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by mag3737

5 Tips for Choosing eDiscovery Software

With the rise in the number of corporate investigations, lawsuits and regulatory audits, companies and organizations often chooses to retain almost every business record since nobody knows for sure what might be useful in the future as proof for litigation. Be it Word documents, spreadsheets, email, chats, audio or video, federal and state regulations mandate that companies and organizations produce these records quickly when an eDiscovery request is made. With courts making it very clear that complying with eDiscovery requests at all costs is required, non-compliance can result in companies and organizations paying millions of dollars in fines.

Some organizations depend on outside agencies for their eDiscovery needs. This is a good move if the company or organization does not deal with much data and if the eDiscovery requests occur very rarely. However, in those industries where litigation is more rampant, such as banking and insurance, depending on outside eDiscovery service providers could mean heavy expenses and the possibility of services not measuring up to expectations. Hence, it makes sense to choose a good e-Discovery software solution rather than incurring more expenses without any great benefit. But with so many software options available, companies have to carefully evaluate their needs before determining the right eDiscovery software for their requirements.

Here are some useful tips for selecting the right solution for your company.

Affordability
Invest in a good eDiscovery solution that is affordable and guarantees a good ROI.

Multiple Solutions vs. Single Solution
This may be a mute point since there is no one solution that manges every single aspect of eDiscovery.  However, one should focus on the most important phases of e-discovery (Identification-Production) and look for a solution that addresses these phases with one unified application.

Versatility
Typically electronic information is created and stored in an unstructured manner. Data can be found in a variety of places, including network drives, both Mac and PC desktops and laptops, PDAs, Smart phones, voicemail, content and document management systems or  storage and archiving systems. The eDiscovery solution should be versatile enough to reprocess and analyze data from all of these diverse sources.

Search Accuracy
When legal requests come in, it is very important to retrieve data relevant to that particular litigation. Failing to do so means serious problems like loss of time, money, and effort, as well as an embarrassing situation for the company. Hence, the eDiscovery solution should be effective when it comes to optimizing search accuracy.

Easy Deployment
When responding to legal requests, time is a crucial factor as every second counts. If the ediscovery solution takes too long to deploy before starting the eDiscovery process, it is not worth it. A good ediscovery solution is the one that is easy to deploy, use, and maintain.

Investing in goodEdiscovery software can assure companies and organizations of responding to legal requests and litigation’s quickly and effortlessly.

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by mag3737

Ediscovery Compliance for Existing and Planned Information Systems

According to National Law Journal (2006), about 90% of business documents are stored in electronic form, while between 60 and 70% of corporate data reside in e-mails or in attachments.

Recent government regulations, the amendments to Federal Rules of Civil Procedure (FRCP), effective December 1, 2006, mandate a completely new level of corporate electronically stored information (ESI) treatment and litigation readiness. An amended Rule 33(d) states that the business should be able “to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts, or summaries.” Rule 34(b)(i) stipulates that “a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request”.

The new regulation effectively forces businesses to develop an eDiscovery response strategy on the very early stage, making early acceptance of new record management technologies and tools a must. At the same time, according to survey by Oce Business Services (2007) only 10% of enterprises are well prepared to face an eDiscovery request. 55% of companies consider themselves not to be prepared enough. An finally, 35% of respondents did not even understand the changes brought by FRCP amendments very well.

This paper discusses the ways to make your enterprise information system eDiscovery compliant the most effective way.

Why eDiscovery compliance is important? The main threats to a non compliant enterprise come from litigation costs, company downtime, and brand damage.

Litigation costs and legal fees associated with improper ESI management result from spoliation of evidence, adverse inference, summary judgment, and sanctions (see Qualcomm v. Broadcom). In gender discrimination lawsuit (Zubulake v. UBS Warburg), the court ordered defendant to produce all electronic evidence at its own expense – a huge amount of data stored on optical disks, active servers, and backup tapes. Some tapes appeared to be non-functional or tampered with – the defendant was facing monetary charges for its failure to preserve the missing tapes and e-mails. It is important to point out that while judicial procedures did not reveal any documents supporting the plaintiff, the defendant lost the case because of the improper storage and management of company documents.

Cost of company downtime due to on-site or off-site discovery process are best illustrated with the following real-life example. The United States Secret Service executed a search warrant at SJ Games Inc. office  computers looking for evidence of data piracy (SJ Games, Inc. v. United States Secret Service). Due to huge amount of data, officers decided to remove company hardware to a dedicated site for an off-site search. The hardware was not recovered until four months later. The company had to lay-off half of its employees and was ready to close its doors. Some of the SJ Games expenses were recovered in court only three years later.

