Mobius and Microsoft Streamline Information Access

January 31st, 2007: Mobius and Microsoft have just announced an expanded alliance to extend records management functionality in Office Sharepoint Server 2007.

Mobius will be offering new capabilities such as the ability for SharePoint Server 2007 users to search for, access and manage information stored in Mobius repositories, in SharePoint technology repositories and in any other repository, database or file system within an enterprise.

Mobius will integrate technology such as its ViewDirect and Total Content Integrator with Sharepoint, claiming that it will be able to deliver flexibility and scalability to enterprise information access.

“With vast amounts of electronically stored information scattered in disparate repositories around the global enterprise, users need a single point of access to both SharePoint and non-SharePoint information,” says Jim Biggs, Mobius vice president of channel sales. “We predict that the rapid adoption of Office SharePoint Server 2007 will put new demands on organisations to deploy a highly scalable 'archive of record' to manage long-term retention of electronically stored information to support legal and compliance requirements as well as the operational needs of the business.

To view the entire release, click here
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Source: IDM

Compliance prompts faster email and IM data discovery

Vendors are struggling to supply IT managers with storage management tools that meet their needs

Vendors are rushing to provide IT managers with storage management tools to aid compliance with data retention guidelines, with Symantec and IBM the latest to introduce updated software this week.

Symantec has released version 7.0 of its Enterprise Vault data archiving and enterprise content management (ECM) application, whilst IBM has updated its Tivoli Storage Manager (TSM) backup and recovery solution.

Enterprise Vault 7.0 has been expanded to search and classify the data held in more mailboxes, automatically enforcing retention and electronic discovery policies based on 50 pre-defined rules, or an unlimited number of customised ones.

Better integration with Microsoft Exchange 2007 means the software can utilise Windows Desktop Search (WDS) and Rights Management Services (RMS), and search and classify instant messaging (IM) content by capturing Live Communication Server traffic.

Analyst firm Enterprise Strategy Group (ESG) recently estimated that global organisations will collectively archive 7,000 petabytes of e-mail over the next four years, while 77 per cent of companies have been required to find and produce email messages as part of electronic discovery requests for legal purposes.

‘Most organisations at this stage are looking at storage from a management and performance perspective, though in the EU we are seeing an increased demand to find data information quickly in the case of litigation,’ said Symantec spokesman Fredrik Sjostedt

To view the entire release, click here
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Source: Computing
By: Martin Courtney

Electronic Discovery - TechnologyCounsel.org Launches to Help e-Discovery Experts Bridge Gap Between Law and Information Technology

New Information Portal, sponsored by Fios Inc., to Offer the Latest Trends, News, Blogs and Feature Articles on e-Discovery Issues and the Emerging Role of Office of Technology Counsel

PORTLAND, Ore.-LAWFUEL - eDiscovery News -Fios® Inc., a leading provider of electronic discovery and litigation readiness services, today announced the official launch of its third sponsored information portal, TechnologyCounsel.org (www.technologycounsel.org). This new web portal is dedicated to supporting the emerging role of Technology Counsel and the legal practitioners who are bridging the gap between law and information technology (IT).

TechnologyCounsel.org offers the latest news, trends, research, legal blogs, job boards and articles focused on legal and technology issues related to litigation, governmental investigations and compliance. TechnologyCounsel.org joins DiscoveryResources.org and ComplianceResources.org as central educational resources sponsored by Fios. In addition to news, articles and industry research, TechnologyCounsel.org features a new industry Blog, entitled “Enterprise Matters,” which provides guidance and observations on issues that technology counsel professionals can apply to their practices. The blog is supported by Mary Mack, Esq., and Daniel Pelc, Esq., Fios’ Office of Technology Counsel and electronic discovery experts. Mack is also the author of the blog, “Sound Evidence,” featured on DiscoveryResources.org.

To view the entire release, click here
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Source: LawFuel

E-Discovery Experts Name Top Five Trends for 2007

NEW YORK--(BUSINESS WIRE)--Growth, debate and change will be the norm in 2007 when it comes to the expansion and evolution of e-discovery technology according to an analysis of the e-discovery industry discussed and announced today by the newly formed LexisNexis® Discovery Services group.

As part of its participation in Legal Tech® New York, the largest legal technology event of the year, LexisNexis Vice President of Industry Relations, Courtney Ingraffia Barton, Esq. and Director of Data Collection & Forensic Services, Tom Williams, hosted a session in which they reviewed the top issues in e-discovery in 2006 and predicted the top trends for 2007.

“In time the ‘e’ in ‘e-discovery’ will disappear, illuminating the fact that document production in electronic form is fast becoming a routine part of all discovery,” said Barton. “2007 will see this evolution progress significantly as the primary trends in the industry drive corporations to collaborate across business units to create systems that combine information management with e-discovery, and partnering with market leaders in the field who can provide scalable end-to-end Total Practice Solutions.”

Top Five Trends for 2007

After reviewing the business issues and technologies that shaped the market last year, as well as anticipated milestones in the New Year, Barton and Williams announced what they see as the top five trends that will shape e-discovery use and growth in 2007. Specifically:

1. Amended Federal Rules Will Generate More E-Discovery

The most profound development for the e-discovery community last year came from amendments to the Federal Rules of Civil Procedure implemented in December. Changes have created requirements that will generate more e-discovery in 2007 and beyond. For example, amendments create an entirely new category of discoverable information: “electronically stored information” and authorize production of such information either as it is ordinarily maintained or in a reasonably usable format. The rules also now require counsel to meet, confer and agree on disclosure, electronic discovery and preservation issues – including form of production, potentially inaccessible data, and privilege or protection of trial preparation materials. These changes and others will increase the demand and need for discoverable documents to be found, processed and reviewed.

