The Letter of the IT Law

Lawyers may have been the only ones paying attention, but it's been just over a year now since the Federal Rules of Civil Procedure (FRCP) amendments on e-discovery went into effect, necessitating that companies take appropriate steps to improve how they respond to e-discovery requests, which basically refers to the methods by which electronically stored information is exchanged during a litigation process. The numbers from a recent survey on corporate e-discovery by on-demand archiving provider Fortiva show a rising problem in managing this information, as well as a rising number of resources devoted to solving it.

E-discovery case law trends beginning to emerge | WTN

Erik Phelps doesn't particularly like being the bearer of bad news, but as a business attorney for Michael Best & Friedrich, he often sounds like the old commercial slogan: “You can pay me now or pay me later.”

And with the number of e-discovery cases picking up dramatically - a recent monthly Lexis Nexis report included nearly 25 e-discovery cases - the longer you wait to craft sound policies and processes, and effectively communicate them, the more you will eventually pay.

Businesses Generally Ignoring E-Discovery Rules

A year and 16 days after the institution of the revised Federal Rules of Civil Procedure on Dec. 1, 2006, about two-thirds of U.S. businesses remain unprepared to meet strict court requirements for the discovery and handling of electronic evidence, according to a data storage researcher.

U.S. Companies Lack E-Data Strategy

A year after the Federal Rules of Civil Procedure e-discovery overhaul, a pair of corporate studies has concluded that fewer than half of U.S. companies have a clear strategy for managing electronically stored information and only a fraction of information technology managers have addressed the issue."

Chief Execs in Firing Line Over E-disclosure

Companies are advised to have electronic data policies to manage the storage of information to aid e-discovery in case of disputes or court cases. Both the chief executives who bear responsibility for compliance and many legal departments who implement policies are not knowledgeable enough, according to a survey by e-discovery specialists Kroll Ontrak.

"Clearly in the UK, in-house counsel and their external counsel are lacking significantly in their training and understanding of rules and regulations regarding their electronic information," said Martin Carey, managing director of Kroll Ontrack in London. "They do not yet seem to be grasping the fact that all this data is no longer just information; rather it can now all be considered as evidence. This fact alone shows a severe lack of ownership and understanding."

Learning EDD From the Mistakes of Others

Keeping up with the subject of electronic discovery is a lot like following the latest developments in the lives of Britney Spears or Lindsay Lohan: every week a new story and never good news. But just as we can live and learn vicariously through the missteps of the rich and famous, so can we learn from the facts through which the early years of electronic discovery jurisprudence is evolving. There have been hundreds of cases officially reported and/or discussed in the mainstream media since last December, when the amended Federal Rules of Civil Procedure became effective, but the decisions discussed below are particularly illustrative of the most prevalent issues confronting the management, collection and production of electronically stored information (ESI).

Electronic Discovery in Europe: A Different Story

During the last decade, lawyers faced with the novelty of electronic discovery have reacted in different ways. Some lawyers have mastered it, some have become reasonably conversant with it and some have just added it to the list of things they know they don't know. However, there is an aspect of e-discovery that even the most experienced practitioners may not even know they don't know: the complexities of e-discovery in the international setting. This article gives a brief overview of issues that can arise in connection with international e-discovery, in particular those relating to data protection regimes, the technical requirements for processing data from other countries and other issues that may arise in the collection and review process.

Seagate Buys E-discovery Company

Storage vendor Seagate Technology said Thursday it plans to buy MetaLINCS, an e-discovery software firm. The vendor's move follows Iron Mountain's purchase earlier this year of Stratify, which is also focused on e-discovery.

MetaLINCS' technology will provide Seagate Services Group with an analytics engine complementary to its existing offerings for data archiving, recovery, and collection, the company said.

Seagate didn't disclose the deal's financial terms.

CIA Tape Destruction Offers Cautionary Tale for CIOs

The recent revelation that the U.S. Central Intelligence Agency destroyed videotapes of interrogations of two terrorist suspects may offer a timely reminder for CIOs at private companies in the U.S. tasked with electronic evidence preservation rules since last December.

