Information Management

eDiscovery Trends: Christine Musil of Informative Graphics Corporation (IGC)

 

This is the fourth of the LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and asked each of them the same three questions:

  1. What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?
  2. Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Christine Musil.  Christine has a diverse career in engineering and marketing spanning 15 years. Christine has been with IGC since March 1996, when she started as a technical writer and a quality assurance engineer. After moving to marketing in 2001, she has applied her in-depth knowledge of IGC's products and benefits to marketing initiatives, including branding, overall messaging, and public relations. She has also been a contributing author to a number of publications on archiving formats, redaction, and viewing technology in the enterprise.

What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?

For us, the biggest trend is elevation of the importance of eDiscovery, from what happens the minute you find out you have a lawsuit until the end of the case.  There’s a lot more discussion about how you can prevent it, how you can be better prepared, and I think that’s where the new buzzword, information governance, comes in.  We partner with OpenText and we partner with EMC on their content management side and we definitely see them pushing into the eDiscovery market to provide an end-to-end solution and stop trying to treat eDiscovery as an isolated issue. I think that the elevation of eDiscovery and inclusion of eDiscovery more into the regular business workflow of an organization is a pretty significant trend to watch.

Another trend that I see is an elevation of the use of search and how people can get more out of their searches to save time and cost.  This may be somewhat skewed based on our perspective in the market, but we’ve had a lot of requests for our redaction software to pick up the search that has already been done. Providers work so hard to come up with amazingly complicated algorithms to find data.  Why reinvent the wheel?  The companies all ask why all the other vendors can’t just take those search results and use it. 

Since you’ve written a white paper about native review and redaction, where do you see that heading?  Well, I hope that people will stop printing things out, scanning it back in to TIFF, then OCRing it and handing everybody back a disk of flat images and a separate disk with OCR text.  I sort of understand why they do it, but I think a less paranoid or adversarial approach through more effective “meet and confer” agreements on how you are going to present things are going to make it so much easier for everybody.  I hope in three to five years people say “I’m not afraid to hand you my native files because I know how to check them and know what metadata they contain and whether there are any tracked changes or other potential issues”.  So, the paranoia and fear that people have about the unknown that they can’t see in their documents and whether there is a smoking gun in there should die down.  I think people are getting smarter – now that they’re not producing paper – as to what  electronic files contain.  Hopefully, they will understand that native format is OK and when they need to redact, it’s OK to use PDF format to do so.  You tell the other side what you’re doing and what they’re going to get and it becomes a more open and well understood process.

I’m also on the EDRM XML committee and hope a standard load file format that transmits data seamlessly from one side to the other and contains all the information about what has been redacted, among other things, will make things easier on everybody, getting information through the process more seamlessly.  We’re writing white papers about the data set to educate the vendors on how to use it and I have high hopes for what we will be able to accomplish there.

Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?

{Interviewed on the first morning of LTNY}  Well, that’s hard since LegalTech just started [smiles].  I can tell you that in discussions with some of our partners, we’re seeing more support for mobile devices, support for the iPad, etc., to help lawyers work wherever they are and be more efficient wherever they are.  And, I think that literally goes all the way to the courtroom.  So, you’re seeing support for more devices and smaller screens, wherever attorneys get information.

What are you working on that you’d like our readers to know about?

I’m moderating a panel discussion {at LegalTech} titled, The Debate on Native Format Production and Redaction, which includes Craig Ball, George Socha, Tom O’Connor and Browning Marean.  I wrote a white paper last year entitled The Reality of Native Format Production and Redaction, which has inspired this panel discussion here at LegalTech.  So, that should be informative and interesting.  We’ve noticed that there’s just an awful lot of confusion in terms of what’s really required and what’s acceptable and the white paper and panel discussion really speaks to that.  We’re trying to educate our customers and help our partners educate their clients.

The other thing we’re announcing here is the release of integration to OpenText eDOCS.  We’ve been partners with OpenText for content management since 2002 and are very excited to extend our partnership to include this new area. eDOCS has a great presence in the legal space and we look forward to working with them.

Thanks, Christine, 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!

eDiscovery Trends: Jim McGann of Index Engines

 

This is the third of the LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and asked each of them the same three questions:

  1. What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?
  2. Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Jim McGann.  Jim is Vice President of Information Discovery at Index Engines.  Jim has extensive experience with the eDiscovery and Information Management in the Fortune 2000 sector. He has worked for leading software firms, including Information Builders and the French-based engineering software provider Dassault Systemes.  In recent years he has worked for technology-based start-ups that provided financial services and information management solutions.