2. E-Discovery Case Law Will Evolve

2007 will see debate and refinement of e-discovery case law as judges and parties continue to grapple with the intersection of law and technology. Courts will interpret the gray areas in the federal rules with continued reliance on commentators, including the Sedona Conference® whose guidelines, principles, and definitions were frequently cited by judges in 2006. However, many courts are coming up to speed quickly and becoming less tolerant of litigants’ and lawyers’ claims of ignorance around e-discovery rules. As more lawyers and corporations also understand the rules, there will be fewer cases dealing with sanctions and more opinions on issues that remain largely undefined by the rules - such as form of production and the standard for inaccessibility under Rule 26(b)(2)(B).

To view the entire release, click here
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Source: BusinessWire

Lawyers discuss e-discovery gotchas

NEW YORK -- Roughly 10,000 attendees showed up for the Legal Tech conference in New York this week, including lawyers, IT directors and CIOs, all looking to learn more about e-discovery. Top of mind were the Federal Rules of Civil Procedure (FRCP), updated in December, governing the recovery of electronic information.

"The temptation is to go out and try and collect everything, but you'll find that the data generated around whatever issue you're under litigation for just goes on and on," said John Ritter, vice president of corporate information security at Bank of America, during a panel session on developing a corporate plan for e-discovery. "You can't run a business and go out and collect 2,000 people's data."

He advised companies to build a repeatable process that locks down key people and important data. "Every time we get a claim we follow the same steps," he said. "If you show good faith effort, it puts you in a good place [with the courts] and the rules contemplate that." Having a retention policy, educating employees on it, and enforcing and updating it, is crucial he said.

But drawing up a retention policy that keeps everyone happy is easier said than done. Some companies have been too draconian with retention and deletion policies, according to Jim Lynch, a partner with Latham & Watkins LLP. He mentioned a client that was recycling emails every two weeks. "The court casts a dark eye on that as they thought it was deliberately keeping documents from opposing parties …it's a cautionary tale."

Several attendees asked about who should be responsible for the data once it's under litigation, the IT department or the legal team? Lynch said that the responsibility would ultimately fall to the most senior people at the company "with in-house legal calling the shots."

To view the entire article, click here
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Source: SearchStorage.com

Judges speak candidly on new e-discovery rules

NEW YORK -- The Supreme Court's amendments to the Federal Rules of Civil Procedures (FRCP), which went into effect Dec. 1, 2006, have opened up a can of worms for IT and legal professionals under litigation, according to judges and attorneys at the Legal Tech conference in New York this week. For storage professionals, the word is that recovering data for litigation purposes is about to become an even bigger headache.

The amendments to the rules address two key areas: discovery of electronically stored information (ESI) and inadvertent production of privileged or "sensitive" company data. These amendments were the focus of a panel at the conference and more specifically, a finer point within the rules that encourages parties to agree on the format in which ESI will be produced. The party requesting documents may ask for them in their native format complete with metadata, e.g. Microsoft Word for a .doc file or Microsoft Excel for an .xls file, as opposed to more generic file formats, as this provides more information about the data. However, in cases that have been heard since the new amendments, the production of metadata along with the actual file is raising eyebrows in the courts as it is dragging out proceedings, experts said.

"Metadata is the disease of the week … lawyers that don't know what's going on will ask for [metadata] because they can," said Ronald Hedges, U.S. magistrate judge for the district of Maryland, during the panel discussion. "Getting metadata will run up the review costs and is probably not worth it."

Echoing this sentiment, Paul Grimm, U.S. magistrate judge for the district of Maryland, said that if the cost of recovering all the data is 60% of the value of the case, it's not worth the effort. "If you're spending $150,000 to produce the information and $250,000 for your lawyer to review it and the case is only worth $500,000 … this is a problem."

To view the entire article, click here
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Source: SearchStorage.com

Motion to Compel Production of Plaintiff's Home Computer Denied as Improper Attempt to Troll for Impeachment Evidence

Hedenburg v. Aramark Am. Food Servs., 2007 WL 162716 (W.D. Wash. Jan. 17, 2007)

In this employment discrimination case, defendant sought to probe the veracity of plaintiff's claims by seeking a "mirror image" of plaintiff's home computer hard drive. Defendant contended that plaintiff’s personal correspondence with unnamed third parties (in the form of emails or internet postings) might reveal discrepancies in her testimony about the impact of the events on her emotional state, or in her testimony about what occurred. Defendant argued that access to a plaintiff's computer was common in employment cases, and offered to have the hard drive mirror image sent to a "special master” in an effort to avoid retrieval of privileged or other non-discoverable information. Plaintiff stated that she made a diligent search for her computer files and contended that she did not have additional information. She objected to the discovery as a "fishing expedition" and refused to permit the defendant access to her home computer's hard drive.

The court distinguished the cases cited by defendant, and observed that the “common thread” of the cases was that such a search is sometimes permitted where the contents of the computer go to the heart of the case. Here, the court found that the central claims in the case were wholly unrelated to the contents of plaintiff's computer, and that defendant was “hoping blindly to find something useful in its impeachment of the plaintiff.” It further noted:

Defendant essentially seeks a search warrant to confirm that Plaintiff has not memorialized statements contrary to her testimony in this case. If the issue related instead to a lost paper diary, the court would not permit the Defendant to search the plaintiff's property to ensure that her search was complete.

The court therefore denied defendant’s motion to compel.

