THE BIG DATA DUMP

Dawn Beye’s teenage daughter suffers from anorexia nervosa and had to be treated in hospital at a cost of about $1,000 a day. Horizon Blue Cross Blue Shield of New Jersey, the Beyes’ insurance company, covered one month of the bills but then balked, demanding evidence that the affliction was ‘biologically based’ rather than psychological. So Beye got together with parents of other anorexic and bulimic teenagers and sued. Horizon immediately asked to see practically everything the teenagers had said on their Facebook and MySpace profiles, in instant-messaging threads, text messages, emails, blog posts and whatever else the girls might have done online.

The Beyes’ lawyer, David Mazie at Mazie, Slater, Katz & Freeman, objected on the grounds that Horizon’s demands violated the girls’ privacy. He lost. So harddisks and webpages are being scoured in order for the case to proceed. Gathering and then sifting through all the electronic information that a few teenage girls have generated is excessive and daunting, says Mazie.

And yet almost all information today is electronic, and there is ever more of it. “Things that we would never have put in writing are now in electronic form,” says Rebecca Love Kourlis, formerly a justice on Colorado’s Supreme Court and now the director of an institute at the University of Denver dedicated to rescuing America’s civil-justice system.

This system, she says, was already a ‘sick patient’—with crowded dockets and understaffed courts—but electronic discovery now threatens a lethal ‘spike in fever’. She has seen ordinary landlord-tenant disputes take three years, and divorce cases that might have been merely bitter, but are now digital wars of attrition. She sees cases that are settled only because one party cannot afford the costs of e-discovery: whereas in the past 5% of cases went to trial, now only 2% do. She knows plaintiffs who cannot afford to sue at all, for fear of the e-discovery costs.

For large companies, these costs now run into many millions. Patrick Oot, a lawyer for Verizon, an American telecoms giant that gets sued a lot, says that at the beginning of this decade e-discovery presented “a one-big-case, once-a-year problem”. In most cases, information was still on paper, and its volume thus limited. In the rare event that electronic evidence was requested, 100 gigabytes (GB) was considered a large amount.

Today, says Oot, almost every case involves e-discovery and spits out ‘terabytes’ of information—the equivalent of millions of pages. In an...

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

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.

Going Through E-discovery is Not Easy

Electronic discovery - sorting through the huge and growing amounts of electronically stored information (ESI) that most organizations possess - is not easy. However, it is becoming a fact of life for most organizations. In a study that we are conducting for Mimosa Systems - a leading vendor of archiving and e-discovery solutions - we are finding that e-discovery is quite common: 84% of organizations surveyed have been required to produce ESI for litigation during the past 24 months.

Losing the Way Over E-discovery?

At the end of 2006, the Federal Rules of Civil Procedure got amended to address the question of electronic discovery in lawsuits. Not to be outdone, the Judicial Council of California has now proposed its own set of amendments.

If the proposed changes to California civil code dealing with electronic discovery procedures ultimately become law, the new rules will mean new burdens for parties appearing in state courts.

How to Cope in the Era of E-discovery

With the amendments to the federal rules regarding electronic discovery just over a year old and the amendments to the Maryland rules effective this month, the courts are adjusting to the reality that most business and personal communications — potential evidence in litigation — originate in and travel by computer.

Maryland’s Chief U.S. Magistrate Judge Paul W. Grimm called striking the balance between timely justice and the rising cost of performing e-discovery, where potentially millions of pages of documents are prospective evidence, “a bigger challenge now than the system itself has ever faced.”

Losing the Way Over E-discovery?

At the end of 2006, the Federal Rules of Civil Procedure got amended to address the question of electronic discovery in lawsuits. Not to be outdone, the Judicial Council of California has now proposed its own set of amendments.

If the proposed changes to California civil code dealing with electronic discovery procedures ultimately become law, the new rules will mean new burdens for parties appearing in state courts.

Managing Ethics in E-Discovery

Cases like Qualcomm Inc. v. Broadcom Corp., S.D. Cal. 05-cv-1958-B (SLM), have highlighted the dangers to lawyers and their clients of not properly managing electronic discovery. In Qualcomm, during the last day of trial, on cross-examination, a Qualcomm witness revealed the existence of certain unproduced records. After the trial, which Qualcomm lost, Qualcomm produced the records its witness belatedly disclosed, which totaled 200,000 pages.

The court found that the plaintiff's counsel was involved in the misconduct and concealment, despite the lawyers' claims that they had been misled by their clients. The court required Qualcomm to pay Broadcom's litigation costs, which will be millions of dollars, and entered an order to show cause requiring Qualcomm's attorneys to appear and show cause why sanctions should not be imposed upon them.

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.

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.

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."

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.

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.

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.

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.