Vice President of Product Management, Recommind.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

So, what do you think?  Are you planning to attend LTWC this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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 Trends: Deidre Paknad on CGOC’s Information Lifecycle Governance Leader Reference Guide
 

Yesterday, we talked about the Information Lifecycle Governance Leader Reference Guide from the Compliance, Governance and Oversight Council (CGOC).  The guide provides a program for operationalizing an effective defensive disposal program for expired data, which is an increasingly important issue for many organizations as organizational data doubles every 18-24 months.

Deidre Paknad, Director of Information Lifecycle Governance (ILG) Solutions for IBM, is a well-known thought leader in the legal and information governance domain and one of the authors of the guide, as well as the founder of CGOC (and also a previous thought leader interviewee on this blog).  Deidre has also been a member of several Sedona Conference working groups since 2005 and has co-chaired the EDRM IGRM project since 2010.  I recently interviewed Deidre and asked her some questions regarding the goals for the guide, the target audience and how it fits in with other information governance initiatives in the industry.

Who is the target audience for this guide in terms of job functions and/or size of organization?

The guide is for companies and their Information Governance leaders who are looking to transform legal, records and IT practices to drive substantial cost savings and risk reduction.  It is for business leaders or stakeholders such as the Chief Information Officer (CIO), General Counsel (GC) and records managers who are looking for program models to define, operationalize and improve processes that enable defensible disposal of unnecessary data. The goal is to curb storage growth and lower costs associated with IT, eDiscovery and processing, to not only save money but also lower organizational risk going forward. Based on insight from 1700+ CGOC corporate practitioners, it is apparent that organizations with extensive preservation requirements due to litigation and regulation requirements who retain large amounts of data are in need of such a leadership guide.

Are there any success stories or examples of organizations using the principles described in this guide that you can provide?

Yes. We just had a very successful summit in February with more than 100 corporate practitioners (the proceedings documentation from the CGOC web site are available here).  Anthony Perkins of BNY Mellon provided the keynote speech regarding the high cost of information and how IT organizations are responding.  BNY Mellon and several others are setting new benchmarks and advancing ILG practices for defensible disposal that have become strategic enterprise initiatives.  Scott Bancroft of Novartis International also shared their experience in how they structured an effective governance program.  In the panel discussion, practitioners (such as Jason R. Baron of the National Archives and Records Administration, Eckhard Herych of Novartis and Mark Tabs and Thomas Zingale of UBS) shared their own experience and leadership on assessing process maturity to drive process improvement.  From those proceedings, you can see how Legal, RIM, IT and program office leaders (i.e., members of our target audience) share their experience to modernize their practices and collectively transform their enterprise processes for cost saving and risk reduction.

As this guide references the Information Governance Reference Model (IGRM) – which, of course, is a part of the Electronic Discovery Reference Model (EDRM) – how does this guide and the efforts of CGOC fit in with the EDRM-ARMA initiative?

We established CGOC in 2004 and it has grown to a community of over 1700 experts in retention, legal holds, discovery, and privacy exclusively for corporate practitioners. Its charter is to create a forum in which Legal, IT, RIM, Privacy and compliance executives can get the insight, interaction, and information they need to make good business decisions. CGOC fills the critical practitioners’ gap between ARMA and The Sedona Conference, providing the ability to move from theory to efficient practices. CGOC also provides educational seminars, benchmarking surveys, group workshops, an annual Summit and retreat, white papers by expert faculty, a professional networking website, and regional working groups to corporate litigation, discovery, privacy, records management and program office leaders and practitioners.  Membership in the forum is free to qualified executives.

What are your expectations/goals/hopes that you envision for how the guide is used and adopted?

In the fall of 2010, CGOC issued its Information Governance Benchmark Report, which presented findings from their first survey of legal, records management (RIM) and IT practitioners in Global 1000 companies. The report confirmed that CGOC members viewed defensible disposal as the most essential outcome of a good governance program  but revealed challenges with funding and cross organizational cooperation that impeded program launch or effectiveness. The ILG Guide now simply provides members with a construct for how to operationalize an effective program and overcome these barriers. By leveraging the guide, program leaders can clearly see the sixteen processes to coalesce Legal, RIM, Business, Privacy and IT processes to lower cost and risk. The impacts to the enterprise (and resulting costs) are high when legal, records and IT don't work in concert, and the cost of doing nothing is even higher.  Organizations can improve information economics by operationalizing their information lifecycle governance program using this guide, resulting in significant cost savings and reduced risk going forward.  We are excited to be able to provide such a guide to our member organizations.