What do you consider to be the current significant trends in eDiscovery on which people in the industry are, or should be, focused?

What we’re seeing is that companies are becoming a bit more proactive.  Over the past few years we’ve seen companies that have simply been reacting to litigation and it’s been a very painful process because ESI collection has been a “fire drill” – a very last minute operation.  Not because lawyers have waited and waited, but because the data collection process has been slow, complex and overly expensive.  But things are changing. Companies are seeing that eDiscovery is here to stay, ESI collection is not going away and the argument of saying that it’s too complex or expensive for us to collect is not holding water. So, companies are starting to take a proactive stance on ESI collection and understanding their data assets proactively.  We’re talking to companies that are not specifically responding to litigation; instead, they’re building a defensible policy that they can apply to their data sources and make data available on demand as needed.    

Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?

{Interviewed on the first morning of LTNY}  Well, in walking the floor as people were setting up, you saw a lot of early case assessment last year; this year you’re seeing a lot of information governance..  That’s showing that eDiscovery is really rolling into the records management/information governance area.  On the CIO and General Counsel level, information governance is getting a lot of exposure and there’s a lot of technology that can solve the problems.  Litigation support’s role will be to help the executives understand the available technology and how it applies to information governance and records management initiatives.  You’ll see more information governance messaging, which is really a higher level records management message.

As for other trends, one that I’ll tie Index Engines into is ESI collection and pricing.  Per GB pricing is going down as the volume of data is going up.  Years ago, prices were a thousand per GB, then hundreds of dollars per GB, etc.  Now the cost is close to tens of dollars per GB. To really manage large volumes of data more cost-effectively, the collection price had to become more affordable.  Because Index Engines can make data on backup tapes searchable very cost-effectively, for as little as $50 per tape, data on tape has become  as easy to access and search as online data. Perhaps even easier because it’s not on a live network.  Backup tapes have a bad reputation because people think of them as complex or expensive, but if you take away the complexity and expense (which is what Index Engines has done), then they really become “full point-in-time” snapshots.  So, if you have litigation from a specific date range, you can request that data snapshot (which is a tape) and perform discovery on it.  Tape is really a natural litigation hold when you think about it, and there is no need to perform the hold retroactively.

So, what does the ease of which the information can be indexed from tape do to address the inaccessible argument for tape retrieval?  That argument has been eroding over the years, thanks to technology like ours.  And, you see decisions from judges like Judge Scheindlin saying “if you cannot find data in your primary network, go to your backup tapes”, indicating that they consider backup tapes in the next source right after online networks.  You also see people like Craig Ball writing that backup tapes may be the most convenient and cost-effective way to get access to data.  If you had a choice between doing a “server crawl” in a corporate environment or just asking for a backup tape of that time frame, tape is the much more convenient and less disruptive option.  So, if your opponent goes to the judge and says it’s going to take millions of dollars to get the information off of twenty tapes, you must know enough to be in front of a judge and say “that’s not accurate”.  Those are old numbers.  There are court cases where parties have been instructed to use tapes as a cost-effective means of getting to the data.  Technology removes the inaccessible argument by making it easier, faster and cheaper to retrieve data from backup tapes.

The erosion of the accessibility burden is sparking the information governance initiatives. We’re seeing companies come to us for legacy data remediation or management projects, basically getting rid of old tapes. They are saying “if I’ve got ten years of backup tapes sitting in offsite storage, I need to manage that proactively and address any liability that’s there” (that they may not even be aware exists).  These projects reflect a proactive focus towards information governance by remediating those tapes and getting rid of data they don’t need.  Ninety-eight percent of the data on old tapes is not going to be relevant to any case.  The remaining two percent can be found and put into the company’s litigation hold system, and then they can get rid of the tapes.

How do incremental backups play into that?  Tapes are very incremental and repetitive.  If you’re backing up the same data over and over again, you may have 50+ copies of the same email.  Index Engines technology automatically gets rid of system files and applies a standard MD5Hash to dedupe.  Also, by using tape cataloguing, you can read the header and say “we have a Saturday full backup and five incremental during the week, then another Saturday full backup”. You can ignore the incremental tapes and just go after the full backups.  That’s a significant percent of the tapes you can ignore.

