Essays

When we talk about metadata for native ESI, we are usually concerned about the Operating System (OS) fields that are kept in the File Allocation Table (FAT). Different OS formats support a wide variety of fields such as different dates, attributes, permissions and file name formats (long vs. short). These fields are not usually stored within the actual file and so are very vulnerable to alteration or complete loss when items are read or copied. Forensic collection is focused on preserving this ‘envelope’ information so that evidence can be authenticated and the context reconstructed in court. That is only half of the metadata story. Microsoft Office and other programs retain non-displayed information within the header and body of all common file types, especially with the adoption of the XML based Office 2007 file formats.

In his earlier journal entries – Inside of Automated Review Part 1 and Part 2 – Greg Buckles explored the practice of using content analysis software to enable a level of automate for document review. The growing trend to let software create clusters of content by concept and other analytics in an effort to decrease massive review costs in a good indication that automation is here to stay.Thankfully, I’m seeing more and more indications that content analytics are becoming accepted in the information governance community. At LegalTech, I participated in a panel and one of the questions I received was how organizations can better proactively manage information in order to make eDiscovery as efficient as possible. My answer was to use auto-classification to go through legacy content and identify potential records, knowledge assets, and other retention-worthy content. This answer was the topic of debate, with some folks thinking that auto-classification will never stand up in court or is simply not advanced enough to work. Others feel that there is no way to effectively classify information manually and therefore auto-classification is inevitable.

The legal community is just coming to grips with the implications of native files and their metadata. I like to think of this as the content vs. context of ESI or the letter vs. the envelope in communications. Parties and courts are still arguing about how to handle, track and present multiple copies of the same item collected from different locations. Now we move that content into a dynamic environment with multiple, simultaneous ‘custodians’ that may contain historical versions, associated commentary, workflow and more. It is any wonder that many corporations have tried to define restrictive acceptable usage policies and implement net filters to limit user access to Facebook, Twitter and more from the enterprise?

Microsoft SharePoint provides many business benefits and its usage has exploding and is growing further. But, as is often the case with new, exciting business tools, eDiscovery is an afterthought and becomes very challenging. It's only a matter of time before the challenges with forensically collecting SharePoint information hit the headlines. There are tools out there to address SharePoint eDiscovery management, but each take different approaches and buyers must beware.

In Part 1, we explored changing face of internet and intranet collaborative communication platforms and the increased risks posed by outdated policies and technologies. My main concern over these systems is the unreasonable expectation that a typical corporate custodian could preserve relevant ESI stored in Sharepoint or another cloud based system. Despite recent rulings emphasizing written Hold Notification, most users simply do not have the tech savvy, rights or proper tools to either make a complete preservation copy or secure the items in place against expiry or accidents. That shifts the onus back onto Legal to effectively preserve these dynamic data sources.

Information governance is simply a new perspective - a conservative one - on information management. It's about managing the risk inherent in creating and using information assets within an organization.

The first two journal entries on autocoding definitely resonated with the market and generated a lot of on/offline responses. One of those responses was a call and subsequent briefing from my old colleagues at FTI Technology on their latest offering, FTI Acuity. [EDITOR’S NOTICE– Greg worked at Attenex prior to the FTI acquisition.] A quick visit to the FTI site leads one to believe that Acuity is just a packaged services-hosting offering with a fixed per-GB or per-Document pricing model that they term Integrated Document Review. DiscoverReady was one of the first Attenex partners to offer fixed-fee per document review pricing back in 2005. The FTI materials barely mention the new predictive coding and quality control functionality that has been added to the Ringtail-Patterns platform.

I was recently asked what training and certifications could help an attorney looking to break into contract work on eDiscovery projects. This is an attorney that has practiced for 20 years , but she still felt the need to put some technical alphabet soup behind her JD. The questions mostly focused on which software and what level of training would demonstrate overall competence. What it takes to ‘break in’ as an independent is a good topic for a full article, but I will start with my perspectives on software, training and certifications as they exist today. Although contract attorneys are primarily used as reviewers, I am going to assume that an experienced attorney or other professional wants to take a case or project management role for a corporate or law firm client. This role has traditionally been filled by the service provider, but with corporations insourcing discovery and firms taking more fixed fee engagements, I can definitely see a potential niche market for someone with the right skills.

o, what does it mean to take eDiscovery in-house? The way I see it, the movement in-house consists of the acquisition of tools for information management, identification, collection, preservation, processing, and some element of review and analysis (the left side of the EDRM) and active participation in managing the cost of review.

The 2009 economic downturn created a boom in the offshore review industry. The cost of review still dominates the eDiscovery lifecycle and is the top target for budget conscious corporate legal departments. Corporate counsel tends to start with the actual hourly wages of reviewers because that does not change their current workflow. Some work with pools of contract attorneys to bring the hourly rates down to $25-$80 per hour. But this still requires outside or inside counsel to manage the review and invest in the review platform to host the data. Outsourced service providers have traditionally handled the large, multiparty matters and supplied both project management as well as offshore contract reviewers. This is the root of the new Legal Process Outsourcing (LPO) service model. Integreon, one of the largest LPO players, announced that it had been named in a writ for unlicensed practice of law to the Madras High Court in India.