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.