What are you working on that you’d like our readers to know about?

Index Engines just announced today a partnership with LeClairRyan. This partnership combines legal expertise for data retention with the technology that makes applying the policy to legacy data possible.   For companies that want to build policy for the retention of legacy data and implement the tape remediation process we have advisors like LeClairRyan that can provide legacy data consultation and oversight.  By proactively managing the potential liability  of legacy data, you are also saving the IT costs to explore that data.

Index Engines  also just announced a new cloud-based tape load service that will provide full identification, search and access to tape data for eDiscovery. The Look & Learn service, starting at $50 per tape, will provide clients with full access to the index of their tape data without the need to install any hardware or software. Customers will be able to search the index and gather knowledge about content, custodians, email and metadata all via cloud access to the Index Engines interface, making discovery of data from tapes even more convenient and affordable.

Thanks, Jim, 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!

eDiscovery Trends: Tom Gelbmann of Gelbmann & Associates, LLC

 

This is the first of the LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and asked each of them the same three questions:

  1. What do you consider to be the current significant trends in eDiscovery that people in the industry are, or should be, focused on?
  2. Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom Gelbmann. Tom is Principal of Gelbmann & Associates, LLC, co-author of the Socha-Gelbmann Electronic Discovery Survey and co-founder of the Electronic Discovery Reference Model (EDRM).  Since 1993, Gelbmann & Associates, LLC has helped law firms and Corporate Law Departments realize the full benefit of their investments in Information Technology.  As today is Valentine’s Day, consider this interview with Tom as eDiscoveryDaily’s Valentine’s Day present to you!

What do you consider to be the current significant trends in eDiscovery that people in the industry are, or should be, focused on?

The first thing that comes to mind is the whole social media thing, which is something you’re probably getting quite a bit of (in your interviews), but with the explosion of the use of social media, personally and within organizations, we’re seeing a huge explosion (in eDiscovery).  One of the issues is that there is very little in terms of policy and management around that, and I look at it in a very similar vein to the late ’80s and early ‘90s when electronic mail came about and there were no real defining guidelines.  It wasn’t until we got to a precipitating event where “all of a sudden, organizations get religion” and say “oh my god, we better have a policy for this”.  So, I think the whole social media thing is one issue.

On top of that, another area that is somewhat of an umbrella to all this is information management and EDRM with the Information Management Reference Model (IMRM) is certainly part of that. What is important in this context is that corporations are beginning to realize the more they get their “electronic house in order”, the better off they’re going to be in many ways.  Less cost, less embarrassment and so forth.

The third thing is that, and this is something that I’ve been tracking for awhile, the growth in tools and solutions available for small organizations and small cases.  For a long time, everything was about millions of documents and gigabytes of data – that’s what got the headlines and that what the service bureaus and providers were focusing on.  The real “gold” in my mind is the small cases, the hundreds of thousands of small cases that are out there.  The providers that can effectively reach that market in a cost-effective way will be positioned very well and I think we’re starting to see that happen.  And, I think the whole “cloud” concept of technology is helping that.

Which of those trends are evident here at LTNY, which are not being talked about enough, and/or what are your general observations about LTNY this year?

{Interviewed on the first afternoon of the show} Well, so far it’s been a blur [laughs].  But, I think we’re definitely seeing social media as a big issue at this LegalTech and I also think we’re seeing more solutions toward the smaller cases and smaller organizations here at this year’s show.

What are you working on that you’d like our readers to know about?

From an EDRM standpoint, I just came from a meeting for the EDRM Testing pilot project.  Last fall, at the mid-year meeting, there was a groundswell to address testing, and the basic issue is applying some principles of testing to software products associated with electronic discovery to answer the question of “how do you know?” when the court asks if the results are true and what sort of testing process did you go through.  There is very little as far as a testing regimen or even guidelines on a testing regimen for electronic discovery software and so the EDRM testing group is looking to establish some guidelines, starting very basically looking at bands of rigor associated with bands of risk.  So, you will see that at this year’s EDRM annual meeting in May that EDRM Testing will become a full-fledged project.