To view the entire decision, click here
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Source: ediscoverylaw.com

Index Engines Redefines eDiscovery, Cutting Response Time from Weeks to Days

New Enterprise Discovery Platform Fundamentally Changes Electronic Discovery Process Eliminating the Need to Restore Backup/Archive Tape Based Data in Order to Retrieve Content

NEW YORK--(BUSINESS WIRE)--Index Engines, the leader in next-generation enterprise discovery solutions, today unveiled a milestone in electronic discovery with the Index Engines Enterprise Discovery Platform. Leveraging patented technologies, Index Engines automates information access and retrieval by streamlining online discovery and introducing the industry’s only solution capable of retrieving content directly from backup/archive tapes without the need to first restore the data back to disk. This approach dramatically compresses the electronic discovery process to save hundreds of hours and tens of thousands of dollars in recovery expenses while eliminating the barriers to online/offline enterprise-wide electronic discovery.

According to a recent report by Forrester Research, the eDiscovery technology market, which in 2006 was worth close to $1.5 billion, will grow to almost $4.9 billion by 2011. The largest direct cost is the collection, processing and review of data, which on average runs about $1,800 per gigabyte. Index Engines addresses this enormous drain on corporate resources by making all corporate data accessible, easily searchable, and available for litigation purposes at a small fraction of this cost.

Current methods of electronic discovery are built around getting the least amount of data required to satisfy legal requirements. Litigators today are afraid to ask for electronically stored information since doing so could put their organization at risk of being asked for an equal amount of actionable data. However, amendments to the Federal Rules of Civil Procedure (FRCP) that went into effect on December 1 require that organizations be prepared to locate and produce information in electronic format— including emails, files, and database data—during legal litigation. To address this challenge, Index Engines delivers fast and easy access to all corporate data irregardless of where it rests, changing the paradigm for eDiscovery.

"End user demand for efficient electronic discovery continues to drive vendor offerings that reduce the amount of time and resources necessary to satisfy litigation requests," said Brian Babineau, senior analyst for Enterprise Strategy Group. "The Index Engines eDiscovery Platform compresses the eDiscovery process to reduce the expensive and time consuming restore process associated with backup and archive tape-based information recovery. This will undoubtedly be of value to organizations challenged with identifying content across the enterprise."

To view the entire release, click here
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Source: BusinessWire

E-discovery appliances find crucial documents

Index Engines, Kazeon and Clearwell Systems are separately announcing appliances that customers can use to discovery electronically stored information -- e-mails, Word documents, PDF files and spreadsheets – for litigation faster than they could by a manual process.

Index Engines this week is unveiling its Index Engines Enterprise Discovery Platform, a software-based appliance that lets legal teams and IT administrators search for and retrieve information for e-discovery purposes.

Kazeon is debuting the Information Server IS1200-ECS, an appliance that also lets users index, identify, search and manage online documents and e-mail messages.

Clearwell Systems next week will introduce version 2.0 of its Clearwell Intelligence Platform software-based appliance.

Being able to electronically discover information from e-mails and other electronic documents is quickly becoming a requirement for many businesses involved in litigation, whether it is a discrimination lawsuit, an Internal Revenue Service Audit or a matter of interstate commerce. Amendments to the Federal Rules of Civil Procedure, which apply to any company in any dispute in federal courts, require them to be able to produce and recover all electronically stored information residing on user laptops, desktops, servers and networked storage.

According to a recent report by Forrester Research, the e-discovery market, which in 2006 was worth close to $1.5 billion, will grow to almost $4.9 billion by 2011.

All these vendors claim that their appliances retrieve data faster than manual processes. Kazeon, for example claims that its IS1200-ECS can reduce the time of e-discovery by as much as 90%.

To view the entire article, click here

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Source: NetworkWorld

Court Denies Motion to Re-Produce Transmittal Emails in Native Format with their Attachments

Williams v. Sprint/United Mgmt. Co., 2006 WL 3691604 (D. Kan. Dec. 12, 2006)

In this decision, Magistrate Judge Waxse addressed plaintiffs’ continuing complaints about defendant’s separate production of transmittal emails and the spreadsheets they transmitted. The issue had been raised and discussed during several conferences with the court, and defendant had agreed to provide a “Spreadsheet Report” that would cross-reference the hard copy transmittal emails to the electronic spreadsheets. However, plaintiffs continued to experience difficulty matching up the transmittal emails and their attachments and moved for the production of the transmittal emails and their attachments in native format. Plaintiffs argued that this would eliminate the complicated, confusing, incomplete, and inaccurate Spreadsheet Reports and put both parties on the same discovery playing field.

Citing the new FRCP Rule 34(b)(iii), court denied plaintiffs’ motion to compel production of transmittal emails and attachments in native format. The court noted that defendant had already produced the emails in hard copy format, and the spreadsheets in native format, and that plaintiffs had not sufficiently explained why they needed the transmittal emails in native format. The court also found that defendant had provided legitimate reasons for its production of spreadsheets separately from their transmittal emails, and that it was not a deliberate effort to stymie plaintiff’s access to that discovery.

Further, the court found that production of the material in native format raised several new issues, including whether native production would permit the redaction or removal of privileged information in the transmittal email or the attachment.

Although the court acknowledged that matching up the transmittal emails with their respective attachments was an “arduous and time-consuming task” for plaintiffs, it concluded that the Spreadsheet Reports prepared by defendant appeared to provide sufficient information for plaintiffs to perform the task. It stated that, to the extent plaintiffs noted any discrepancies in the Spreadsheet Reports, they should communicate them in writing to defendant, and defendant should timely investigate and attempt to resolve any such discrepancies.