Thanks, Deidre, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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 Trends: CGOC’s Information Lifecycle Governance Leader Reference Guide

With all of the recent attention on technology-assisted review and current case law related to that subject, it’s sometimes easy to forget that most sanctions are issued because of failure to preserve potentially responsive data.  A sound Information Governance (aka Records Management) policy is the first step to enabling organizations to meet their preservation obligations by getting control of the data up front.  Organizations such as EDRM and ARMA have focused on Information Governance and have even collaborated on a January report on Information Governance.  Another organization focused on Information Governance is the Compliance, Governance and Oversight Council (CGOC).  In the fall of 2010, CGOC issued its Information Governance Benchmark Report, which presented findings from their first survey of legal, records management (RIM) and IT practitioners in Global 1000 companies.  Recently, CGOC developed a new guide for helping organizations with succeed in improving information and eDiscovery economics.

For most organizations, information volume doubles every 18-24 months and 90% of the data in the world has been created in the last two years. In a typical company in 2011, storing that data consumed about 10% of the IT budget. At a growth rate of 40% (even as storage unit costs decline), storing this data will consume over 20% of the typical IT budget by 2014.  Accumulating, storing and litigating data without value is simply no longer an economically viable proposition.  The 36 page Information Lifecycle Governance Leader Reference Guide (written by Deidre Paknad and Rani Hublou) provides a program for operationalizing an eff­ective defensive disposal program for expired data and overcome the barriers to do so.  It can be downloaded here from the CGOC site (if you don’t have a user account, you’ll have to create one, but it’s free).  The guide shows how to:

  • Define the economic and business objectives of an information governance program to quantify savings and ensure appropriate funding for change;
  • Establish a program strategy;
  • Structure an organization that aligns functional silos to ensure savings and business objectives are achieved;
  • Identify and improve the business processes for defensible disposal and risk reduction; and
  • Audit these processes to ensure systemic, sustainable change.

Aside from the Introduction and Conclusion, the guide is divided into five parts, as follows:

  • Defining Program Strategy: The focus is simple – to dispose of unnecessary data and keep only the data that has business utility or is subject to legal hold or regulatory record keeping requirements.
  • Setting Quantifiable Cost and Risk Reduction Goals: Setting goals with primary focus on how to lower storage and infrastructure costs from defensible disposal, lower risk through improved governance instrumentation and lower eDiscovery costs through governance instrumentation and lower enterprise data volume.  This section provides a particularly useful eDiscovery Cost Reduction section (page 13) that demonstrates the potential cost savings due to defensible disposal of unnecessary data and a Risk Reduction section (page 14) that provides a risk matrix to assess the risk level of each data process.
  • Operationalizing the Strategy: Putting the plan into place involves defining business objectives for the program and means for measuring achievement, defining processes and practices to achieve the objectives, establish accountability for outcomes and defining staff and instrumentation required to work the plan.
  • Program Leadership: For any program to be successful, you need buy in at the top.  That includes an Executive Committee (including the CIO, CFO, General Counsel), a Senior Advisory Group comprised of line of business leaders (division executives) to provide the staff­ and support needed to achieve the defined goals, a plan for achievement measurement and accountability and an execution timeline.
  • Process Maturity and Management: Each process should be assessed as to its level of maturity (from Level 1-ad hoc to Level 4-automated and cross-functional).  The effort required in each department to achieve the objectives should be clearly mapped out and an audit process should be established for confirming that the governance programs meet objectives and raising issues when there are issues.

All in all, the guide provides an excellent approach for organizations to address implementation of an information lifecycle governance program and illustrates the benefits and cost savings for doing so.  With organizational data doubling every 18-24 months, information governance costs for many organizations will skyrocket without an effective plan to manage the explosion of data.

So, what do you think?  Has your organization implemented an effective information governance program?  Does it have any of the components outlined in the CGOC guide?  Please share any comments you might have or if you’d like to know more about a particular topic.

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 Trends: Three Years Later, “Deleted” Facebook Photos Still Online
 

So, that’s why they call it “Facebook”.  Because the “faces” never leave!  Ba-dum-bah!  Hey, I’m in town all week!

