Companies begin reflection on FRCP eDiscovery and email archiving experiences
February 28, 2008 at 10:21 pm (archive email, business, e-discovery, e-discovery amendments, edd, eDiscovery, electronic communication, electronic data discovery, electronic discovery, electronic document retention, Email Archiving, email litigation, email retention, email storage, foxhollow technologies, frcp, governance, legal, message archiving, news, politics, thoughts)
Paul Korzeniowski of Byte and Switch reports that at least a few small to mid-sized businesses are ready to reflect on eDiscovery and the steps they have taken to successfully comply. Writing about the current state of eDiscovery preparation in American industries, Korzeniowski says: “while many firms, particularly SMB’s, continue to struggle with the FRCP mandate, the ones who’ve managed to institute policies and procedures for the speedy and accurate retrieval of electronic information have a lot to say about what works — and what doesn’t.” Korzeniowski included a section about how medical device supplier Foxhollow Technologies Inc. was forced to integrate an email archiving solution when they became involved in a federal law suit. I am posting an excerpt of this section below because I think it is an important learning opportunity for all U.S. Businesses that are on the fringe of turning to email archiving.
“When IT pros at Foxhollow Technologies Inc., a startup medical device supplier, looked to install email archiving three years ago, management forced the project to the back burner, despite a general lack of email control. “There were users who saved everything and had gigabytes – or more – of email messages,” noted Chuck Arconi, system administrator at the company. At the time, Foxhollow had about 600 employees, but its email system chewed up 400 Gbytes of storage.
Then the other shoe dropped when the company became involved in a law suit. Suddenly, funding for the email archiving project was no longer a contentious issue. ‘The legal department had no problem finding the capital needed to pay for the entire project. In fact, they gave us more than twice as much money as we needed. Before, a paralegal would have to spend two to four hours trying to find the right messages in each mail box. Now the work is done with a click of a button.”
Last month I wrote a blog entry on email insurance and I mentioned the concept of “professional disinterest.” I provided the quote of “when it happens to me, I’ll deal with it.” Foxhollow Technologies illustrates this point loud and clear, as many U.S. Companies are perfectly content waiting for something bad to happen to them before making something important a top priority. Why do they do this? I think it just really takes a wake up call to force people to make decisions most of the time. I think individual case studies are one of the best ways to get people to pay attention and I will try and provide many more of them. Stay tuned.
Next generation email archiving? [part 1]
February 26, 2008 at 4:12 pm (archive email, business, corporate, data retention, disaster recovery, e-discovery, e-discovery amendments, edd, eDiscovery, electronic communication, electronic data discovery, electronic discovery, electronic document retention, Email Archiving, email compliance, email litigation, email management, email retention, email storage, exchange 2007, frcp, governance, legal, message recovery, news, politics, thoughts)
I came across an interesting article earlier today on Computer Technology Review regarding the current & future expectations of an email archiving solution in light of modern FRCP eDiscovery requirements. William Tolson has compiled an expert list of capabilities to be considered when choosing an email archiving solution that I feel all U.S. Businesses should review. I am posting an excerpt of his writing below along with the capabilities he feels are pertinent in meeting the demands of regulatory and legal compliance:
“Email archiving solutions should address critical customer requirements around email information archiving, eDiscovery, regulatory compliance, business continuity, and storage optimization. Enterprise-class solutions provide legal search work flow, immediate mailbox and message recovery, disaster recovery, email archiving, and self-service search and access in one solution. By leveraging cost-effective storage, these solutions also optimize email storage and reduce overall infrastructure costs. Next generation email archiving solutions deliver rapid, comprehensive search across millions of emails for litigation ready production and provide the following capabilities:
Rapid eDiscovery: Auditors and legal staff must be able to quickly perform sophisticated search and discovery across centrally managed mailboxes to meet compliance requirements.
Automated, Exchange Disaster Recovery: Reliably protect Exchange information through non-invasive, continuous application shadowing. This process preserves the consistency and integrity of Exchange data and enables “one-click” full email data and service recovery when needed.
Mailbox Storage Management: Reduce storage requirements on the Exchange Server by migrating or “extending” attachments based on policies of age, document size, or mailbox size.
Self-service search of archived data: Seamless self-service access to end-user archived data, enabling them to find potentially lost or deleted messages without IT assistance.
