Essays

The phrase ‘digital landfill’ seems to resonate with clients. Most have been in a state of analysis paralysis concerning email and native file destruction since the 2003 Zubalake decision. Many have never had any kind of real retention policy or workflow that would enable or encourage users to clean up their digital trash. Yep, I just called all those spreadsheets, presentations, reports and other ESI flotsam and jetsam cluttering up your NAS trash. The combination of the 2002 criminal Enron investigations and Judge Scheindlin’s decision effectively froze record destruction in energy trading companies. At the time, I thought that the combination of plummeting storage costs and the potential of criminal charges from the 2002 Sarbanes-Oxley Act meant infinite retention for public corporations. Time and common sense disproved that notion, but I am now seeing corporations flinching from the last decade’s worth of digital debris littering their enterprise landscape. The user’s capability to create ESI far exceeds our ability to effectively categorize, manage and expire.

A common theme through products making the jump from processing engine to eDiscovery platform is the bolting on of a legal hold notice module or wizard. Hold notices are the official kick off of the eDiscovery tailgate party. When I created the first incarnation of the eDJ Tech Matrix back in 2009, only Atlas (now acquired by IBM) and Exterro offered a full featured workflow with a database back end. Some of the matter management players could send emails, but none had any market recognition for that limited functionality. I had many corporate clients consider these relatively high priced specialty applications, but only those with relatively heavy litigation/regulatory profiles or very low risk tolerance implemented them. Many of my corporate clients created home grown workflows with a single web, Sharepoint or SAP-type developer. Still, these two specialty players both gained steady market share and added rich features to support corporate legal management of preservation efforts. Just in time for Legal Tech NY 2011, I saw the basic hold notice workflow show up in AD eDiscovery, kCura Method, StoredIQ, Guidance EnCase eDiscovery and many more. A quick check of the eDJ Tech Matrix shows 25 products with legal hold notice functionality today and I will bet that this blog reminds several more to update their listings.

According to Wikipedia, a seanchaí is a traditional Irish storyteller/historian. A commonly encountered English spelling of the Irish word is shanachie. All lawyers need to be able to tell stories to convey facts and explain concepts. They do this for judges, to juries and occasionally among clients. For such a task, there’s no better preparation than kissing the Blarney Stone.

Migrated from eDJGroupInc.com. Author: Kevin Esposito. Published: 2011-03-21 12:00:14  The children’s song “Do Re Mi” starts with the line “Let’s start at the very beginning, it’s a very good place to start”.  What seems like a standard concept even for children is anything but when operating in the world of eDiscovery.  In many engagements, we’re brought into the mix long after work has started [...]

Greg Buckles’ recent post on legal hold notices reaching eDiscovery platforms hinted at something that I believe many organizations will be doing this year – connecting legal hold process management with execution of collection and preservation activities. While this would seem an obvious and not-so-revolutionary next step, it’s one that is not easy to implement and not necessarily specifically called for in any rules governing the practice of eDiscovery. Thus, I sense hesitation on the part of some practitioners. But, I believe the process management and IT benefits of making the connection will ultimately start to win out this year.

I try to read the actual opinions on cases that providers seize onto. Many times the actual fact pattern and conclusions are subject to interpretation. More importantly, there are often little facts or findings that are fascinating. In the case of Rosenthal Collins Group, LLC v. Trading Techs. Int’l, No. 05 C 4088, 2011 WL 722467 (N.D. Ill. Feb. 23, 2011), I chased down this rabbit hole to figure out exactly who had reset the last modified dates and why. The summaries all mention the plaintiff’s “agent” and I expected to find a service vendor, IT contractor or even a hard up consultant in the actual opinion. Instead, I found a tech savvy programmer/contractor/custodian who used utilities to forensically wipe all of his media and then reset his dates by changing his system clock. Bill Tolson’s blog title, Spoliation does not require purposeful destruction of evidence, focuses on District Judge Coleman’s $1,000,000 sanction and clear statements that the plaintiffs were responsible for their agents actions.

Lately, it seems like predictive coding is all over the eDiscovery blogosphere. The most recent example is Ben Kerschberg’s entry at Forbes.com law and technology blog. When we wrote about the topic last fall, a majority of readers believed that predictive coding was not defensible. I took a new look at the data on our poll question and found that attitudes are evolving.

Email is everywhere. We are seeing a lot of corporate clients making the transition from preservation notices to actual preservation/collection systems. Whether using an email archive, collection appliance or search software with connectors into Exchange, the IT administrators tend to interpret Legal’s custodial preservation request very literally. They still see email in the Mailbox model. When assessing the existing preservation process (if any), I almost always find gaps and unmanaged sources that slipped through the net. Public companies that have been around for more that 3-5 years have gone through M&A activities, RIFs, bankruptcies and other corporate wide reorganizations that leave ESI skeletons in the corporate closet. I have blogged recently about the tendency to create corporate digital landfills, but the recent string of preservation sanction cases has reaffirmed the need to know where your email hides.

One of the first instructions that IT practitioners will hear from the legal department is “preserve everything”. It doesn’t matter what the context is or whether the information may or may not be relevant, at the first pass a lawyer will always tell you to preserve everything in sight. The problem with preserving information is that preservation is only half the battle – you need to be able to make use of it somewhere down the line and that’s a fact that sometimes gets lost in the shouting.

Internal retention battles are a good way to torpedo even the most defensible position in litigation. Preparing a cross functional team for working together at the start of a matter will pay dividends – both figuratively and literally – later in the case. As has been previously discussed here, “the beginning” is rarely where these teams are pulled together. The key to success is to determine an appropriate path no matter what stage of the matter you’re pulled in at. Taking inventory of your data and thinking about current and future retention possibilities helps to provide a framework for future decision making.