Brand damage and  losses associated with bad PR, loss of clients’ trust leading to loss of clients, stocks plunges, etc. can mount up after the general public finds out that the search warrant was issued against an enterprise. It is in the company’s interest to complete the unpleasant procedures and clean its name as soon as possible.

Good data organization, ease of retrieval, protection from spoliation and tempering are the key elements of eDiscovery preparedness. I will consider two potential situations: when the data storage infrastructure is already in place and when the system is at the planning stage.

Existing system

If your data storage infrastructure is working, you should take great care in making it eDiscovery compliant without disruptions to its operations. A compliance-oriented system should not interfere with normal everyday functions of the existing software and hardware infrastructure.

It would be nice to find means to avoid introduction of changes into a stabile and functioning logics of your system. Such changes generally lead to introduction of potential instabilities in its work and may lead to huge expenses for testing and bug-fixing. There is a way to avoid these inconveniences – give access to your documents stored inside your system as if they were files and folders on a virtual disk. You may object that in-house development of such virtual disk capabilities requires serious investments (thousand of man hours of a highly skilled labor). The Callback File System will solve this problem for you.

Callback File System is a software component for developers allowing virtual real-time representation of any data as files and folders of an ordinary file system. The files may be accessed through a currently used software without necessity to write adapters, parsers, or converters. Callback File System is based on a kernel-mode driver and,  therefore, necessitates implementation of only limited number of callback functions, without need for low level file system programming. Use of Callback File System allows your developer to implement all new FRCP provisions in the shortest amount of time. The main arguments for use of Callback File System to increase eDiscovery compliance of a computer infrastructure are the following:

1. Presentation of any data as files and folders improves preparedness for an eDiscovery event. Good document organization and their availability makes an investigation possible, and reduces the time law-enforcement officers need to find necessary documents, regardless of their format or location. You can arrange your documents by simulating virtual folders within month-day-year, thematic, or any other hierarchy.
2. To facilitate eDiscovery procedure, the data comprising e-mails and instant messages must be made easily accessible to investigators. Functionality of Callback File System permits presentation of this unstructured content as regular files, thus making search through them as easy as an ordinary Windows search. The distributed nature of Callback Files Systems makes possible single-run searches of data spread across several platforms and storages.
3. Callback File System allows presentation of data in any format stored either locally or remotely: in database records, on mobile devices, in Internet storage, spread over several data storages, or elsewhere.
4. Use of Callback File System allows assignment of the data access privileges scheme, which makes possible setting restriction on read and write operations, or, to protect data from tampering, by giving read-only access.

To summarize: with the help of Callback File System your developers will be able to adapt an existing information system to recent FRCP requirements quickly and without significant system downtime.

System in planing

Needless to say, all newly developed enterprise infrastructures dealing with electronically stored information must be designed eDiscovery compliant from the beginning. One of the good ways to deeply integrate FRCP requirements into a system being planned is th use of Solid File System (SolFS). This software component makes possible creation of huge encrypted distributed data storages with support of metadata, tags, timestamping, access rules, strong encryption, etc. The benefit of SolFS-based storages can be briefly outlined as following:

1. Excellent document organization is certainly a benefit of a SolFS-storage. Regardless of a place where these documents are stored, the enterprise can be sure that they are not prone to loss, tempering/spoliation, inadvertent or intentional destruction.
2. Built-in cryptographic protection of SolFS excludes unauthorized data access. The most efficient moder cryptographic algorithms may be used to not only encrypt/decrypt data, but also to timestamp them and allow integrity checks.
3. Self-integrity checks is another extremely useful functionality of SolFS-based storages. Even if a media where the storage is located  becomes physically damaged and unreadable through negligence or evidence spoilage effort, it will not result in loss of the whole storage. The damaged part can be reconstructed from the previous version of the storage. This effectively excludes situations similar to one that resulted in defendant’s loss in Zabulake v. UBS Warburg case.
4. To make access to your storage as regular files and folders from any application, you may utilize SolFS Driver Edition. It makes possible development of monitoring tools watching the changes made to files inside a SolFS storage and exporting them in any convenient format for eDiscovery investigation.
5. Providing a whole integral storage to the investigators for on-site or off-site search is faster and cheaper than dealing with myriads of separate files, folders, database records, e-mails, instant messages and scattered other the whole system.

eDiscovery compliance of an enterprise can be significantly improved through implementation of efficient document storage, retrieval, indexing, and content search strategies. The efficient way to adopt an existing system is use of Callback File System developed by EldoS Corporation. On the stage of system design planning, it is natural to consider use of Solid File System Driver Edition by EldoS Corporation as a native data storage platform.