Enhanced support for Exchange 2007: Live Communication Server (IM) and 64 bit Servers – extends content management to include instant messaging and takes advantage of new Exchange 2007 features for disaster recovery, folder level retention, and mailbox level journaling.
Automated PST File Archiving: New “crawler” automatically searches and retrieves PST files from servers, desktops, and laptops based on administrator-defined policies.
Active Directory Integration: Leverages roles defined in Active Directory and provides a version history of Active Directory, including distribution lists. Contents of distribution lists are viewed as they appeared when an email was originally sent or received.
Public Folder Archiving: Performs archiving and continuous data protection for Public Folders and allows auditors to search all Public Folder content and re-create chain-of-custody for compliance and legal discovery.
Scalable Storage & Reduced Archive Storage Requirements: Designed to deliver improved scalability and performance for the archive server with support for multiple databases and extensible storage volumes.
Each of the above criteria is highly relevant in ensuring a smooth email litigation process should such a situation arise. However, does relevancy equal necessity? Which of these factors are truly “business critical”? How essential is having support for Exchange 2007? Does a company need public folder archiving? When does storage really become a problem? Are the above capabilities best used in an in-house or an outsourced email archiving solution? I believe it is important for a business to understand what they need to comply with corporate regulations and legal requirements without spending money and time on things that are simply not necessary. What are the intricate parts of an email archiver that you truly NEED to satisfy compliance? I would like to address this topic in full soon. Stay tuned.
Electronic discovery case research? Look no further [part 2]
February 22, 2008 at 6:34 pm (archive email, business, data retention, database, e-discovery, e-discovery amendments, edd, eDiscovery, electronic communication, electronic data discovery, electronic discovery, electronic document retention, Email Archiving, frcp, legal, message archiving, news, politics, safe harbor rule, thoughts)
“You can now select the attribute FRCP 37(e) Safe Harbor, “cick” Search,” and view a list of cases that have cited or discussed the new “Safe Harbor” rule. Other new attributes that we have added include:
-FRCP 26(b)(2)(B) “Not Reasonably Accessible”
-FRCP 34(b) Procedure or Format
-FRCP 26(b)(2)(C) Limitations
-FRCP 26(b)(5)(B) or Proposed FRE 502
-Early Conference or Discovery Plan
-Local Court Rule, Form or Guideline
-Motion for Preservation Order
What’s more, the database now contains over 900 e-discovery cases from state and federal jurisdictions, with new cases being added very week. Now more than ever, our database is an excellent source of information on developing e-discovery case law around the country.”
This database is an excellent resource for those organizations that are in the early phases of integrating an email archiving solution. With over 900 e-discovery cases from state and federal jurisdictions, there is substantial access to learn how courts view email compliance with FRCP eDiscovery proceedings.
Cayman Islands to host seminar on email archiving and disaster recovery
February 21, 2008 at 5:04 pm (archive email, business, cayman islands, corporate, data retention, disaster recovery, e-discovery, edd, eDiscovery, electronic communication, electronic data discovery, electronic discovery, electronic document retention, Email Archiving, email backup, email compliance, legal, message archiving, news, politics, seminar, thoughts, white paper)
Caymanian Compass, the Cayman Islands’ leading newspaper, reports that a seminar on email archival and disaster recovery will take place on February 21st at the UCCI (University College Cayman Islands) Executive Training Center. According to Rob Eyers, responsible for enterprise business development at Kirk iSS, “Public and private sector organizations in the Cayman Islands are facing similar challenges to their counterparts in other offshore jurisdictions.” He then adds: “the increased use of technologies such as email, sms, instant messaging, Microsoft Office and a range of other types of electronic communications have resulted in substantial growth in data within the enterprise and in turn created a significant data management problem for the IT Department. With 83% of business communication now being electronic, organizations need a solution to reduce the cost of storing, managing, and discovering this electronic tidal wave of business information.”