Thanks to the Technologist for this article, by way of Ars Technica.  If you have deleted any of your photos from Facebook in the past three years, you may be surprised to find that they are probably still on the company’s servers.

Facebook is still trying to provide timely deletion of photos from its servers nearly three years after Ars Technica first raised the issue. Admitting that its older systems for storing uploaded content "did not always delete images from content delivery networks in a reasonable period of time even though they were immediately removed from the site," Facebook recently stated that it's currently completing a newer system that will effectively delete photos within 45 days of the removal request. Until then, photos that users thought they "deleted" from the social network months or even years ago remain accessible via direct link.

Facebook has addressed this issue in its Statement of Rights and Responsibilities, as follows: “when you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).”

Not available to others unless they know the direct link to that content, apparently.

As author (from Ars Technica) Jacqui Cheng notes, “There were plenty of stories in between as well, and panicked Facebook users continue to e-mail me, asking if we have heard of any new way to ensure that their deleted photos are, well, deleted. For example, one reader linked me to a photo that a friend of his had posted of his toddler crawling naked on the lawn. He asked his friend to take it down for obvious reasons, and so the friend did—in May of 2008. As of this writing in 2012, I have personally confirmed that the photo is still online, as are several others that readers linked me to that were deleted at various points in 2009 and 2010.”  However, she noted that Facebook did delete her pictures after she did a story in 2010.

Needless to say, as discovery requests for Facebook content continue to increase (such as cases here, here, here, here and here illustrate), this could be discoverable ESI as long as that information is out there.  For attorneys that are contemplating requesting data from Facebook, it may be important to familiarize themselves with Facebook’s Law Enforcement page on how to request that information.  Apparently, just because the opposing party can no longer access that information doesn’t mean it’s not still available.

So, what do you think?  Are you surprised at how Facebook has been handling deletions?  Are you worried that some of your deleted data might still be out there?  Please share any comments you might have or if you’d like to know more about a particular topic.

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 Daily Is Eighteen! (Months Old, That Is)
 

Eighteen months ago yesterday, eDiscovery Daily was launched.  A lot has happened in the industry in eighteen months.  We thought we might be crazy to commit to a daily blog each business day.  We may be crazy indeed, but we still haven’t missed a business day yet.

The eDiscovery industry has grown quite a bit over the past eighteen months and is expected to continue to do so.   So, there has not been a shortage of topics to address; instead, the challenge has been selecting which topics to address.

Thanks for noticing us!  We’ve more than doubled our readership since the first six month period, had two of our biggest “hit count” days in the last month and have more than quintupled our subscriber base since those first six months!  We appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Atkinson-Baker (depo.com), Litigation Support Technology & News, Next Generation eDiscovery Law & Tech Blog, InfoGovernance Engagement Area, Justia Blawg Search, Learn About E-Discovery, Ride the Lightning, Litigation Support Blog.com, ABA Journal, Law.com and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As we’ve done in the past, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

eDiscovery Trends: Is Email Still the Most Common Form of Requested ESI?

eDiscovery Trends: Sedona Conference Provides Guidance for Judges

eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth

eDiscovery Law: Model Order Proposes to Limit eDiscovery in Patent Cases

eDiscovery Case Law: Court Rules 'Circumstantial Evidence' Must Support Authorship of Text Messages for Admissibility

eDiscovery Best Practices: Cluster Documents for More Effective Review

eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?

eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone

eDiscovery Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win

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

eDiscovery Case Law: Court Grants Adverse Inference Sanctions Against BOTH Sides

eDiscovery Trends: ARMA International and EDRM Jointly Release Information Governance White Paper

eDiscovery Trends: The Sedona Conference International Principles

eDiscovery Trends: Sampling within eDiscovery Software

eDiscovery Trends: Small Cases Need Love Too!

eDiscovery Case Law: Court Rules Exact Search Terms Are Limited

eDiscovery Trends: DOJ Criminal Attorneys Now Have Their Own eDiscovery Protocols

eDiscovery Best Practices: Perspective on the Amount of Data Contained in 1 Gigabyte

eDiscovery Case Law: Computer Assisted Review Approved by Judge Peck in New York Case

eDiscovery Case Law: Not So Fast on Computer Assisted Review

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.