The e-discovery rules -- amendments to U.S. courts' Federal Rules of Civil Procedure -- don't apply to the CIA. But the agency's decision to destroy videotapes showing harsh interrogation techniques may teach private companies how not to handle evidence, some e-discovery experts said.

The e-discovery rules require U.S. companies to keep electronic records when they're faced with a civil lawsuit or the likelihood of a lawsuit. In effect, what this means is that companies should archive e-mail and other electronic records, said Ralph Harvey, CEO of Forensic & Compliance Systems Ltd., an e-mail archiving vendor based in Dublin.

FRCP and E-discovery: One Year Later

This week marks the first anniversary of changes to the Federal Rules of Civil Procedure (FRCP), which mandates the speedy recovery of electronically stored information. In the intervening year, oodles of vendors have tweaked their archiving products to meet the requirements of the FRCP, adding search and rapid retrieval capability, as well as the ability to audit operations.

In the next year, Mary Mack, technology counsel for FIOS, expects that e-discovery will be bolstered by two events: the subprime mortgage crisis and the Qualcomm vs. Broadcom suit. She talks about the impact of these events here.

Autonomy Boost For E-discovery

Search giant Autonomy has launched a new document preservation tool, designed to help IT managers and legal teams in their e-discovery and compliance efforts on client devices.

Developed by the firm's Zantaz subsidiary, Desktop Legal Hold works by monitoring and locking down any relevant information including emails, PDFs and instant messages, across mobile devices such as laptops, USB devices and smartphones.

Houston Computer Forensics Firm Launches Partnership with Private Investigator to Uncover ‘Infidelity Secrets’ for Clients Facing Divorce

A Houston computer forensics firm has joined forces with noted private investigator Otis Owens to help desperate married clients find an answer to the painful question:

“Is my husband (or wife) having an affair?”

The new alliance between Owens and eDiscovery Forensics, Inc., “allows us to better service people who are going through the agony of a divorce,” says eDiscovery co-owner Gary Huestis. “We get to the truth by using the 21st century science of computer forensics – the recovery of deleted, damaged and otherwise hidden computer information,” says Huestis.

Measuring the Wealth of Backup Tapes

If wealth were measured in the content on backup tapes, few companies would know the extent of their riches until litigation ensued. With Index Engines' eDiscovery Platform, e-discovery providers and companies can know the wealth in tapes without going through the expense and labor of extracting the content from them.

Index Engines' Enterprise E-Discovery Platform strips data from tapes and archive files without the need to extract the data into its native format, indexes the raw data, and provides a Google-like search engine to find data relevant to a discovery request. This will save you time and labor in e-discovery and keep your tapes safe and secure in-house, without the need to send them to a third-party service provider.

One Year Later: Kroll Ontrack Reveals the Most Significant Electronic Discovery Cases under the New Federal Rules of Civil Procedure

As the one year anniversary of the amended Federal Rules of Civil Procedure (FRCP) approaches, Kroll Ontrack®, the industry’s largest provider of electronic discovery and computer forensics services, today announced a breakdown of the reported electronic discovery opinions from 2007 as well as a list of the year’s top five most significant discovery cases. Focusing primarily on interpreting the new FRCP, common topics reoccurring in judicial opinions issued in 2007 included: the importance of early case conferences, the accessibility of electronically stored information, and what to do when parties fail to play by the new rules.

10 Critical Decisions for Successful E-discovery

Today’s explosion of electronic data, coupled with the December 2006 amendments to the Federal Rules of Civil Procedure (FRCP) concerning electronically stored information (ESI), requires information and legal professionals to expand their knowledge about handling electronic discovery.

There are many opinions about how ESI should be planned for, managed, organized, stored, and retrieved. Some of the available options are extremely costly in terms of their required financial and time commitments. Constantly changing technologies only add to the confusion. One area of confusion is the distinction between computer forensics and electronic discovery; there is a significant difference.