There are a couple of points I would like to make here. Firstly, there has been a recent surge in the amount of educational resources regarding eDiscovery and email archiving. Within the past month alone I have written about professional research papers, legal guidelines, reports, conferences, and even a judicially acclaimed reference on the topic. What is the significance here? I believe that both industry leaders and experts are finally recognizing the sheer volume of companies that are simply unprepared to deal with the pressures of satisfying an ever strengthening corporate & legal governance. Education and integration of email archiving solutions will continue to be a process, but there is little doubt that progress is being made. Secondly, the geography of email archiving and the locations that might be subject to email compliance regulations in the near future will be interesting to keep an eye on. That this seminar is taking place on the Cayman Islands, a British overseas territory, is a sign of society and corporate governance moving in a specific direction.
Email Archiving: in-house solution or outsourced service? [part 1]
February 15, 2008 at 10:10 pm (archive email, business, data retention, electronic communication, electronic data discovery, electronic document retention, Email Archiving, email audit, email backup, email compliance, email management, email retention, email security, message archiving, news, politics, thoughts)
In this entry I would like to focus on the cost of an in-house email archiving solution versus that of an outsourced service. Firstly, which one is more cost efficient? This question is an important one for most small to mid-sized businesses as they need to keep email archiving within a tight IT budget. Organizations will be pleased to know that the answer is an outsourced service, and it is usually by a significant amount. But why? Why are in-house solutions so much more expensive? It all comes down to the sheer amount of work that is required to keep the in-house solution up and running. The IT team is responsible for monitoring all incoming and outgoing electronic communications, maintaining email archiving appliances, and ensuring proper systems integration. There is also the issue of storage space, which could add up in a hurry if your business has thousands of emails entering and leaving the archive daily. Outsourced services retain all of your email messages for you and present you with advanced search options to quickly retrieve specific emails that have been captured in the archive. However, the big question that I am posing here is: are there any distinct advantages to an in-house email archiving solution that would justify the high cost to maintain and integrate? Why do some organizations PREFER the higher cost?
In one word, the answer is trust. Companies simply do not feel comfortable trusting an outsourced email archiving service to sift through their email and have access to private information. But is that really what happens? Do email archiving services take such advantage of their clients? No, they don’t. Why not, you might ask? Roles based permission access, industry regulation authorities, and business reputation are three critical factors that ensure outsourced email archiving safety. Are there any distinct advantages to an in-house email archiving solution that would justify the high cost to maintain and integrate? There are some loose arguments to be made in favor of an in-house solution, but stay tuned for part II for more information.
NY LegalTech panel takes a look at in-house and outsourced electronic data discovery
February 11, 2008 at 9:46 pm (archive email, business, data retention, e-discovery, edd, eDiscovery, electronic communication, electronic data discovery, electronic discovery, electronic document retention, Email Archiving, email backup, email compliance, email management, email retention, email security, frcp, legal, message archiving, news, politics, thoughts)
Legal Blog Watch reports that on February 5th Claire Duffet of Law Technology News attended a morning session of the NY LegalTech panel entitled: “Actionable E-discovery: Finding the Right Balance of In-house and Outsourced Resources.” According to Duffet there were 300 attendees in the room who had to answer the poll question: which step in the eDiscovery process is most concerning? 43% said that this step is in the processing review and analysis, 33% said that its in preservation and collection, and 13% said information management with identification, production, and presentation rounding out the rest of the responses.
Duffet mentioned the presence of several significant eDiscovery figures including: attorney Marie Lona, partner and chair of the e-discovery and electronic information practice group at Winston and Strawn, Tom Hall, managing attorney for discovery and litigation technology at Cleary Gottlieb Steen & Hamilton, Mikki Tomlinson, litigation support manager for Chesapeake Energy Corp, and moderator Kelli Brooks, principal of forensic technology services at KPMG. Tom Hall discussed the serious sanction handed down in the Qualcomm Inc v. Broadcom Corp by saying “My risk aversion advice: Don’t do that.”
EDD (electronic data discovery), as evident by the 46,000 missing electronic documents in Qualcomm, is an extremely important business continuity measure in the year 2008. Panel discussions such as the one above are instrumental in the education process for U.S. Businesses to learn about the dangers of avoiding email compliance and email archiving solutions. Perhaps the question is: is it better to retain electronic correspondences using in-house or outsourced solutions? This depends largely on the finances of a company, but there is a strong argument to be made for an outsourced service. They are generally more cost efficient, provide IT relief, and automatically provide you with regulatory and legal compliance.
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