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.