And the other thing that I’m happy to announce is that George Socha and I have launched a web site called Apersee, which is the next step in the evolution of the (Socha-Gelbmann) rankings.  We killed the rankings two years ago because they were being misused.  Consumers wanted to know who do I send the RFP to, who do I engage and they would almost mindlessly send to the Socha-Gelbmann Top Ten.  But, now the consumers can specify what they’re looking for, starting with areas of the model, whether it’s Collection, Preservation, Review, etc., and provide other information such as geography and types of ESI and what will be returned on those searches is a list of providers with those services or products.  We have right now about 800 providers in the database and many of those have very basic listings at this point.  As this is currently in beta, we have detailed information that we pre-populated for about 200 providers and are expanding rapidly.  Over the next couple of months, we’re working hard with providers to populate their sites with whatever content is appropriate to describe their products and services in terms of what they do, where they do it, etc., that can feed the search engine.  And, we have been getting very good feedback from both the consumer side and the provider side as being a very valuable service.

Thanks, Tom, 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!

eDiscovery Best Practices: Database Discovery Pop Quiz ANSWERS

 

So, how did you do?  Did you know all the answers from Friday’s post – without “googling” them?  😉

Here are the answers – enjoy!

What is a “Primary Key”? The primary key of a relational table uniquely identifies each record in the table. It can be a normal attribute that you expect to be unique (e.g., Social Security Number); however, it’s usually best to be a sequential ID generated by the Database Management System (DBMS).

What is an “Inner Join” and how does it differ from an “Outer Join”?  An inner join is the most common join operation used in applications, creating a new result table by combining column values of two tables.  An outer join does not require each record in the two joined tables to have a matching record. The joined table retains each record in one of the tables – even if no other matching record exists.  Sometimes, there is a reason to keep all of the records in one table in your result, such as a list of all employees, whether or not they participate in the company’s benefits program.

What is “Normalization”?  Normalization is the process of organizing data to minimize redundancy of that data. Normalization involves organizing a database into multiple tables and defining relationships between the tables.

How does a “View” differ from a “Table”?  A view is a virtual table that consists of columns from one or more tables. Though it is similar to a table, it is a query stored as an object.

What does “BLOB” stand for?  A Binary Large OBject (BLOB) is a collection of binary data stored as a single entity in a database management system. BLOBs are typically images or other multimedia objects, though sometimes binary executable code is stored as a blob.  So, if you’re not including databases in your discovery collection process, you could also be missing documents stored as BLOBs.  BTW, if you didn’t click on the link next to the BLOB question in Friday’s blog, it takes you to the amusing trailer for the 1958 movie, The Blob, starring a young Steve McQueen (so early in his career, he was billed as “Steven McQueen”).

What is the different between a “flat file” and a “relational” database?  A flat file database is a database designed around a single table, like a spreadsheet. The flat file design puts all database information in one table, or list, with fields to represent all parameters. A flat file is prone to considerable duplicate data, as each value is repeated for each item.  A relational database, on the other hand, incorporates multiple tables with methods (such as normalization and inner and outer joins, defined above) to store data efficiently and minimize duplication.

What is a “Trigger”?  A trigger is a procedure which is automatically executed in response to certain events in a database and is typically used for keeping the integrity of the information in the database. For example, when a new record (for a new employee) is added to the employees table, a trigger might create new records in the taxes, vacations, and salaries tables.

What is “Rollback”?  A rollback is the undoing of partly completed database changes when a database transaction is determined to have failed, thus returning the database to its previous state before the transaction began.  Rollbacks help ensure database integrity by enabling the database to be restored to a clean copy after erroneous operations are performed or database server crashes occur.

What is “Referential Integrity”?  Referential integrity ensures that relationships between tables remain consistent. When one table has a foreign key to another table, referential integrity ensures that a record is not added to the table that contains the foreign key unless there is a corresponding record in the linked table. Many databases use cascading updates and cascading deletes to ensure that changes made to the linked table are reflected in the primary table.

Why is a “Cartesian Product” in SQL almost always a bad thing?  A Cartesian Product occurs in SQL when a join condition (via a WHERE clause in a SQL statement) is omitted, causing all combinations of records from two or more tables to be displayed.  For example, when you go to the Department of Motor Vehicles (DMV) to pay your vehicle registration, they use a database with an Owners and a Vehicles table joined together to determine for which vehicle(s) you need to pay taxes.  Without that join condition, you would have a Cartesian Product and every vehicle in the state would show up as registered to you – that’s a lot of taxes to pay!

