Managing E-Discovery Consultants and Vendors Wisely

Some sources estimate that the e-discovery consultant market is presently $3 billion and growing.

Close attorney supervision, good communication and strategic foresight remain necessary, however, to a successful relationship among the litigant, counsel and the e-vendor. Litigants and counsel must also certify the results of a vendor's work, and responsibilities under the procedural rules cannot simply be delegated away.

Vendors serve important functions: identifying available electronically stored information; translating information to a form that may be read or understood without actually changing the data; transferring information to an appropriate medium for production during the litigation process; and assisting with forensic analysis if necessary.

"Electronically stored information" under Fed. R. Civ. P. 26 and 34, and similar state rules, is broadly defined.

E-discovery vendors are able to provide expertise in identifying information, using sophisticated software to winnow duplicative or irrelevant information, to access it, and to translate it to a communicable form without changing delicate metadata or other information.

A vendor is able to canvass key employees in a streamlined manner and can efficiently identify relevant data-mines and the information needed for preservation.

KAZEON UPGRADES eDISCOVERY

Kazeon has extended its Information Server eDiscovery application, announcing improved collection, procession and analysis with legal hold from laptops and desktops.
The company says that version 3.1 of Information Server IS1200-ECS introduces a new in-place legal hold, KazHold, and a new agent-less product for in-place analysis of and collection from laptops/desktops.
It says that these new products and functionality are key enhancements which will help organisations streamline collection, analysis and processing for proactive and reactive eDiscovery processes, ensuring that all relevant and necessary information for any litigation related activity is discovered, and that no data is spoiled

Do Computer Snoops Need PI Licenses?

By now, we all know how the Recording Industry Association of America nabs alleged file sharers, more than 20,000 lawsuits and counting: Hired snoops from MediaSentry -- aka SafeNet -- log onto Kazaa, Limewire or other file sharing programs, peer into open share folders, take screen shots, download a few files and obtain the offending IP addresses.

But in a few states – Michigan, Texas, Florida, New York, Massachusetts, Oregon and Arizona -- the RIAA's investigators have come under attack by state governments or RIAA defendants. Reason: they are not licensed private investigators in their respective states. Michigan recently told (.pdf) MediaSentry it needed a license to continue practicing.

But demanding a private investigator's license doesn't make such sense for computer forensic work, according to the American Bar Association. In a recent report, the country's largest legal lobbying group urges the states to jettison the idea of, or licensing requirement for computer forensic specialists, especially since most state licensing boards don't demand education in such work

E-Discovery: Managing the Unmanageable

The e-mail or voice-mail message has a familiar and ominous tone: "This is (insert name of in-house counsel here) from the law department. It looks like there may be some litigation involving (insert product name). We don't have a copy of the complaint (or subpoena) yet, but we know we are going to have a pretty tight deadline for responding, and we will need to coordinate with your IT department. You may receive a call from (insert name of law firm you have never heard of before) in the next couple of days to discuss what we need to do in terms of data preservation and our response. If you have any questions, please call or shoot me an e-mail. Thanks very much and have a good day."

And so it begins. It will not be a good day. This message may be the call to arms in an electronic discovery battle that may materially affect your IT plans, projects, personnel and budget.

The critical qualifier is "may." The legal press is chock-full of articles, written by lawyers for lawyers, about how to manage e-discovery. Missing has been straightforward guidance for CIOs about their e-discovery management role. I hope to fill this gap by providing concrete and common-sense steps that you and your IT team can take to effectively manage the size and cost of e-discovery. The first step in this process is to understand some of the e-discovery rules of engagement.

Recent Cases Teach Valuable Lessons in E-Discovery

Managing discovery of electronically stored information (ESI) is a challenging task. Companies often generate and store huge volumes of data across multiple sources, employees and locations. Further, many discovery requests that seek ESI disregard the costs or burdens imposed on the responding party. As exemplified in the highly publicized Qualcomm case, moreover, failing to collect and produce relevant information can be costly, and courts have severely punished the failure to produce e-mails or documents. Qualcomm, for example, recently paid more than $8.5 million in attorney fees in a patent infringement case for failing to produce numerous e-mails during discovery. Similarly, in a shareholder case, DaimlerChrysler was ordered to pay $556,061 in sanctions after certain documents were not produced until trial.

Cases involving million-dollar meltdowns, however, should remain the rare exception. Trial attorneys are becoming more adept at conducting e-discovery and can learn helpful lessons from recent cases. Recent e-discovery cases teach three important lessons: (1) properly plan for e-discovery; (2) cooperate with opposing counsel; and (3) correct any mistakes early in the case.

White House Lacks Comprehensive E-Mail Archive

For years, the Bush administration has relied on an inadequate archiving system for storing the millions of e-mails sent through White House servers, despite court orders and statutes requiring the preservation of such records, according to documents and technical experts.

President Bush's White House early on scrapped a custom archiving system that the Clinton administration had adopted under a federal court order. From 2001 to 2003, the Bush White House also recorded over computer backup tapes that provided a last line of defense for preserving e-mails, even though a similar practice landed the Clinton administration in legal trouble.

As a result, several years' worth of electronic communication may have been lost, potentially including e-mails documenting administration actions in the run-up to the Iraq war.

White House officials said last week that they have "no reason to believe" that any e-mails were deliberately destroyed or are missing. But over the past year, they have acknowledged problems with archiving, saving and finding e-mails dating from early in the administration until at least 2005.