To view the entire decision, click here
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Source: ediscoverylaw.com

Dump old gear without leaking company secrets

Getting rid of obsolete IT gear isn't as simple as it used to be. The threat of data loss, coupled with increasingly stringent environmental regulations, has IT pros rethinking their disposal methods.

"In the past, electronic equipment disposal was more of an asset-accounting issue, handled by the financial group. Now we track computing equipment from cradle to grave, recording the final disposition and using checklists to assure that data was appropriately removed," says James Kritcher, vice president of IT at White Electronic Designs in Phoenix.

It's about time, analysts say. According to research from IDC, Gartner and the National Safety Council, about 1 billion computers will become potential scrap between now and 2010, and 150 million obsolete PCs are currently sitting in warehouses, storerooms and closets.

"I have yet to visit an end-user IT organization without the infamous IT closet full of aging equipment that probably holds critical data. But removing that data is still not seen as a pressing business issue," says Joe Pucciarelli, a research director at IDC. "Anyone relying on ignorance of the threat as a business strategy will be unpleasantly surprised."

It's entirely possible that someone could salvage and steal data from computing equipment that is improperly disposed, Pucciarelli says. "Five or 10 years ago the risk might not have been as high, and network executives certainly weren't aware of it," he says. "Today a company could be considered negligent if it isn't aware of the risk of old equipment becoming compromised. The bad guys will figure out how to get through the holes and compromise corporate data."

To view the entire article, click here
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Source: InfoWorld

Mimosa Systems First to Deliver Anytime, Anywhere Email Archive Access from Blackberry, Palm & Windows Mobile Messaging Devices

Mimosa NearPoint Offers Fingertip Live Email Archive Access from a Variety of Heterogeneous Desktop Platforms, Internet Browsers and Mobile Devices

SANTA CLARA, Calif.--(BUSINESS WIRE)--Mimosa Systems™, a leader in unified information management solutions for enterprise content, today announced expanded platform coverage for Mimosa NearPoint for Microsoft® Exchange Server, to include the industry’s first support for handheld messaging devices from market-leading mobile device vendors. Additionally, this platform expansion includes rich support of popular Apple Macintosh mail clients and internet browsers, thus enabling “anytime, anywhere” access to archived email from any platform.
In addition to the rich archive access afforded to Microsoft Windows and Office users, Mimosa now delivers fingertip access to a user’s email, from RIM Blackberry, Windows Mobile 5 and Palm OS based handheld devices.

Users of the Apple Macintosh platform can now seamlessly access their Mimosa Archive from within native and third party mail and internet browsers available for the Apple platform. Mimosa Email archive access is supported from Entourage, Safari, Thunderbird, Firefox, and Opera.

“Mobile messaging carries with it an enormous potential for improving the productivity of individuals in the workplace by freeing them from a desktop computer,” said Michael Osterman, president and founder, Osterman Research, Inc. “By providing secure search and access to a vast history of email from mobile devices, Mimosa is enabling everyday mobile road warriors to be more productive and is empowering the organization to speed business decision making and improve work flow.”

Osterman Research estimates that 41% of workplace email users will be using mobile messaging devices by 2009. However, normal email access on mobile devices is usually just a small subset of the users’ current email, such as the last 10 days. To improve the productivity of this growing number of mobile messaging device users, Mimosa NearPoint’s support for Blackberry, Palm and Windows Mobile 5 devices allows users to search and access any emails across a history of time, including deleted messages. This allows mobile user productivity to soar by putting all of their email information at their fingertips.

To view the entire release, click here
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Source: BusinessWire

Court Declines to Shift Cost of Restoring and Searching A Single Backup Tape, But Limits Scope of Search

Semsroth v. City of Wichita, 2006 WL 3913444 (D. Kan. Nov. 15, 2006)

In this employment discrimination suit, the plaintiffs requested information relating to emails sent to or by other officers within the Wichita Police Department. Through negotiations, the parties narrowed that request to copies of emails from 117 different supervising officers to the extent that such emails existed on a back-up tape of July 23, 2004. The city moved for a protective order that would shift the cost of searching the backup tape to the plaintiffs, estimating the cost to be between $1,950 and $2,625.

Citing the Zubulake decisions, the court declined to conclude that cost of restoring and searching the email backup tape was such as to render that back-up tape "not reasonably accessible because of undue burden or cost." However, it found that limits on the scope of the discovery were nonetheless appropriate under Rule 26(b)(2). Accordingly, the court limited the scope of the discovery in two respects: (1) It struck several search terms proposed by plaintiffs because it concluded that they were common enough that they might well result in identification of a significant volume of irrelevant email; and (2) It reduced the number of mailboxes to be searched from 117 to 50. Plaintiffs would be allowed to choose which 50 mailboxes would be searched.

To view the entire decision, click here
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Source: ediscoverylaw.com

Policy needed to manage electronic, paper documents

Don't delete your e-mails so quickly: New electronic discovery provisions of the Federal Rules of Civil Procedure descended on physicians and others who run businesses on Dec. 1, 2006.

These new rules impose a duty on physicians who find themselves as litigants to produce "electronically stored information." That includes everything from e-mail and voice mail to computer networks and databases. Essentially, the new rules -- which technically govern rules in federal cases but are often quickly adopted by state courts -- elevate electronic information to the same status and importance as paper.

However, the rules leave a lot of questions unanswered when it comes to what should be held, for how long, and how accessible old information should be. So in order to avoid sanctions for failure to comply with these discovery requests, physicians have no choice but to develop a document retention policy.

With a document retention policy in place, covering both digital and paper information, physicians can continue to destroy unneeded or certain older information without having to worry about getting in trouble.