Keeping Up With EDD Blogs and Tools

As I wrote last month in the first half of this two-part column, no lawyer today can afford to ignore electronic data discovery. No matter the case, digital data is likely to be implicated. That means lawyers urgently need to understand EDD and keep abreast of developments in the field.

In last month's column, I looked at some of the more useful Web sites for learning about and keeping current with this essential area of practice. This month, I survey blogs about e-discovery and look at some vendor sites that include useful resources.

E-Mail Archiving: 'No CFO Wants To Go To Jail'

E-mail archiving and electronic discovery are no longer a best practice for a select few companies. IT departments need to get their e-mail records in order.

E-mail archiving has become a high priority amid growing regulatory requirements for better electronic record keeping. "E-mail and electronic documents have become business records," says T.M. Ravi, co-founder and CEO of four-year-old Mimosa Systems, developer of e-mail archiving software for Microsoft Exchange environments. "They need to be kept over time and be searchable."

Digital Docs Raise Compliance Issues

Many tools exist that can help companies manage electronic documents in compliance with court rules, but some attendees of an electronic discovery conference this week said they don't trust all the technology.

Several technologies, such as e-mail archiving software, can help reduce risk and manage costs associated with e-discovery rules, vendors and other advocates said Friday at the Advanced E-Discovery Institute at the Georgetown Law School in Washington, D.C.

Examining Hard Drives During Discovery

Over-stuffed file cabinets that hold business records and personal information have been replaced by compact computer hard drives that offer easy and convenient storage of and access to a variety of items, including correspondence, forms, memos, photos, account information and Internet transactions.

As a federal district court judge recently observed, a computer itself is not evidence in most cases, but merely the instrument for creating evidence (like a typewriter) or the means of storing it (like a file cabinet).

Accordingly, today's litigants routinely seek access to opponent's computer hard drive to search for discoverable evidence, especially when the opposing party may not be forthcoming about deleted or transferred files.

Discovery is Becoming More Important

A growing majority of business records for most organizations are stored in e-mail data stores. That means that organizations that are sued or that want to undertake legal actions need to be able to access this information, understand what the data says, extract the relevant data and put it into a form that is usable for decision makers, legal staff and others.

The fundamental problem, however, is that e-mail data stores are huge. Given that there are hundreds of megabytes in each user’s mailbox, there are hundreds of gigabytes or terabytes of data in backup systems or archives, and all the data that is stored locally or on mobile devices, discovery can become a very thorny problem.

A Proactive Approach to E-discovery

In December 2006 the U.S. Federal Rules of Civil Procedure were amended to address electronically stored information, with the result that ESI is now subject to discovery, meaning it can be requested as evidence in court cases.

Most corporate legal departments understand these changes, but many company management teams and departments that create and manage ESI may not be aware of their exposure should they get involved in litigation. The consequences of not creating a proactive electronic discovery (e-discovery) process can be fines, unfavorable judgments and increased operating costs. All of these can result in diverting attention from running the business, as well as costs in money, time and corporate reputation.

e-Discovery Coming to the Fore

The number of large corporate frauds in India hasn't reached the alarming heights it has in the West. Nor are regulatory requirements, introduced in the wake of huge financial scandals, as strict. But then, the world is flat. It mayn't be long before Indian companies find themselves vulnerable.

According to a recent survey by the Economist Intelligence Unit, four out of five businesses worldwide have been the victims of corporate fraud at an average cost of US $1.1 million within the last 3 years. One in 10 large companies lose more than US $100 million each year from corporate fraud. All this underscores the importance of e-discovery.

Complex Cases Often Depend on Electronic Evidence Organizers

Deborah Burk showed how effective litigation support technology can be in a dramatic “gotcha” moment during the 17th day of the Peregrine Systems fraud trial, a Tuesday morning in May.

VideoTrack owners Deborah Burk and Shayne Davidson stood in the mock courtroom where lawyers practice presentations. The control room has a one-way viewing window for observers. Under questioning by a prosecutor, Peregrine's former assistant controller, Denise Mastro, described how she helped others falsify the San Diego company's 2001 financial statement.