If you didn’t know the answers to most of these questions, you’re not alone.  But, to effectively provide the information within a database responsive to an eDiscovery request, knowledge of databases at this level is often necessary to collect and produce the appropriate information.    As Craig Ball noted in his Law.com article Ubiquitous Databases, “Get the geeks together, and get out of their way”.  Hey, I resemble that remark!

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

eDiscovery Best Practices: Database Discovery Pop Quiz

 

Databases: You can’t live with them, you can’t live without them.

Or so it seems in eDiscovery.  On a regular basis, I’ve seen various articles and discussions related to discovery of databases and other structured data and I remain very surprised how few legal teams understand database discovery and know how to handle it.  A colleague of mine (who I’ve known over the years to be honest and reliable) even claimed to me a few months back while working for a nationally known eDiscovery provider that their collection procedures actually excluded database files.

Last month, Law.com had an article written by Craig Ball, called Ubiquitous Databases, which provided a lot of good information about database discovery. It included various examples how databases touch our lives every day, while noting that eDiscovery is still ultra document-centric, even when those “documents” are generated from databases.  There is some really good information in that article about Database Management Software (DBMS), Structured Query Language (SQL), Entity Relationship Diagrams (ERDs) and how they are used to manage, access and understand the information contained in databases.  It’s a really good article especially for database novices who need to understand more about databases and how they “tick”.

But, maybe you already know all you need to know about databases?  Maybe you would already be ready to address eDiscovery on your databases today?

Having worked with databases for over 20 years (I stopped counting at 20), I know a few things about databases.  So, here is a brief “pop” quiz on database concepts.  Call them “Database 101” questions.  See how many you can answer!

  • What is a “Primary Key”? (hint: it is not what you start the car with)
  • What is an “Inner Join” and how does it differ from an “Outer Join”?
  • What is “Normalization”?
  • How does a “View” differ from a “Table”?
  • What does “BLOB” stand for? (hint: it’s not this)
  • What is the different between a “flat file” and a “relational” database?
  • What is a “Trigger”?
  • What is “Rollback”? (hint: it has nothing to do with Wal-Mart prices)
  • What is “Referential Integrity”?
  • Why is a “Cartesian Product” in SQL almost always a bad thing?

So, what do you think?  Are you a database guru or a database novice?  Please share any comments you might have or if you’d like to know more about a particular topic.

Did you think I was going to provide the answers at the bottom?  No cheating!!  I’ll answer the questions on Monday.  Hope you can stand it!!

eDiscovery Trends: 2011 Predictions — By The Numbers

 

Comedian Nick Bakay”>Nick Bakay always ends his Tale of the Tape skits where he compares everything from Married vs. Single to Divas vs. Hot Dogs with the phrase “It's all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year.  We’ll have some of our own in the next few days (hey, the longer we wait, the more likely we are to be right!).  However, before stating those predictions, I thought we would take a look at other predictions and see if we can spot some common trends among those, “googling” for 2011 eDiscovery predictions, and organized the predictions into common themes.  I found serious predictions here, here, here, here and here.  Oh, also here and here.

A couple of quick comments: 1) I had NO IDEA how many times that predictions are re-posted by other sites, so it took some work to isolate each unique set of predictions.  I even found two sets of predictions from ZL Technologies, one with twelve predictions and another with seven, so I had to pick one set and I chose the one with seven (sorry, eWEEK!). If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment.  2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out.  Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

  • Cloud and SaaS Computing: Six out of seven “prognosticators” indicated that adoption of Software as a Service (SaaS) “cloud” solutions will continue to increase, which will become increasingly relevant in eDiscovery.  No surprise here, given last year’s IDC forecast for SaaS growth and many articles addressing the subject, including a few posts right here on this blog.
  • Collaboration/Integration: Six out of seven “augurs” also had predictions related to various themes associated with collaboration (more collaboration tools, greater legal/IT coordination, etc.) and integration (greater focus by software vendors on data exchange with other systems, etc.).  Two people specifically noted an expectation of greater eDiscovery integration within organization governance, risk management and compliance (GRC) processes.
  • In-House Discovery: Five “pundits” forecasted eDiscovery functions and software will continue to be brought in-house, especially on the “left-side of the EDRM model” (Information Management).
  • Diverse Data Sources: Three “soothsayers” presaged that sources of data will continue to be more diverse, which shouldn’t be a surprise to anyone, given the popularity of gadgets and the rise of social media.
  • Social Media: Speaking of social media, three “prophets” (yes, I’ve been consulting my thesaurus!) expect social media to continue to be a big area to be addressed for eDiscovery.
  • End to End Discovery: Three “psychics” also predicted that there will continue to be more single-source end-to-end eDiscovery offerings in the marketplace.

