Essays

In my consulting practice, I frequently work with corporate legal departments to select and prepare their designated ‘IT Custodians’ who will have to sign affidavits and may be deposed/testify as a Rule 30(b)(6) witness. Historically, these designated subject matter experts covered accounting systems, business practices and other complicated areas relevant to the issues at the heart of a matter. The enterprise ESI lifecycle itself has become so complicated that every preservation or collection request may now require a translator to effectively communicate all the implications of system configurations, user actions and discovery technologies on the scope and format of response efforts.

While at the recent EDRM 2010 Kickoff meeting, I was able to get a guided tour of the newly released Relativity Six from Andrew Sieja (CEO) and his team. Having several clients who have standardized on the kCura platform in the last year, it was definitely interesting to see the new features and product direction. I will not try to walk through every new bell and whistle here, as your favorite sales rep is more than happy to dive into that level of detail. Instead, I will try to give you the high level points. Andrew’s goals for this release included improving the analytics integration, review workflow, ‘ECA’ functionality and to extend the platform with a new API. Calling out ‘Early Case Assessment’ drew a spirited round of critical debate on the dubious validity of the term in light of the overuse in the discovery market. Despite the call from George Socha to ban the term from the sales cycle, I can see how cKura’s new Relativity Pivot feature supports many of the typical scope and liability assessment scenarios. The overall goal seems to be a more integrated and mature interface for case managers and power users to automate workflow and extract collection profile characteristics.

There is a great article from Christy Burke of Burke & Company about the eDiscovery disaster that could arise from the BP oil spill. Christy's article is detailed and comprehensive - a must-read for anyone wondering about the eDiscovery implications for the broader market and how to plan for some of those issues. From an information governance perspective, there are some quick takeaways I'd like to list (because this is yet another example of how proactive planning could avert the potential eDiscovery nightmares that can arise from extreme situations like this one):

One of today’s stories from the eDJ (eDiscoveryJournal) news engine reminded me of that first email review. The contract paralegal used the firm email system to complain about a festival and was subsequently sacked for her temerity. I used to call this the ‘5,000 to One Rule’. The first time any corporation attempted an in-house review of journaled or restored email, we would see at least one employee fired or disciplined for every 5,000 email reviewed.

Since the amendments to the Federal Rules of Civil Procedure (FRCP) went into effect in December 2006, organizations have struggled to effectively manage information in a manner that makes eDiscovery efficient. There was an assumption at the time that we could just extend records management policies to the rest of our information and solve the problem that way. But, records management is complex; corporate file plans are often well over 1,000 categories deep – how can employees be expected to classify every single document, email, or other information asset into a file plan category? The key is to make reasonable efforts to set retention policies for all content, and let records be classified by the experts into the file plan.

Traditional discovery search applications like dtSearch and processing packages like Clearwell are usually offline while new collections are being indexed. Litsupport and legal personnel are used to being confident of the collections being searched at that moment. If you add new ESI to your matter, then you need to update the index before your search, right? But now that there are tools for searching ESI where it lives on live corporate servers and desktops, we introduce a relatively new wrinkle into search, index lag. Enterprise and desktop search engines run in the background and watch for new, deleted or changed files within the scope of folders that they are watching. The problem is that index updates are never instantaneous, which means that enterprise wide searches are never 100% complete.

In May, 2010, Piper Jaffray & Company was sanctioned $700K for failure to preserve emails. The company was fined $1.65 million in 2002 for the same issue. At that time, the company implemented new archiving procedures and software in order to ensure that the same mistake would not occur. I take two things out of this story. First, it could be that the lower fine for this infraction is due to recognition that a good faith effort to retain information was in place. And second, archiving technology by itself is not enough to ensure that all necessary information can be preserved.

FTI Consulting has joined the ranks of companies offering a solution specifically targeted at collection and preservation of Microsoft SharePoint information.

Recent discussions on Debbie Westwood’s Small Firm eDiscovery LinkedIn group have revolved around the results of the 7th Circuit’s pilot program to reduce eDiscovery costs. The focus of this program seems to be actual discussion at the Rule 26(f) Meet and Confer instead of the usual bilateral sets of demands that are misinterpreted or poorly translated back to the technical teams. The program reflects the ongoing efforts of The Sedona Conference® Cooperation Proclamation to “reverse the legal culture of adversarial discovery that is driving up costs and delaying justice”. This effort to make all the attorneys ‘play nice’ with each other does not address one of the critical assumptions that has crept into civil litigation as a whole. That is the assumption that only attorneys can or should directly communicate between the parties once litigation is filed.

One trend bubbling up recently is the need to control social networking content (e.g. Twitter, FaceBook, and LinkedIn) for compliance and/or eDiscovery requirements. The stories indicating this trend come from both the solutions side and the real-word side of things.