EDD Demands Set Global Trap

Intellectual property litigators are, by their very nature, interdisciplinary creatures who weave together different strands of the law to effectively advocate for their clients. Lately, however, the fabric of successful litigation has gotten a little more frayed by the pulls of globalization, e-discovery and data protection.

On Aug. 24, the U.S. District Court for the Central District of California affirmed a critical May 29 discovery decision by the magistrate judge in Columbia Pictures Industries v. Bunnell. While this decision has received much attention in e-discovery circles, the court's ruling on random access memory has overshadowed a larger lesson about international e-discovery and the impossible decision that may face IP litigators: to choose between potentially violating the law of a foreign country and risking discovery sanctions at home.

Group Creates Standard to Ease E-discovery Data Transfer

The Electronic Discovery Reference Model standards group today unveiled an XML-based standard that it says will allow documents transfer through the systems of multiple vendors during the various stages of e-discovery.

The new standard defines metadata of e-mail and files for simplified transfer to and from applications that are used as part of an e-discovery process by businesses, service providers and outside legal firms, said Kurt Leafstrand, a spokesman for the two-year-old standards group.

E-Discovery Looks Like Risky Business

One of the major points made in Ray Kurzweil's magnum opus, "The Singularity is Near: When Humans Transcend Biology," is that the rate of change is accelerating at an exponential rate. While his point relates to the fields of computing, genetics, nanotechnology and robotics, the same can be said about the exploding field of e-discovery. EDD presents the legal profession with a panoply of new risks which must be addressed by bench and bar alike.

Electronic Files Are Fair Game in Discovery Phase

Computers and new technology may have simplified and streamlined many aspects of businesses, but electronic documents (in their various forms) have become a potential legal and operational pitfall that could be extremely costly to the uninformed.

That assessment and caution comes from three St. Louis attorneys whose practices concentrate on electronic legal documents, and from a law professor at Saint Louis University. They've all discovered that the phase of litigation known as "discovery" now routinely includes electronic discovery. In fact, it's not only included, it's required automatically.

Lawyers Call for Clarity on E-discovery and Training for Judges

With the amount of electronic evidence growing rapidly in litigation cases, a survey by KPMG Forensic amongst 100 litigators in 22 leading UK-based law firms has found that there are widespread concerns about ambiguity in the e-disclosure rules, and that 50% of those surveyed believe judges and masters should be trained on the difficulties routinely faced in an e-disclosure exercise.

The research, carried out on KPMG Forensic’s behalf by Ipsos Mori, found that overall 48 percent of those surveyed believe that judges and masters are ill-equipped to make effective e-disclosure case management decisions. Amongst those litigators more heavily involved in e-disclosure, this rises to 71 percent.

FAQ: Changes to the Federal Rules of Civil Procedure Affect Storage Plans

If you’re an IT professional who’s also interested in legal affairs, there has never been a better time to blend the two worlds. With the amendments in December 2006 to the Federal Rules of Civil Procedure (FRCP), IT has become inextricable from the discovery process of corporate litigation.

“IT has to be a part of most of these matters because, regardless of whether it’s sexual harassment or slip-and-fall, it all involves some level of electronic information,” says Brian Babineau, an analyst at Enterprise Strategy Group Inc.

EDD Bytes to Feed Your Firm's Knowledge

Last December's revisions to the Federal Rules of Civil Procedure, addressing discovery of electronically stored information, underscored the fact that no lawyer today can afford to ignore e-discovery. No matter the case, no matter the court, digital data is likely to be implicated.

That means lawyers urgently need to understand electronic data discovery and keep abreast of developments in the field. In this month's column, the first of two parts on EDD, we look at some of the more useful Web sites for learning about and keeping current with this essential area of practice. Next month in part two, we will survey EDD blogs and look at some vendors' sites that include useful resources.

Defuse Firm Fear and Disarm EDD Vendors

There's no question about it, electronic data discovery is generating huge revenues for vendors and gigantic headaches for corporations and their lawyers. There's outright fear and confusion as everybody struggles to understand -- and corral -- this critical litigation technology.