To view the entire article, click here
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Source: amednews.com
By: Steven M. Harris

Deduping Your Way To Storage Efficiency

Data Deduplication Cuts Down On Repeated Data

As the regulations requiring better data archiving on multiple fronts keep marching in, more and more small to medium-sized enterprises are forced to push their storage resources to the max. Public companies have had a taste of the need to keep thorough electronic archives for some time now since the advent of Sarbanes-Oxley. Now even the smallest organizations are forced to get into the act with the passing of new federal rules controlling discovery of electronic documents in the courtroom.

Effective December 2006, the new Federal Rules of Civil Procedure state that electronic documents and communication—including email and instant messages—are as relevant as any paper documents. Businesses are required to have a policy regarding e-documents and must be able to quickly find stored information relevant to a case.

This last caveat is especially headache-inducing to IT staff who must find this information amidst data storage that is potentially already bursting at the seams. Not only does the specific data have to be kept, but it needs to be quickly retrieved, as well.

For this reason administrators have been looking for better ways to cut down on file and data duplication within the storage infrastructure.

As anyone in the IT environment will recognize, there are plenty of times where multiple instances of the same file will be captured and stored. By trimming replicated files down during archiving and backup, an organization can not only reduce the amount of hardware needed for archiving, it can also reduce the even more costly time required for administration and data retrieval.

Redundancy Is Not Always Good

For a long time now, IT professionals have been taught that redundancy is a good thing. While backing up remains important, there can be too much of a good thing. For example, a 2MB file might be emailed to 20 different people—that’s 38MB of data that is unnecessarily stored and backed up and 19 more files that need to be sifted through during retrieval.

Often used interchangeably, SIS (single instance storage) and data deduplication help to reduce the amount of data that is stored, thereby saving space and cutting down on backup time. SIS is typically identified as deduplication that occurs at the file level. In the email example, this means that one copy of the attached file would be saved while the other 19 would be eliminated and replaced by what is called a “stub,” basically a pointer that refers to the stored file. This has long been a feature in Microsoft Exchange, and it was added to Windows Storage Server 2003 R2 in late 2005.

Other technology can take the principle of SIS even further by deduplicating not only at the file level but also at the block level. At the block level, deduplication software will scan for repeated data patterns. It will create a file position pointer to the pattern and only keep the first instance of the pattern. These methods can be particularly useful when small changes are made to files. Rather than keeping both versions in their entirety, deduplication allows for only the changes to be archived and/or backed up.

To view the entire article, click here
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Source: Processor.com

McNulty Memo on Attorney-Client Privilege Blasted for Lack of Change

Revision of the Justice Department's much maligned guidelines for seeking corporate waivers of attorney-client privilege in white-collar investigations has been likened to a "don't ask, don't tell" policy that will drive prosecution waiver demands underground.

And few believe that what has been dubbed the McNulty memorandum, issued on Dec. 12 by Deputy U.S. Attorney General Paul McNulty, will resolve the simmering anger among corporate counsel over what has been called a "culture of waiver."

Now that Congress has returned this month, it is expected to renew a call for a legislative ban on federal prosecutors and regulatory agencies demanding waivers. And a federal rules reform advisory committee has proposed a change in Rule 502 of the Federal Rules of Evidence to codify "limited waiver" of attorney-client privilege, despite wide federal and state court rejection of the concept.

Selective waivers, essentially confidentiality agreements, would allow prosecutors access to internal company investigations, but would seal them from plaintiffs attorneys engaged in civil suits.

McNulty said the department supports the recognition of limited waiver. The danger of waiver exposing corporations to third-party lawsuits and shareholder suits "is a significant concern," McNulty said in a recent interview. "That is why we are supportive of the effort to create a limited waiver and to amend federal rules to allow it to occur. We would like to see some way forward to make it possible for limited waiver," he said.

A DEPARTURE

His comment is a departure from a June decision by the 10th U.S. Circuit Court of Appeals rejecting a partial waiver sought by Qwest Communications International Inc. The decision noted that rather than support Qwest's request for adoption of selective waiver of privilege, the government "carefully took no position," and declined to participate in oral argument. In re Qwest Communications Securities Litigation, 450 F.3d 1179 (2006).

As for Congress stepping in to ban all but voluntary waivers, McNulty said, "I am hopeful the Senate and the House will give the new guidance a chance to work and see how it plays out in our corporate fraud work. I am confident that if they do give it a chance there will be no need for legislation and there will be no need for further guidance."

But efforts at cooperation may not be so amicable in the new year. Critics, who complain that McNulty's 21-page memo fails to provide sufficient protection against government coercion, have started lining up to push for tougher legislation to curb prosecution waiver demands and to oppose legitimizing "partial waivers."

At a Jan. 12 meeting in Phoenix, a subcommittee of the Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States heard public comments on proposed Rule 502 changes.

A 2003 memo by former Deputy Attorney General Larry D. Thompson, which told prosecutors considering whether to charge a corporation criminally to take its cooperation into account, turned the waiver controversy into a subject of national debate. Waiver of attorney-client or work-product privileges was considered a sign of cooperation. Companies failing to cooperate could be indicted along with suspect executives.

The Justice Department was tampering with a privilege that has existed in common law for more than 400 years of balancing the courts' search for truth with a need to protect defendants' right to counsel, according to Steven K. Hazen, an advisor to the American Bar Association task force on Rule 502 and the State Bar of California Business Law Section. "Confidentiality is like toothpaste, once it is out of the tube it is out for good," he said.

A survey earlier this year by the Association of Corporate Counsel, representing 19,000 public companies, found that nearly 75 percent of inside and outside counsel said government agencies expect a company under investigation to waive legal privileges. In addition, it found that in the last five years, 51 percent of outside counsel and 30 percent of in-house counsel reported the government expected waivers in order to be eligible for leniency.