Women in E-Discovery Announce First Career and Technology Expo

Women in eDiscovery, a non-profit organization committed to providing information and education as a public service to the legal community, today announce their first Career and Technology Expo (CTE) will take place September 18th, 2008 in Washington, D.C. The expo will be held at Document Technologies, Inc. corporate office in the Ronald Reagan Center.

The Career and Technology Expo will feature 29 vendor booths and a demonstration room where a number of products and solutions by vendors, such as Catalyst, Clearwell, Stratify, IPRO and others, will be presented for 30 minutes each. In addition, there will be a resume preparation room and an interview room where recruiters and consulting companies will impart interview and resume tips on a one-on-one basis.

“We are very excited to be bringing both men and women in the legal industry together to educate, support and network with one another,” stated Parvaneh Daneshman, Co-chair of the event and Senior Project Manager at ONSITE3. “The e-discovery industry is growing so rapidly and is changing very quickly. It is great to get a group of leaders and innovators together to discuss hot topics and issues facing them and the rest of the market every day. We expect this to be a great forum for sharing ideas and expertise.”

Black Hat 2008 Aftermath

As always, the 2008 Black Hat security conference in Las Vegas, N.V., was full of cutting-edge computer security research, the latest in computer security vulnerabilities, and more than a little controversy.
The most popular presentation at Black Hat 2008 was on the Internetwide DNS vulnerability discovered by Dan Kaminsky, director of penetration testing for IOActive. Over 2,000 attendees packed into an 800-person capacity room to hear Mr. Kaminsky tell the intriguing story of how he had been working on a nonsecurity related, Web-caching project for a friend at Wikipedia.
DNS cache poisoning is a technique that allows a hacker to introduce forged DNS information into other DNS servers. The result of a DNS cache poisoning attack allows the hacker to take control of portions of the Internet or redirect all users of a search engine to malicious content.
Everyone knows that e-mail spam is a huge problem that all of us are subjected to on almost a daily basis. What you may not know is how e-mail spam is directly linked to phishing and botnets. Phishing e-mails attempt to steal personally identifiable information from unsuspecting computers by getting them to open a "Trojaned" attachment or follow a link to a malicious Web site. Botnets are a collection of hacked computers remotely controlled by individuals for nefarious purposes.
Typically the hacker or "bot herder" will use the computer under their control for denial-of-service attacks often associated with extortion or massive spamming as part of a phishing effort. There were a number of different presentations addressing how phishing and botnets, in conjunction with e-mail spam, are used by hackers.
Black Hat also covered the latest trends and security implications of server virtualization and introduced visual forensic analysis in a session entitled: "Visual Computer Forensic Analysis," by Greg Conti and Erik Dean. In upcoming articles we will look more at this cutting-edge technique and the tools being developed around, it as well as delve into the dangers of social networking sites, phishing and botnet schemes, and SSL VPN security.

Poll: Execs Believe E-Data Becoming Unmanageable

Results of a recent online poll of executives conducted by Deloitte Financial Advisory Services portray the growing volume of electronic data in corporations as a virtual litigation disaster waiting to happen.
"Discovery is a very serious issue to business today," Bruce Hartley, a director in the Analytic and Forensic Technology practice of Deloitte FAS, said. "There are real stakes and real penalties associated with poorly handled discovery. In the past few years, we have seen cases where defendants have faced jail time and millions of dollars in sanctions or penalties."
"Strategic steps should be taken so that electronic discovery can be handled correctly," he said.
Deloitte recommends that companies create an e-discovery program and communicate it to all departments. That would include records management policies and document retention schedules. The firm also recommends that companies map their data systems and data sources.

Reduce litigation risk, cut costs with proactive eDiscovery

Getting a Handle on eDiscovery“Discovery” is the legal process that all companies facing lawsuits are required to go through in order to produce relevant documents for the court to consider. Generally, any company with $1B in revenue faces multiple legal matters. They may be spurious, or legitimate—but for good-sized companies, they’re inevitable. What’s notable is that those companies spend between $2.5 million and $4 million a year on legal discovery of electronic files alone.
What’s driving those costs? Part of it is an increase in the number of lawsuits. Part of it are the new regulations that enterprises have to comply with in the wake of Enron, WorldCom, and Tyco. But probably the most important factor driving the increase in legal discovery costs is the rapid growth of electronic data that is generated and stored by companies as part of their ongoing business operations. While technology has made our lives at work easier and more productive, it has also contributed to the proliferation of electronically stored information (ESI). To make things more complicated, as much as 90% of all that information is unstructured and unmanaged. Most companies do not have well defined information management policies in place to manage the explosive growth of this data. This is a recipe that can lead to huge litigation costs later for companies when they have to reactively dig through mountains of information to provide timely responses for eDiscovery requests.

E-Discovery Faces a Language Barrier

John Tredennick is a lawyer and technologist, but lately he's been worrying about some odd things. Like the fact that Japanese is written with a combination of three different types of scripts, or that many languages run their words together without breaks between them. Trivia like this is usually of interest to linguists, but it has become a serious issue and nuisance for lawyers like Tredennick. That's because litigation is increasingly taking on international components, and legal technologists are struggling to incorporate foreign language documents into litigation.

Legal technology experts say that discovery in languages other than English have only recently begun to flood the system. "It's a trend that's simply exploded. Two years ago, if you'd asked me about foreign language electronic evidence, I would've said, 'yep, it's coming,'" says Tredennick, CEO of Catalyst Repository Systems, an e-discovery vendor. "But since then it's swelled to a flood. Back then I would've said the volume of such evidence was about zero terabytes. Now we see tens of terabytes of documents in languages other than English."