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by mag3737

The Cost Of Ediscovery

What is eDiscovery?

Before, all businesses store data and information in paper documents. But with breakthroughs made in Information Technology over the past two decades, businesses have switched to using computers as a major device in storing and managing information. A large fraction of these electronic data contain legally sensitive information that may be used as evidence in a civil or criminal legal case. With this, the process known as eDiscovery has become popular in acquiring evidences to be used in lawsuits. Electronic discovery or commonly referred to as E-discovery is a process wherein electronic data in the form of text, images, databases, spreadsheets, audio files, etc. are being used as evidence in civil or criminal legal litigations.

Electronic Data vs Paper Documents

Electronic data is easy to store, manage, share, and search compared to hard copy data. These characteristics have made electronic data suitable in investigations. Another feature of electronic data which cannot be found in paper documents is the metadata or metainformation that usually go together with electronic data. Metadata is the data about the data, with it more information such as the author and the date the file was created becomes available.

Impact on Business Organizations

As business organizations continue their day to day routine, the amount of Electronically Stored Information (ESI) that needs to be managed also increases. With tightening regulations that have to be put into consideration and the increasing litigations companies have been forced to confront, more and more have become aware of the legal risks involved in managing Electronically Stored Information. This has led companies to invest in information risk management systems and document retention policies.

eDiscovery is a costly process for businesses. Millions of dollars have been spent in eDiscovery. Since the 2006 amendments to the federal procedures for e-discovery, companies have been taking eDiscovery seriously. DuPont spent approximately M reviewing documents in eDiscovery, only to find out that those documents should have been destroyed long ago according to according to existing document retention policies. UBS Warburg and Merck were fined .2M and 3M respectively in litigation that required eDiscovery of files. The Prudential Insurance Company of America was fined more than M for not preserving certain records that proved to be crucial by the courts.

Business organizations have always been left overexposed to documented-related risks. According to The Tower Group, there are about 7.5 million Microsoft Office documents created every year. About 35% of all corporate documents contain legally sensitive information (Cohasset Survey 2005). 25% of corporate documents are subject to regulatory compliance (Vanson Bourne Consultancy) and only about 30% of businesses have implemented technology to facilitate the retention and disposal of documents across the enterprise.

These documented-related risks can come from many directions, some of the primary risk forces as identified by NextPage.com include:

Your Enterprise. On the average 80% of the Office documents that companies create are stored in hard drives and scattered shared drives. Combined with the continuing problem of user adoption of new tools, they becomes exposed to information risks.

Employees. High-risk documents on employees’ computers and the neglect in complying to document retention policies becomes a dangerous combination for businesses.

Clients. The inability to meet with contractual obligations can create obvious and unacceptable liabilities for businesses.

Regulatory. Most businesses have been required by government regulations to have written document retention policies in place and effectively execute these polices. In too many cases, uncontrolled documents on the desktop lead directly to non-compliance with these regulations.

Legal Departments. Business leaders must manage the effects of legal issues to business productivity.

Reactive vs Proactive eDiscovery

A good article from IT Today by Ursula Talley explains the difference between reactive and proactive eDiscovery. Reactive eDiscovery means taking actions after receiving a discovery request. Proactive eDiscovery on the other hand is the other way around, organizing and managing information in advance, thus giving companies a better response to future discovery requests.

With the concept being relatively new and the tedious tasks involved in managing electronically stored information, most business organizations are still reacting to eDiscovery requests. But as time goes by, more and more companies are switching to proactive eDiscovery given the obvious advantages of having it over reactive eDiscovery.

Jason R. Baron and Ralph C. Losey collaborated to create a “Did You Know?” type of music video on electronic discovery law. This video presents some of the amazing facts behind the information explosion and rapid advances in technology. It also explains some of the negative impacts this is having on the law. Lawyers around the world are unable to keep up with these changes. The biggest problem now is how to find relevant evidence when our writings are all just bits and bytes hidden in unimaginably large haystacks of irrelevant information The video ends with their speculations about the near and far futures of the law and technology.
Video Rating: 5 / 5

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