To view the entire article, click here
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Source: LAW.com
By: Pamela MacLean

Unlocking Keywords to Ensure Effective E-Discovery

The notion that words hold mythic power has been with us as long as language.
We know we don't need to ward off evil spirits, but we still say, "Gesundheit!" when someone sneezes. Can't hurt.

But misplaced confidence in the power of word searches can seriously hamper electronic data discovery. Perhaps because keyword searching works so well in the regimented realm of automated legal research, lawyers and judges embrace it in EDD with little thought given to its effectiveness as a tool for exploring less-structured information. Too bad, because the difference between keyword searches that get the goods and those that fail hinges on thoughtful preparation and precaution.

TEXT TRANSLATION

Framing effective searches starts with understanding that most of what we think of as textual information isn't stored as text. Brilliant keywords won't turn up anything if the data searched isn't properly processed.

Take Microsoft Outlook e-mail. The message we see isn't a discrete document so much as a report assembled on-the-fly from a database. As with any database, the way information is stored little resembles the way we see it onscreen after our e-mail program works its magic by decompressing, decoding and decrypting messages.

Lots of evidence we think of as textual isn't stored as text, including fax transmissions, .tiff or PDF documents, PowerPoint word art, CAD/CAM blueprints and Zip archives. For each, the search software must process the data to insure content is accessible as searchable text.

Be certain the search tool you or your vendor employ can access and interpret all of the data that should be seen as text.

RECURSION

Reviewing a box of documents that contains envelopes within folders, you'd open everything to ensure you saw everything.

Computers store data within data such that an Outlook file can hold an e-mail transmitting a Zip archive containing a PowerPoint with an embedded .tiff image.

It's the electronic equivalent of Russian nesting dolls. If the text you seek is inside that .tiff, the search tool must drill down through each nested item, opening each with appropriate software to ensure all content is searched. This is called recursion, and it's an essential feature of competent search. Be sure your search tool can dig down as deep as the evidence.

To view the entire Article, click here
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Source: LAW.com
By: Craig Ball

Federal e-mail rule change could have states following suit

When it comes to online matters such as e-mail and BlackBerry messages, companies with a standard deletion policy should double-check what goes into the trash bin before pressing that delete key on Wednesday (Jan. 31).

Amendments to the Federal Rules of Civil Procedure that went into effect Dec. 1, require companies, large and small, to keep track of all e-mails, instant messages, text messages, BlackBerry messages and any other electronic file that could become pertinent to a federal court case.

“These changes are dealing with the question: what should we be doing with electronically stored information? The concepts are universal,” said Tony Reid, a principal in the Forensics and Dispute Services Practice at a Deloitte Financial Advisory Services LLP office in Jacksonville, Fla.

The new rules require both parties bring all electronic documents during discovery.Discovery is the legal process of sharing or exchanging evidence between parties before a trial begins. This process is intended to promote early cooperation and to minimize later disputes.

Companies must have some kind of record keeping system for these files so that they can be retrieved quickly when needed.Reid believes a lot of companies have heard about the change but don’t know what the changes mean for them and what they need to do about it.

“Companies tend to leap to a technology solution immediately. Before they go and get that, they need to sit down and look at the methodology for their whole process and ensure that the company has proper compliance before ever implementing technology,” Reid said.

According to Reid, companies knowing and understanding what information they possesses and where they have it, on top of having a standardized, repeatable process for retention is going to be the most effective way, monetarily and logistically, for companies to comply with the new regulations.

A survey of CFOs, tax directors, finance directors, attorneys and controllers, taken in November by Deloitte’s headquarters in New York, showed that 70 percent of respondents said they needed additional training on their company’s retention policies and procedures and more than half of respondents said that they do not make backups of their electronic data separate and distinct from what the company’s IT department provides.

To view the entire Article, click here
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Source: AzBiz.com
By: Joe Pangburn

Court Denies Request for Production of Legal Hold Notice Issued by Defendant

Gibson v. Ford Motor Co., 2007 WL 41954 (N.D. Ga. Jan. 4, 2007)

In this personal injury product liability case, plaintiffs sought production of the legal hold notice issued by defendant to its employees, among other categories of material. The court denied the request for the legal hold notice, concluding that it was not “reasonably calculated to lead to the discovery of admissible evidence.” The court explained:

The document Plaintiffs request is simply a description of material employees were instructed not to discard. In the Court's experience, these instructions are often, if not always, drafted by counsel, involve their work product, are often overly inclusive, and the documents they list do not necessarily bear a reasonable relationship to the issues in litigation. This is not a document relating to the Defendant's business. Rather, the document relates exclusively to this litigation, was apparently created after this dispute arose, and exists for the sole purpose of assuring compliance with discovery that may be required in this litigation. Not only is the document likely to constitute attorney work-product, but its compelled production could dissuade other businesses from issuing such instructions in the event of litigation. Instructions like the one that appears to have been issued here insure the availability of information during litigation. Parties should be encouraged, not discouraged, to issue such directives. Defendants are not required to produce these materials.

To view the entire decision, click here
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Source: ediscoverylaw.com

E-Discovery: Beyond E-mail and Instant Messaging Web Conference, Feb. 8, 2007; How Accessible is your Digital Information?

Xtalks is pleased to present the web conference E-Discovery: Beyond Email and Instant Messaging, scheduled for February 8, 2007. Michael Heyrich, Assistant General Counsel, Citigroup, Inc. and Peter Pepiton II, Esq., Discovery Product Manager, CA discuss the new FRCP amendments and how to improve your corporate records management procedures.