When Law Technology News first introduced our EDD Showcases in 2002, we scoured the Web and came up with 55 vendors. Just five years later, there are more than 600 providers. And the money is breathtaking: The 2007 Socha/Gelbmann EDD Survey, released in August, pronounced that EDD is now a $2 billion business -- that will double by 2009.

Multinationals Take a Global View of EDD

Information technology has undeniably become a key element of most business organizations, supporting both the primary methods of communication and the means of processing and storing vast amounts of proprietary information. The application of technology systems to the day-to-day activities of business has naturally caused electronically generated and stored information to become a primary target for litigation discovery requests.

In response to what are now commonplace requests for discovery of such information, the Federal Rules of Civil Procedure have been amended to include specific provisions relating to discovery of electronically stored information. This change, along with the growing body of case law concerning electronic discovery, reflects the legal community's effort to catch up with the rapid progress of technology.

Attorneys Face Nine Critical Challenges in Being Prepared for Legal Discovery

While a clear majority of corporate and law firm attorneys highly agree that having a functioning electronic discovery strategy in place provides essential business benefits, 92 percent of the attorneys admitted that their company is vulnerable when it comes to being prepared for electronic discovery.

These are just a few of the key findings highlighted in a comprehensive survey report issued today by Oce Business Services. "Dawn of the Discovery-Ready Enterprise" takes a close look at nine critical challenges corporate and law firm attorneys are grappling with in order to deal with the growing tide of electronic discovery.

HP Aims to Make E-Discovery Easier

The HP Integrated Archival Platform is a part of the company's Business Technology portfolio and is designed to help mitigate risk in electronic data discovery and compliance. It's also designed to lower costs through better use of data center assets. The new platform is designed to make a single point to manage e-discovery by providing the infrastructure and tools to store, search and retrieve e-mails, documents and images.

IT Pros Climb Out of the Basement

We all know the stereotype of the basement-office, introverted information technology worker. But some large law firms are exploding that cliche by having more and more of their IT professionals work directly -- even full-time -- with clients.

Of course, many large firms have litigation support teams that sometimes work directly with clients on discovery issues.

Wisconsin-based Foley & Lardner is one firm that takes it a step further. There, technology consultant Charlotte Logullo's time is largely devoted to working with clients to set up secure online Web sites, or extranets. In addition to housing vast amounts of data, they also allow for things like conference calls -- complete with idea "white-boarding." These days, extranets are created for all kinds of legal work.

Product Roundup: E-discovery

E-discovery has become the buzzword on everyone's lips this year, thanks largely to the new US Federal Rules of Civil Procedure (FRCP), which revised guidelines for producing electronic evidence last December. The revision means that companies that fail to produce electronic evidence in court may be granted leniency if they show a good faith effort to both preserve and produce the electronic data.

Until precedents are established by actual court cases, it remains unclear just what exactly good faith means, but in the meantime, most enterprises are trying to ensure they have documented practices in place for e-discovery purposes.

E-discovery Requires Advanced E-mail Systems

When the e-discovery amendments to the Federal Rules of Civil Procedure in the US took effect last December, there was a widespread feeling of panic among international corporations that their systems would not support the new requirements. This is not surprising, given the impact and cost implications, but it is not solely a US issue. The challenge is global, and organizations in the UK and other countries are equally at risk from failing to provide information in a timely manner.

States Move Toward the Center on IT -- Finally

Some states are moving to consolidate and better integrate their systems is to comply with new electronic-discovery legislation. For instance, the sate of Washington is deploying a unified e-mail archiving system from Symantec Corp. and later this year plans to seek bids on tools for searching the archives, said Gary Robinson, the state’s CIO. Robinson led the preparation of an “impact statement” on e-discovery that the NASCIO released last week.

