Category: Accessibility

CXOtoday.com appears to be an IT e-newspaper out of India and they have a short interview with Anil Chakravarthy who is VP of Symnatec India in "Making data easily accessible is a major need."

It’s a bit of a sales piece for Symantec’s Enterprise Vault which is "a software-based intelligent archiving platform" for e-mail systems and file server environments. This is the same Symantec that produces the Norton line of consumer products, but I keep hearing more and more about their business/enterprise products, and especially Enterprise Vault.

Back to the "interview" - I do like the way Mr. Chakravarthy succinctly describes the benefits of archiving (not just e-mail, but electronic files and databases too):

"Archiving helps in offloading historical data from production resources [and] reduce[s] the time it takes for in-house counsel to retrieve electronic evidence in response to a discovery request."

I also found a good blog post noting the "Difference between Email Archiving and Email Compliance" from Cryoserver (a company I’ll write more about soon).

"Email archiving is the management of your exponentially growing email archives onto a different storage media, this might be a local drive, into a .pst file, printing off the email onto paper and sticking it in the client files, or possibly moving the email onto alternative storage media. … [E]mail compliance … requires the emails to be kept for compliance and legislative purposes in a central repository … [which] should not be able to be tampered with in any form. [A]ny access … to this central repository should form part of a formal procedure with auditing to comply with the privacy legislation."

I think this distinction is too simplified (probably to fit it inside the blog post), but it certainly illuminates the glaring struggles that IT administrators have to grapple with in designing their systems for compliance/e-discovery/risk management purposes, all the while working with attorneys, records managers, etc.

I’m going to think about this some more, but perhaps the best way to conceptualize this is to think of "compliance" as providing the rules and regulations for what to save and when, and "archiving" provides the means/methods/tools for following the compliance rules.

Whatis.com provides a good definition of "e-mail archiving" but I like how PCmag.com concisely states it:

"Retaining e-mail messages for historical purposes or to be in compliance with many industry regulations."

Link to CXOtoday.com story and Cryoserver blog post.

Conrad Jacoby, Esq. authors an excellent monthly column on e-discovery topics at LLRX.com.

This month he addresses how discovery requests can extend to personal computers owned by employees in “Discovery of Employee-Owned Computer Equipment.” This is a scary thought, but technology today allows you to work from anywhere, and employees regularly use personal home computers to finish working on documents or access work e-mail accounts.

Conrad does a good of job of describing the difference between employees using remote access and storing documents locally.

“Citrix or Remote Desktop connections turn a computer into a glorified terminal, with all actual work performed on workststations or virtual machines at the company.”

But sometimes, as Conrad points out, employees will download copies of documents and other corporate materials to a USB memory key to take home with them so they can work on a file on their personal computer.

Conrad offers the solution:

“One way to minimize the potential relevance of employee-owned computers in discovery is to develop and enforce policies that discourage using personal equipment to access corporate information.”

This may be an extreme solution, but it properly highlights the difficult line between freedom to work from anywhere, and the necessary level of security for properly supervising a company’s information. It’s a difficult line to straddle, but companies must address the issue each in their own way to effectively manage their risks.

Link to column.

The August 2007 edition of the terrific e-newsletter Law Technology Today runs a story entitled “eDiscovery Sanctions - Staying out of Harms Way” which provides some practical tips on helping a client index and organize their electronic data.

I particularly enjoy the first couple of paragraphs that discuss the 1970 amendments to the Federal Rules of Civil Procedure.

In 1970, the Federal Rules of Civil Procedure incorporated the concept of “data compilations from which information can be obtained” into its text. From that moment on, digital documents on computers were available for discovery.

In reading the Advisory Committee Notes to the 1970 FRCP Amendments for Rule 34(a) (about midway down the page), it’s obvious that they wrestled with several of the same issues that the Advisory Committee struggled with on the 2006 Amendments.

The inclusive description of “documents” is revised to accord with changing technology. It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices … respondent may be required to use his devices to translate the data into usable form. In many instances, this means that respondent will have to supply a print-out of computer data. The burden thus placed on respondent will vary from case to case, and the courts have ample power under Rule 26(c) to protect respondent against undue burden or expense (copied from Cornell’s Legal Information Institute)

I also like how the article distinguishes between “gaining control of the e-mail system” and what they call the “file system” which refers to the “massive [electronic] system housing many of the corporation’s memos, strategic presentations, financial spreadsheets, corporate intellectual property and plenty of other critical digital assets.”

The point is well taken - with so much emphasis on e-mail (much of it deservedly so) many companies don’t pay enough attention to how their employees are saving and storing electronic documents.

In my experience, many companies simply leave it up to individual departments or employees to determine where documents are stored and how they’re named. Obviously, each department must provide input into how their documents are stored, but a confusing collections of document storage practices will always make it more difficult to find the data you need to produce.

Link to column.

I have a lot of respect for Craig Ball’s insights into e-discovery in his monthly column in Law Technology News. It gets reprinted in online sibling Law.com and this month it’s a good one as Craig discusses the vast discrepancies in page counts you’ll find when looking at electronic media.

