Essays

When you consult on discovery issues, you cannot avoid running into retention management initiatives, no matter how hard you try. One of the first Interrogatories on almost every matter asks for a copy of the corporate retention policy and supporting documentation concerning record systems. The problem is that records are no longer boxes of old files kept in offsite storage. In the modern business environment, every piece of ESI has the potential of being considered a ‘record’ or at least evidence. One of my more frequent client conversations starts with, “We need to have a system to apply retention periods so that I can get rid of anything that I do not absolutely need.” Counsel views the seas of unstructured ESI as potential evidence that will cost $1-3 per item to review. So the motivation behind legal’s push for retention management is to reduce discovery cost and risk. The actual goal is to destroy non-record ESI as fast as possible. To that end, I have come to the conclusion that trying to define records and apply retention periods is tackling the problem from the wrong end of the equation. A program of ‘Destruction Management’ that categorizes and destroys non-records seems to be a much more practical initial step toward overall information lifecycle management.

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.

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.

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.

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.

Transparency – it’s a word we hear often now. Merriam-Webster defines the term transparent as being “free from pretense or deceit,” “easily detected or seen through,” or “readily understood.” The Obama Administration talks about transparency and government; about how government should be accountable and able to share information about its operations with the public. The FRCP Amendments aim to hold organizations accountable for transparency, for being able to share information when required. And, we at eDiscoveryJournal aim to enforce transparency within an industry shrouded in complexity (and peppered with non-standardized terms and phrases).

Migrated from eDJGroupInc.com. Author: Barry Murphy. Published: 2010-04-05 12:16:23Format, images and links may no longer function correctly. From time to time, you get asked a question so many times that it makes sense to just go find the answer.  If only it were that easy, but I’m going to try.  Lately, I’ve been asked about the need for forensic collection a lot.  Organizations want to [...]

eDiscoveryJournal will be at the AIIM Expo from April 20-22, 2010. The conference will highlight how information management professionals can take leadership roles in eDiscovery initiatives.

I had a chance to speak with Lance Sloves, a Director at Computer Forensic Services, Inc. about forensic collection. He points out that, first, it’s fairly rare for any organization to have well-rounded or proper policies and processes in place for good, defensible collection – that is just the way it is. Second, few organizations possess the expertise in proper data and forensic collection that is required in today’s eDiscovery market. The fact is that many litigators are getting smarter and smarter about collection – and some can smell blood when something has not been properly vetted. And I’ve yet to meet an IT manager who relishes the thought of being an expert witness.

In Part 1, I outlined the typical litigation profile questions that would support a realistic needs assessment for a solo attorney or small firm. From a the set of requirements, we explored the basic software packages through the EDRM lifecycle while calling out small firm perspectives. In the intervening weeks, I have tried to track down and get hands on new applications and SaaS offerings that might meet my challenge criteria. The nice folks at QD Documents got me a trial license for their $500 package. The product definitely gives a solo attorney the basic organizational space to code in documents, exhibits, transcripts, filings and all the other working pieces of a matter. Unfortunately, it is really just a nice, clean document tracking and management space, rather than an eDiscovery processing platform. I suppose that you could put URL links in field for native files, but that just feels too much like Concordance. So a good, cost-effective case management tool, but not an answer to my challenge.