Category: E-mail

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.

Craig Ball never fails to amaze me with how he can eloquently define and describe a tough topic in the world of e-discovery. In his latest column for Law Technology News, Craig deftly explains the nuances with producing e-mail messages in “native” format and additionally what he calls “quasi-native” format.

Microsoft Outlook will natively store e-mail on a local computer in what’s known as a .pst file. Craig describes the .pst file as a “container” file becuase not only does it hold e-mail, but that local .pst file will also hold Outlook’s calendar data, tasks, and contacts. So when opposing counsel requests relevant e-mail in native format and you produce the “raw” .pst file, you would be blindly producing a lot of additional irrelevant, personal, and possibly privileged information.

Craig explains how you can still produce a .pst file to the other side, only after you’ve done your privilege review and “reconstituted” a .pst file to only contain relevant e-mail messages, minus all the calendar appointments, tasks, and contacts. This is sometimes called “quasi-native” format.

Lastly, Craig pinpoints the biggest hurdle in so many circumstances – communication:

“So, talk to each other, and don’t rely on buzzwords like ‘native file format’ unless your meaning is clear. You’ll be amazed how often the question, ‘What do you mean by native file format?’ will be answered, ‘I have no idea. I just heard it was something I should ask for.’”

Link to column

A good article from Processor magazine entitled “How to Archive Email” (via edd blog online) that tackles the subject from a technical perspective.

The article starts off with a good quote:

“For many employees, using email is really only about two things: sending and receiving. But for enterprises as a whole, email is their lifeblood.”

I like that quote because it’s a good reminder that no matter how much the e-discovery industry rants and raves about the need to archive this and preserve that, the majority of folks that use e-mail just see it as a convenient communication medium, and nothing more.

Dean Richardson of ArcMail Technology is quoted:

[...many companies] “opt for email archiving, not for particular compliance reasons but because their users want unlimited email storage without mailbox restrictions.”

Richardson also declares that the trend is bending towards “keeping everything” asking “Do you want to be the only one in court without a copy of your own email?” That’s a valid question since a company may feel safe if they appropriately deleted a sent e-mail from their own servers, but it will turn up in discovery because the recipient of that e-mail saved it on their own server. You don’t want trial to be the first time you see that e-mail message – an e-mail archiving system (based on a well thought-out policy) would have helped you find that message during your own review.

Link to story

Good story from Enterprisestorageforum.com on the current state of e-mail archive vendors. The market is still growing, but mergers are starting to happen. The vendors that will succeed will be those that take advantage of new technology and make their services scalable.

Siliconrepublic.com posts a story today entitled “Irish firms in email archive crisis” which simply reports that companies in Ireland struggle with the same issues of archiving e-mail as here in the U.S. and everywhere else in the world.

Two quotes:

“People assume email is on the backup tape. The backup tape is not an archive option, it’s a recovery option.”

“…some firms print emails and then rescan them into an electronic document management system to save filing cabinet space, an unnecessary process if proper email archiving is in place.”

I have long respected Zantaz for their work in the industry and it looks like I’m not the only one. U.K.-based Autonomy announced July 3 that they acquired Zantaz for $375 million. Zantaz was founded in 1996 and was one of the first companies to go down the road of e-mail archiving. They still run strong today in 9 of the top 10 global law firms.

The Futurelawyer mentioned InBoxer back on June 8 and I was very intrigued. InBoxer is a rack-mounted virtual appliance that conncts to your e-mail server and can be used to archive and filter messages as needed.

According to the InfoWorld review the appliance will work with both Exchange and IBM Lotus Domino and scores each e-mail message on a scale of 1 to 100 for inappropriate content, privacy violations, and other metrics. Obviously, InBoxer was initially aimed at the risk management sector, but it can just as obviously be used for e-discovery issues.

The largest kudos for the company goes for their test site located at www.EnronEmail.com. You sign up for a free account and have the ability to use their software through your Web browser (which is how you would use it anyway). The site cautions you on the offensive language you’ll find inside the Enron e-mails, but this is a fantastic way for potential customers to test run the appliance.

Why don’t more vendors do this? I congratulate InBoxer for having enough confidence in their appliance to allow a test run like this. And the system is a joy to use.

IDC released a study done in May 2007 that predicts the e-mail archiving applications market will approach $1.4 billion in 2011. A press release reported that the study saw the e-mail archiving applications market grow by 45% in 2006, “which was driven by the need for e-mail archiving to satisfy compliance, legal discovery, and storage optimization requirements.”

Where public companies have been dealing with this technology to satisfy SEC regulations, the rampant explosion of electronic discovery has further fueled the indistry. The press release further reports that the IDC study pegged Symantec/KVS to lead the market in 2006 followed by Zantaz Inc. The study covered most of the big boys in the industry including AXS-One, EMC, IBM, and Postini.

I always enjoy finding a Webinar on electronic discovery that’s not from a firm, ediscovery vendor, or an expensive co-branded conference. I believe that we in the ediscovery industry sometimes act like we wear blinders because we get ignorant and oblivious to what real people in the real world are struggling with – we feel that worrying about how to retain an e-mail message should be their top priority. Maybe it should, but IT professionals usually have many, many other things to worry about.

So I was excited to see this “eDiscovery, Regulation and You – The Importance of Archiving with Hosted Services” Webinar from IDC and Microsoft Exchange Hosted Services.

Admittedly, it’s a bit of an ad for MS Exchange Hosted Service, but it’s still interesting. Vivian Tero, Senior Analyst from IDC, expounds a bit on an important survey (Survey: “Companies not prepared for new e-discovery rules) they conducted back in November 2006 and provides some more detail on their findings.

Then Bernie Goulet, the Central Region Partner for Microsoft Exchange Hosted Services, explains that their service is a “comprehensive set of fully-managed, in the cloud, service for e-mail security and management.”

I admit that I don’t know too much about Exchange Hosted Services (technology acquired from FrontBridge Technologies in 2005) but it obviously looks like an option for Exchange shops that want to implement an easy-to-deploy archive and filtering e-mail service, as well as a centralied anti-spam and anti-virus solution.

It’s an interesting exercise to consider what folks outside the U.S. think about our discovery system. Take for example this story from Techworld (which is based in the UK) entitled “US legal discovery is an horrendous nightmare – Pray, pray you don’t get involved in it.” They’re reporting on the AMD v. Intel matter and warn IT professionls to cosider an e-mail archiving system for their company if they anticipate ever getting sued under a U.S. Federal Court.

The story reports that Intel has already turned over 17 million pages of documents to AMD, and expects to turn over tens of millions more. Intel is in hot water since they’ve admitted they may not have certain relevant e-mails any longer.

My favorite quote:

“AMD will press the court to impose changes on Intel’s existing information preservation procedures. Kicking its opponent when it’s down with legally-authorised (sic) boots? Oh, yes please.”