The “others receiving votes” category (two predicting each of these) included maturing and acceptance of automated review (including predictive coding), early case assessment moving toward the Information Management stage, consolidation within the eDiscovery industry, more focus on proportionality, maturing of global eDiscovery and predictive/disruptive pricing.

Predictive/disruptive pricing (via Kriss Wilson of Superior Document Services and Charles Skamser of eDiscovery Solutions Group respective blogs) is a particularly intriguing prediction to me because data volumes are continuing to grow at an astronomical rate, so greater volumes lead to greater costs.  Creativity will be key in how companies deal with the larger volumes effectively, and pressures will become greater for providers (even, dare I say, review attorneys) to price their services more creatively.

Another interesting prediction (via ZL Technologies) is that “Discovery of Databases and other Structured Data will Increase”, which is something I’ve expected to see for some time.  I hope this is finally the year for that.

Finally, I said that I found serious predictions and analyzed them; however, there are a couple of not-so-serious sets of predictions here and here.  My favorite prediction is from The Posse List, as follows: “LegalTech…renames itself “EDiscoveryTech” after Law.com survey reveals that of the 422 vendors present, 419 do e-discovery, and the other 3 are Hyundai HotWheels, Speedway Racers and Convert-A-Van who thought they were at the Javits Auto Show.”

So, what do you think?  Care to offer your own “hunches” from your crystal ball?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Social Media in Litigation

Yesterday, we introduced the Virtual LegalTech online educational session Facing the Legal Dangers of Social Media and discussed what factors a social media governance policy should address.  To get background information regarding the session, including information about the speakers (Harry Valetk, Daniel Goldman and Michael Lackey), click here.

The session also addressed social media in litigation, discussing several considerations about social media, including whether it’s discoverable, how it’s being used in litigation, how to request it, how to preserve it, and how to produce it.  Between wall postings, status updates, personal photos, etc., there’s a lot of content out there and it’s just as discoverable as any other source of ESI – depending on its relevance to the case and the burden to collect, review and produce.  The relevance of privacy settings may be a factor in the discoverability of this information as at least one case, Crispin v. Christian Audigier, Inc.,(C.D. Cal. May 26, 2010), held that private email messaging on Facebook, MySpace and Media Temple was protected as private.

So, how is social media content being used in litigation?  Here are some examples:

  • Show Physical Health: A person claiming to be sick or injured at work who has photos on their Facebook profile showing them participating in strenuous recreation activities;
  • Discrimination and Harassment: Statements made online which can be considered discriminatory or harassing or if the person “likes” certain groups with “hate” agendas;
  • False Product Claims: Statements online about a product that are not true or verifiable;
  • Verify or Refute Alibis: Social media content (photos, location tracking, etc.) can verify or refute alibis provided by suspects in criminal cases;
  • Pre-Sentencing Reports: Social media content can support or refute claims of remorse – in one case, the convicted defendant was sentenced more harshly because of statements made online that refuted his statements of remorse in the courtroom;
  • Info Gathering: With so much information available online, you can gather information about opposing parties, witnesses, attorneys, judges, or even jurors.  In some cases, attorneys have paid firms to ensure that positive information will bubble to the top when jurors “Google” those attorneys.  And, in Ohio, at least, judges may not only have Facebook friends, but those friends can include attorneys appearing before them (interesting…).

If possible, request the social media content from your opponent as the third-party provider will probably fight having to provide the content, usually citing the Stored Communications Act.  As noted previously on this blog, Facebook and Twitter have guidelines for requesting data – through subpoena and law enforcement agencies.

Social media content is generally stored by third-party Software as a Service (SaaS) providers (Facebook and Twitter are examples of SaaS providers), so it’s important to be prepared to address several key eDiscovery issues to proactively prepare to be able to preserve and produce the data for litigation purposes, just as you would with any SaaS provider.

So, what do you think?  Has your organization been involved in litigation where social media content was requested?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Social Media Policies to Manage Risk

As noted previously, ALM hosted another Virtual LegalTech online “live” day online last week.  We’ve talked about the session regarding Predictive Coding here and here.