Chicago, IL (PRWeb) January 25, 2007 -- Xtalks is pleased to present the web conference E-Discovery: Beyond Email and Instant Messaging, scheduled for February 8, 2007. Michael Heyrich, Assistant General Counsel, Citigroup, Inc. and Peter Pepiton II, Esq., Discovery Product Manager, CA discuss the new FRCP amendments and how to improve your corporate records management procedures.

The new amendments to the Federal Rules of Civil Procedure (FRCP), effective December 1, 2006, focus on e-discovery and the accessibility of digital information. This requires collaboration between in-house counsel, the IT department, and process managers.

How Accessible is your Digital Information?

Emails, instant messages and voice mails can no longer just be destroyed. But it goes beyond these applications. What else needs to be preserved and how can this data be managed and stored? How is the information accessed from primary files, copies, back-up files, metadata, versions, system data, and legacy data? What is the obligation of ISPs, ASPs, data storage facilities and outsourced contractors?

To view the entire release, click here
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Source: emediawire

NIST stages competition to improve encryption standard

Faced with declining confidence in the decade-old encryption algorithm that has been the basis for much of the security protecting transactions on the Internet, the National Institute of Standards and Technology has begun a competition to define a new standard.

Federal Information Processing Standard 180-1 – otherwise known as Secure Hash Algorithm-1 (SHA-1) – has been widely used in government and industry since 1994. It’s the basis for the Secure Sockets Layer private-key technology that secures online information such as credit card numbers and other security technologies.

Chip makers also used it for the hardware-based security that is built into many PCs and other devices.

SHA-1 been considered the gold standard among encryption algorithms, and because as many as 280 hash operations were considered necessary to find a weakness in it, it is considered virtually unbreakable.

But that confidence began to slip several years ago when a group of Chinese researchers published a method for breaking SHA-1 with just 269 operations. In the past two years, the number has been decreased even further.

If the break point is brought down to about 240 operations, breaking SHA-1 can easily be executed on current high-end PCs in a few hours.

To view the entire article, click here
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Source: FCW.com
Bt: Brian Robinson

Autonomy Introduces Meaning Analytics Warehouse

First Warehouse to Perform Bulk Analysis and Mining of Historical Data by Understanding the Meaning Information

CAMBRIDGE, England and SAN FRANCISCO, California, January 25 /PRNewswire-FirstCall/ -- Autonomy Corporation plc (LSE: AU. or AU.L), a global leader in infrastructure software for the enterprise and proponent of meaning-based computing, today announced its Meaning Analytics Warehouse, a new IDOL module and the first data warehouse to perform bulk analysis and mining of the vast amounts of information contained in the enterprise including video, voice, email, applications, databases and hundreds of other file types by understanding the concepts, context and patterns contained in the information.

The Meaning Analytics Warehouse module provides insight into information stored in silos across an enterprise by indexing, transforming and analyzing this information based on its meaning and relationships. It builds on and complements Autonomy's established IDOL platform - which allows enterprises to search and process relevant data in real-time across all data types - with the addition of historical bulk analysis capabilities.

This new capability makes mining of information from all information sources readily available for applications including top end business intelligence, electronic discovery, security and surveillance, and other applications requiring insight created as a bi-product of real-time or transactional systems.

To view the entire article, click here
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Source: Yahoo

Are You Ready for E-Discovery?

IT professionals can save themselves a great deal of hassle by working with counsel to standardize on a communication methodology that addresses potential discovery-related activity. A useful strategy would define a communication channel with counsel whereby IT personnel can be brought in to the discovery process as early as possible.

If you're like most of us in IT, you probably have a relatively small number of individuals in your firm that you're used to working with fairly closely.

For example, if you're a development manager, you probably work closely on a daily basis with the business folks to understand their requirements for the systems you develop. If you're a network architect, you might work closely with software architects in order to optimize the network to support the applications that people use daily.

However, no matter where you are in IT and no matter what firm you work for, chances are that one area of the firm you don't work closely with is inside counsel -- in other words, legal.
Now, that's not to say that there's never any interaction between these two areas. For example, in the case of human resource investigations or employee terminations, both areas might be brought in to perform a certain role.

However, if you're an IT person and you have a speed dial, chances are that nobody from the legal team is on it. Get ready, though, because new rules for data discovery could be about to change all that.

To view the entire article, click here
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Source: eCommerceTimes
By: Ed Moyle

Court Denies Request for Production of Legal Hold Notice Issued by Defendant

Gibson v. Ford Motor Co., 2007 WL 41954 (N.D. Ga. Jan. 4, 2007)

In this personal injury product liability case, plaintiffs sought production of the legal hold notice issued by defendant to its employees, among other categories of material. The court denied the request for the legal hold notice, concluding that it was not “reasonably calculated to lead to the discovery of admissible evidence.” The court explained:

The document Plaintiffs request is simply a description of material employees were instructed not to discard. In the Court's experience, these instructions are often, if not always, drafted by counsel, involve their work product, are often overly inclusive, and the documents they list do not necessarily bear a reasonable relationship to the issues in litigation. This is not a document relating to the Defendant's business. Rather, the document relates exclusively to this litigation, was apparently created after this dispute arose, and exists for the sole purpose of assuring compliance with discovery that may be required in this litigation. Not only is the document likely to constitute attorney work-product, but its compelled production could dissuade other businesses from issuing such instructions in the event of litigation. Instructions like the one that appears to have been issued here insure the availability of information during litigation. Parties should be encouraged, not discouraged, to issue such directives. Defendants are not required to produce these materials.