Craig tackles one of the most difficult topics in the industry. Difficult because it’s something that lawyers accept without question and vendors promulgate because it commonly means more money.

I don’t fault the vendors as much as the lawyers, because it’s the lawyers that demand a tangible page count so they can come up with a tangible number in tangible dollars. Unfortunately, when it comes to electronic data, lawyers can’t be bothered by the legal mantra “it depends.”

As Craig points out, it’s ludicrous to make a blanket statement like 1 GB = 500,000 typewritten pages, but that’s exactly what attorneys want to hear. Attorneys do not want to hear “well it depends on what resolution the documents were scanned with, and if they contained images, and if they were scanned in color or black & white;” or “it depends on if the documents were converted to TIF/PDF electronically, or if the Excel spreadsheets contained hidden columns, or if the Word documents contained images or tables.”

But all of these questions can significantly impact the file size of the data and should be thoroughly considered when providing a quote for an e-discovery project. A common practice today is to take a representative sliver of the data you will be processing and “sample” it through the system you’ll be using. This is really becoming one of the most accurate ways we have today for “guessing” what a project will cost.

A very readable analysis of the ruling in Columbia Pictures Industries v. Bunnelli where the judge ordered TorrentSpy to start preserving information temporarily stored in RAM on their servers so as to capture IP addresses of users and potential copyright infringers.

Kelly Talcott, a partner at K&L Gates points out that other stories have lambasted the ruling as the end of Internet privacy. Mr. Talcott does an excellent job of walking through the judge’s reasoning in making the ruling, and likewise does an excellent job of explaining the issues in the case.

A truly excellent article outlining the interplay between inside and outside counsel regarding e-discovery. Michael Gold (partner) and Ryan Mauck (associate) at Jeffer, Mangels, Butler & Marmaro author a superb overview of how an e-discovery project should flow and who has what responsibilities on both sides of a litigation matter.

I especialy appreciate the first paragraph which does a fine job of listing the responsibilities of today’s lawyers regarding e-discovery:

“Effective compliance with the new rules requires:

1. a fundamental understanding of how digital technology works,
2. sufficient skill to manage the identification, harvesting and production of electronic information,
3. an ability to communicate with:
   a) the court,
   b) opposing counsel,
   c) outside litigation counsel,
   d) and the client”

Other key quotes from the article include:

One of the most critical skills is the ability to understand every dimension of the e-discovery process, from the creation of discoverable information to the business use of such information and — this is where many lawyers will falter — to the effective addressing of e-discovery issues with the client and the coordination of e-discovery between in-house and outside litigation counsel.

One of the most important steps in e-discovery takes place when outside counsel develops an effective working relationship with the client’s IT staff. In “traditional” litigation, you have the usual roster of players. With e-discovery, there are several more — the client’s IT staff, your outside e-discovery expert (who may be retained by in-house counsel or outside counsel), and, of course, the opposing party’s IT staff and outside e-discovery expert.

Searchstorage.com runs a good piece (via the Electronic Discovery Blog) by Rick Cook on what it means to degauss an old backup tape. He also provides some tips on dealing with old tapes (i.e. don’t sell them and physically destroy tapes that contained confidential data).

Bret Thielen complained that the Blinko service (owned by Buongiorno but take caution in visiting the site) was sending text messages to his cell phone that he didn’t ask for. He was mad enough to sue the company in the Western District of Michigan (download from Thelen Reid Brown Raysman & Steiner LLP blog, found via George Socha’s In Re Discovery blog).

Blinko/Buongiorno insisted that customers must subscribe to its service to receive messages, so they wanted to search through Thielen’s computer hard drive to prove he visited the Blinko site and subscribed to their service. In electronic discovery, this is how forensics can be helpful - a forensics expert can go through a hard drive and re-build the story or timeline of how the events happened (the story metaphor is a favorite of good friend and computer forensics expert Craig Ball).

Judge Brenneman, Jr., however, recognized that giving defendants “unrestricted access” to Thielen’s hard drive would “certainly constitute an undue burden” and would result in a “wholesale rummaging through plaintiff’s filing cabinet.”

Judge Brenneman also lamented:

“‘Unlike the not so distant past, when individual file folders pertaining to specific subjects could be readily identified and removed from a file drawer for inspection without disclosing the rest of the contents of the file cabinet to the opposing side, inspection of an opponent’s computer may open up countless files to the searcher that are not relevant and may be proprietary or privileged.”

The end result was the Judge ordering an “experienced forensic examiner” to look over the hard drive and then provide a “hard copy of his proposed findings to plaintiff’s counsel for review prior to furnishing them to defendant’s counsel.” I am a little confused why the Judge is requesting a “hard copy,” but that is the Judge’s prerogrative.

The lesson here, according to Michael Overlay on the CSO blog is to be careful what you ask for. The other side could just as easily come back and ask for everything resulting in MAD (Mutally Assured Destruction) as applied to electronic discovery.