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How many times have you participated in a conversation about a legal hold directive that starts with “You want me to hold what?” My guess is likely not enough. This was a hot topic at the eDJ Boot Camp on Legal Hold held in Atlanta earlier this month. It was also a point of discussion at the Today’s Executive Counsel Institute’s ‘The Exchange’ event last week in Chicago. It appears that “you want me to hold what?” is a common question. Yet, it is rarely asked out loud. Instead, the preservation order is followed as best as it can be interpreted. Following a preservation order is good, right? Right! BUT…too often there are gaps in the real scope, the scope laid out in the preservation order, and the message given to legal hold recipients. A breakdown in the legal hold [...]
by Greg Buckles
My definition of Dark Data differs from Wikipedia:
“Data relevant to a discovery request that is either never disclosed or is produced without contextual information that could affect the interpretation of that data.”
My first interview on cloud sources as discovery targets turned up surprising frustration from the savvy eDiscovery Counsel for a national plaintiffs firm. I expected to hear about immature collection capabilities and defendant’s who struggled to preserve or collect from Office 365, SalesForce or other cloud systems. I did not expect that requesting parties might be completely in the dark about where a production comes from or how it was collected. eDJ’s consultants have had too many recent engagements supporting the evaluation or migration of email and files to the cloud to doubt the trend. Microsoft has been touting the rapid adoption of Office 365 with corporate and public sector verticals. Many corporations seem to have moved critical ESI to the cloud without a clear plan to meet eDiscovery and Information Governance requirements.
by Barry Murphy
Indications are that eDiscovery solution purchases are about to become more strategic in nature. A decade ago, it was not uncommon to see non-competitive bids for eDiscovery business because so many purchases were reactive and made under intense time pressure. In the past several months, however, the inquiries from clients have become more intelligent and more specific – a sure sign that folks are getting ready to make more strategic investments in software and services.
An area of great interest for me is international eDiscovery. I spent quite a bit of time in Europe in the mid-2000′s doing forensic collections and onsite projects as well as serving the first couple of years on the Sedona International Working Group (WG6). It was my experience that when dealing with data privacy issues in the EU, once we negotiated the model contract (after we included local counsel, of course), it was fairly easy to bring the data back to the United States and manage the workflow outlined by the EU governing bodies. I’m over-simplifying the process and legal issues, but at least there was a path defined in the EU. Amazingly, I have never worked on a project where I was required to go to Asia, but I have done numerous projects in my career with CJK languages [...]
by Greg Buckles
When a client recently asked my opinion of the impact of the Dodd-Frank Act on corporate IT, I had to do that thing that consultants hate and admit that I had not even considered it. I knew that the ‘Wall Street Reform and Consumer Act’ was passed in reaction to the 2008 economic downturn, but the new requirements that I had researched all applied to my financial clients; banks, hedge funds, broker dealers or others already regulated by the SEC or CFTC. Then Dodd-Frank came up in an analyst briefing with a provider who was eager to burn analyst credits to get our perspective. That was enough for Babs Deacon and I to subject ourselves to large chunks of the 2,300 page law signed July 21, 2010 as well as an incredible array of secondary analysis scattered amongst the 13.3 million Google hits. The lack of blogs, reports or articles that actually applied to non-financial corporate IT gave the initial impression that the majority of public corporations were off the hook. Then I found an SEC statement that described the Act as “a framework that will support an entirely new regulatory regime”.
The preliminary results of eDJ’s Legal Hold Notification 2013 Survey are in. The survey shows that 45% of the 106 respondents rated their procedures “mature” for issue and release of legal holds. However, only 23% of respondents indicated that they have mature audit and reporting capabilities. I have preached many times that “you can’t manage what you can’t measure” and if that is true, where does that leave legal professionals who cannot audit or report on the efficacy of their legal hold programs? I call this kind of method, “Legal Hold Lite” because, unfortunately, it is often strong enough to withstand a little bit of pressure, but too weak to handle any serious stress on the system. Organizations whose system is in the Legal Hold Lite category are generally going through the motions and simply “pushing buttons” without paying a [...]
Fresh from getting off the plane from NYC and a day to get my laundry done, I hopped on a plane to Los Angeles to attend my first LegalTech West conference at the Westin Bonaventure. I hadn’t been to the Bonaventure in about 10 years and was glad to see the upgrades they recently made. I was in town to moderate the ARMA Big Data track of the conference. We had three sessions covering several different aspects of how Big Data trends are impacting corporations and law firms. With me throughout the day were three excellent panelists: Eric Hunter (Bradford Barthel), Helen Streck (Kaizen InfoSource), and Cary Calderone (Dred Law Blog & Sand Hill Law). One of the things I really enjoy about moderating panels is that I learn so much from engaging with people (both panelist and attendees) with [...]
by Barry Murphy
It has been a topic du jour, but social media discovery does not seem to be gaining the mindshare one might expect given the explosion in usage of social media. Almost 65% of respondents in eDJ’s social experience survey indicate using external social networks (e.g. Facebook, LinkedIn, Twitter) at work. I will not go into the litany of case law regarding the discoverability of social media in criminal and civil litigation. There are many JDs out there more qualified to dig into precedents and what they mean. Suffice it to say that social media is potentially discoverable and ignoring it could lead to sanctions, adverse inferences, and higher than expected eDiscovery costs.