Another session from last week’s “live” day was Facing the Legal Dangers of Social Media.  The speakers for this session were:

  • Harry A. Valetk: Internet Safety and Consumer Privacy Attorney, MetLife Privacy Office;
  • Daniel S. Goldman: Chair of Mayo Clinic’s business law practice group which oversees the corporate law, contracting and intellectual property functions of the Mayo Clinic legal department.; and
  • Michael E. Lackey, Jr.: Partner and co-chair of the Electronic Discovery and Records Management Practice for Mayer Brown LLP.

Establishing boundaries between your professional life and personal life continues to be more challenging as more personal information is available online.  The session cited a handful of cases where terminations resulted from postings on individuals’ personal social media accounts, one of which was challenged by the National Labor Relations Board (NLRB).  At least one state has rules in place – Section 201-d(2)(c) of New York’s Labor Law protects “legal recreational activities” engaged off-site during nonworking hours.

An interesting stat from the session was that “27% of employed Internet users now work for employer[s] with policies about how they may present themselves online”.  As noted previously in this blog, having a social governance policy in place is a good idea to govern use of outside email, chat and social media that covers what employees should and should not do.  From the session, here are some factors that a good social governance policy should address:

  • Educate: The social governance policy should be accessible and all employees should receive training with examples that illustrate what may not be obvious to everybody,
  • Plan for Crises: The speed and reach of social media means that a crisis will happen fast.  Identify a crisis team and develop a plan to react quickly.  When disgruntled employees of Domino’s pizza posted a video, showing them tainting food, Domino’s management reacted quickly.
  • Plagiarize:  Yes, plagiarize.  As in, there are many good ideas already implemented out there for social governance, don’t reinvent the wheel.
  • Use of Social Media During Work: Some companies will try to ban the use of social media during work by banning access to sites via work computers, but employees can simply access those sites on mobile devices, so it’s better to establish an expectation of level of acceptable use.
  • Preserve Customer Privacy: Any policy must stress the importance of this.
  • Identify Company Spokespersons: Establish who can speak on behalf of the company and make clear to others to stress that any views they espouse online are personal views.
  • Address the Blurring of Boundaries: Employees should not exhibit inappropriate behavior on social media when identified as employees, and there should be no association with the employer for any behavior incompatible with the brand/profession.
  • Business Confidentiality: Don’t discuss trade secrets or other confidential information online.  Even posting that you’re attending a meeting with a company that you’re negotiating with can violate NDA agreements.
  • Prohibit Employees from Speaking Anonymously: It’s considered unethical at best and may be an FTC violation at worst as John Mackey, Whole Foods CEO, found out back in 2007.
  • Don’t Harass: If it’s unacceptable behavior in the workplace, it’s unacceptable online.  Not to mention gutless.  And, employers can be liable if they’re aware of harassing behavior online and don’t act to address it.

Tomorrow, we’ll discuss the discoverability and use of social media content in litigation.  As noted with the predictive coding session, you can check out a replay of the session at the Virtual LegalTech site. You’ll need to register – it’s free – then login and go to the CLE Center Auditorium upon entering the site (which is up all year, not just on “live days”).  Scroll down until you see this session and then click on “Attend Now” to view the replay presentation.  You can also go to the Resource Center at the site and download the slides for the presentation.

So, what do you think?  Does your organization have a social media policy in place?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Tips: SaaS and eDiscovery – More Top Considerations

Friday, we began talking about the article regarding Software as a Service (SaaS) and eDiscovery entitled Top 7 Legal Things to Know about Cloud, SaaS and eDiscovery on CIO Update.com, written by David Morris and James Shook from EMC.  The article, which relates to storage of ESI within cloud and SaaS providers, can be found here.

The article looks at key eDiscovery issues that must be addressed for organizations using public cloud and SaaS offerings for ESI, and Friday’s post looked at the first three issues.  Here are the remaining four issues from the article (requirements in bold are quoted directly from the article):

4. What if there are technical issues with e-discovery in the cloud?  The article discusses how identifying and collecting large volumes of data can have significant bandwidth, CPU, and storage requirements and that the cloud provider may have to do all of this work for the organization.  It pays to be proactive, determine potential eDiscovery needs for the data up front and, to the extent possible, negotiate eDiscovery requirements into the agreement with the cloud provider.