Electronic Data Discovery is Hot Business

In 1987, there was one business dedicated solely to providing electronic data discovery (EDD) services. In 1992, there were about five more. In 2000, there were about 40. Today, there are over 600 offerings, or purporting to offer, these services. They range in size from very large enterprises, to one or two people.
So say George Socha and Thomas Gelbmann, two St. Paul-based law technology consultants who have studied the wildfire expansion of the EDD industry for the past five years.

Umbrella Rulings Can't Cover All Data

When is enough preservation too much? Many legal professionals cringed when Magistrate Judge Jacqueline Chooljian of the U.S. District Court for the Central District of California, held that the duty to preserve required the activation of a logging function to enable the retention of serve log data in random access memory, where the information that would be captured by that step was predictably at the heart of a highly contested copyright infringement case. See Columbia Pictures Industries v. Justin Bunnell, Case No. CV 06-1093 FMC(JCx), 2007 U.S. Dist. Lexis 46364 (May 29, 2007).

Critics charge that the decision misconstrues the intent of the 2006 electronic data discovery amendments to the Federal Rules of Civil Procedure, and presages an unwarranted expansion of data preservation requirements.

How the IT department can prep for the courtroom

The mountains of electronic data generated within today’s enterprises are colliding with ever more aggressive legal discovery practices, creating formidable IT challenges during litigation - how to best provide secure and auditable access to sensitive corporate data that must otherwise remain inaccessible to both outsiders and most insiders. More importantly, how can control be maintained without exposing more corporate data than necessary?

These decisions are best shared between the network or IT manager, corporate counsel and a litigation support specialist, who will help identify and specify the appropriate data. But it’s the IT manager’s job to ensure that data is treated gingerly; enterprises don’t spend millions on network security only to offer up the corporate jewels at the first lawsuit.

RenewData Launches Data Migration Service for e-Discovery

RenewData Launches Data Migration Service for e-Discovery: "The migration of legacy e-mails using ActiveVault conversion engine employs a legally defensible process and results in a unified archive to support e-discovery actions.

E-discovery services provider RenewData on May 21 announced the launch of a new data migration system that locates and consolidates old e-mail into a new searchable archive to create a centralized repository suitable for legal discovery.

Data Migration Services is designed to eliminate costs and risks associated with maintaining old e-mail on backup tapes or in a previous e-mail archiving system, marketing director Jake Frazier told eWEEK."

The Data Boom: Can Law Firms Profit?

Legal Technology - The Data Boom: Can Law Firms Profit?: "In the fall of 2005, a small Israeli technology startup came to San Francisco's Morrison & Foerster with a lawsuit -- and, soon enough, a problem.

The company had been mired in a contract dispute with one of its business partners, a huge American tech concern, and, unable to reach a settlement, was taking the matter to court.

The stakes weren't particularly high -- just a few million dollars. But after the case was filed, the defendant hit back with an electronic discovery request -- every relevant e-mail, Microsoft Word file, spreadsheet, you name it -- so onerous that its cost alone would take a fair chunk of any judgment.

'We saw that it was going to take several hundred thousand dollars to do this,' says Oz Benamram, director of knowledge management and Israel practice counsel at MoFo. In fact, there was nothing terribly unique about this situation. As more correspondence and information is stored electronically, e-discovery is requiring more time, and more dollars, than ever before."

Storage Tip: The authenticity of a found document

storage.itworld.com - Storage Tip: The authenticity of a found document: "What seems to be the problem? Your IT organization has put in place proper procedures for deleting electronic documents, including e-mails. So it is no surprise when as a result of litigation your e-discovery process cannot turn up a particular document. However, to everyone's surprise the document turns up on your CEO's laptop. This is a very possible scenario. You must know whether the document is admissible as evidence in a civil lawsuit.

What do you need to know? Evidence is admitted in court only if it can be shown that the evidence is authentic. Authentic data must follow a chain-of-custody. So how does this work with a lost document that has now been found?

My expertise is storage, not litigation support, so I turned to AdamsGrayson Consulting, a dedicated e-discovery and data retention planning firm in Washington, D.C., as a resource. AdamsGrayson kindly provided me with the necessary information to answer the question. "