5. If the cloud/SaaS provider loses or inadvertently deletes our information, aren’t they responsible? As noted above, if the agreement with the cloud provider includes eDiscovery requirements for the cloud provider to meet, then it’s easier to enforce those requirements.  Currently, however, these agreements rarely include these types of requirements.  “Possession, custody or control” over the data points to the cloud provider, but courts usually focus their efforts on the named parties in the case when deciding on spoliation claims.  Sounds like a potential for third party lawsuits.

6. If the cloud/SaaS provider loses or inadvertently deletes our information, what are the potential legal ramifications?  If data was lost because of the cloud provider, the organization will probably want to establish that they’re not at fault. But it may take more than establishing who deleted the data. – the organization may need to demonstrate that it acted diligently in selecting the provider, negotiating terms with established controls and notifying the provider of hold requirements in a timely manner.  Even then, there is no case law guidance as to whether demonstrating such would shift that responsibility and most agreements with cloud providers will limit potential damages for loss of data or data access.

7. How do I protect our corporation from fines and sanction for ESI in the cloud?  The article discusses understanding what ESI is potentially relevant and where it’s located.  This can be accomplished, in part, by creating a data map for the organization that covers data in the cloud as well as data stored within the organization.  Again, covering eDiscovery and other compliance requirements with the provider when negotiating the initial agreement can make a big difference.  As always, be proactive to minimize issues when litigation strikes.

Let’s face it, cloud and SaaS solutions are here to stay and they are becoming increasingly popular for organizations of all sizes to avoid the software and infrastructure costs of internal solutions.  Being proactive and including corporate counsel up front in decisions related to SaaS selections will enable your organization to avoid many potential problems down the line.

So, what do you think?  Does your company have mechanisms in place for discovery of your cloud data?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Tips: SaaS and eDiscovery – Top Considerations

 

There was an interesting article this week regarding Software as a Service (SaaS) and eDiscovery entitled Top 7 Legal Things to Know about Cloud, SaaS and eDiscovery on CIO Update.com, written by David Morris and James Shook from EMC.  The article, which relates to storage of ESI within cloud and SaaS providers, can be found here.

The authors note that “[p]roponents of the cloud compare it to the shift in electrical power generation at the turn of the century [1900’s], where companies had to generate their own electric power to run factories.  Leveraging expertise and economies of scale, electric companies soon emerged and began delivering on-demand electricity at an unmatched cost point and service level.”, which is what cloud components argue that the SaaS model is doing for IT services.

However, the decision to move to SaaS solutions for IT services doesn’t just affect IT – there are compliance and legal considerations to consider as well.  Because the parties to a case have a duty to identify, preserve and produce relevant electronically stored information (ESI), information for those parties stored in a cloud infrastructure or SaaS application is subject to those same requirements, even though it isn’t necessarily in their total control.  With that in mind, the article looks at key eDiscovery issues that must be addressed for organizations using public cloud and SaaS offerings for ESI, as follows (requirements in bold are quoted directly from the article):

  1. Where is ESI actually located when it is in the ethereal cloud or SaaS application?  It’s important to know where your data is actually stored.  Because SaaS providers are expected to deliver data on demand at any time, they may store your data in more than one data center for redundancy purposes.  Data centers could be located outside of the US, so different compliance and privacy requirements may come into play if there is a need to produce data from these locations.
  2. What are the legal implications of e-discovery in the cloud? Little case law exists on the subject, but it is expected that the responsibility for timely preservation, collection and production of the data remains with the organization at party in the lawsuit, even though that data may be in direct control of the cloud provider.
  3. What happens if a lawsuit is in the US but one company’s headquarters is in another country? Or what if the data is in a country where the privacy rules are different?  The article references one case – AccessData Corp. v. ALSTE Technologies GMBH , 2010 WL 318477 (D. Utah Jan. 21, 2010) – where the German company ALSTE cited German privacy laws as preventing it from collecting relevant company emails that were located in Germany (the US court compelled production anyway).  So, jurisdictional factors can come into play when cloud data is housed in a foreign jurisdiction.

This is too big a topic to cover in one post, so we’ll cover the other four eDiscovery issues to address in Monday’s post.  Let the anticipation build!

So, what do you think?  Does your company have ESI hosted in the cloud?  Please share any comments you might have or if you’d like to know more about a particular topic.