To view the entire article, click here
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Source: eDiscoveryLaw

ESI Come, ESI Go: Next Steps for E-Discovery

Since December, the US civil code has included electronically stored information (ESI) in its requirements for legal discovery. But surveys show most companies are unprepared to comply. What’s the holdup, and how can companies move toward sustainable e-discovery management?

When amendments to the US Federal Rules of Civil Procedure (FRCP) created new requirements for e-discovery last December, the corporate world shuddered. The wheels of justice had finally hit the information superhighway; it seemed no e-mail would ever be safe again.

Under the FRCP’s General Provisions Governing Discovery; Duty of Disclosure, the term electronically stored information (ESI) replaced the musty data compilation, indicating the court’s recognition that the realm of computerized information is much broader than 1970s databases. Moreover, the change made ESI an explicit component of legal discovery. Going forward, the court would expect and inspect all kinds of digitally stored records, regardless of how they were generated.

Digital information includes e-mail (and associated attachments), databases, text documents, spreadsheets, instant and text messages, and digital voice mail messages to name a few. Digital information can be produced from a diversity of software including Microsoft Office applications, financial software such as Intuit QuickBooks, e-mail interfaces, and instant messaging clients. As of December 1, 2006, all of these information formats are on the legal hit list.

The Uphill Battle of E-Discovery

E-discovery requirements impose unique challenges on businesses because of the way electronic information is created, modified, communicated, stored, and scrapped by computer systems.
1 Litigators and judges must now sift through an enormous volume of data—more than 800 megabytes per employee per year every year. 2

Storing the information is one thing; enabling its fast and painless retrieval is a much more complex process that includes:

Tracking information that meets specific discovery criteria

Establishing and implementing digital information archiving rules

Determining how archiving rules should be applied to various roles, locations, and workers
Assessing the consequences of noncompliance.

Distribution compounds the challenges of volume. Often, the same information is stored in multiple locations at the same time. For example, when an e-mail is sent across the Internet, one or more systems generally replicate the message. After it reaches its location, it’s stored on both the sender’s and receiver’s computers. If those computers are on a corporate network, the message is likely to be backed up daily in a centralized archive. And both the sender and recipient are free to copy it to other people, network servers, local hard drives, and storage media.

To view the entire article, click here
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Source: ITCInstitute.com
By Mark Edmead

More E-Mail, More Problems -- Can't Live With It; Can't Live Without It. E-mail Is More Important-and Problematic-than Ever

E-mail matters-ask Eric Govan. Last year Govan, a public relations manager with the Golden State Warriors basketball team, inadvertently sent a joke e-mail with the subject line "Ghetto Prom" to his list of sportswriters and other media contacts across the country. Shortly after, team president Robert Rowell sent out his own e-mail, according to The Associated Press, saying, "It came to my attention moments ago that one of our employees had inadvertently sent out an e-mail that was in extreme poor taste and completely unprofessional. ... The employee responsible for sending this e-mail has been dealt with in an appropriate manner." Translation: canned.

A business user in the United States sends and receives, on average, 171 e-mails a day, and that volume is expected to double by 2010, according to the Radicati Group, a research firm. As e-mail proliferates, so does the number of ways for it to be misused and mismanaged. Out-of-control e-mail isn't only a cost burden and a time suck; it's also a legal and regulatory liability.

E-mail foibles can lead to firings, public embarrassments, and, in extreme cases, even criminal charges. In November, Deutsche Bank resigned as an underwriter to Hertz Global Holdings' initial public offering after a Deutsche Bank employee sent e-mail with inside information to some 175 accounts. Last month, the National Association of Securities Dealers cited-and may soon fine-Morgan Stanley for allegedly destroying millions of e-mails it had earlier claimed were lost in the 9/11 terrorist attacks. In another case, former CTO of a wireless telemetry startup, William Dobson, faces up to 15 years in prison for allegedly intercepting e-mails of the CEO and VP of engineering.

A company with 5,000 users can expect 900 unauthorized releases of private information and 150 inappropriate e-mails every day, according to e-mail management provider MessageGate. And that company will store 3.4 terabytes of nonbusiness e-mails a year. Some 6% of users surveyed by Radicati say they've e-mailed confidential company information to someone they shouldn't have, and 42% say they've been subjected to offensive language in an e-mail from a co-worker. Only half of those respondents say their companies publish an e-mail use policy.

To view the entire article, click here
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Source: Information Week

The Real Implications of the New Rules on EDD

Effective Dec. 1, 2006, the Federal Rules of Civil Procedure were amended to provide definition, structure and predictability to electronic discovery. For many litigators, the rule changes represent a fundamental shift in the way we prepare for and manage the discovery of electronically stored information (ESI) for federal cases.

Changes to state rules are not far behind. In fact, several states, such as California, Maryland and New Hampshire, are in various stages of implementing rule changes. Similar changes are already in effect in Idaho and New Jersey. While the objectives of the new Rules are clear, the necessary steps to comply with them are not. This article examines the major FRCP rule changes and their real implications. It provides a roadmap for becoming compliant while controlling business risks and understanding how the new rules can be leveraged in the courtroom.

EARLY ATTENTION TO ELECTRONIC DATA DISCOVERY

Rules 16 and 26 were amended to provide the court with early notice of e-discovery issues. Specifically, Rule 16(b) now states that the scheduling order must include "provisions for disclosure or discovery of electronically stored information" and "any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production." Rule 26(f) requires that parties "discuss any issues relating to preserving discoverable information and to develop a proposed discovery plan." Before the new Rules, this plan was often communicated well into the litigation process, years afterward in some cases. But since these new requirements are now part of the initial "meet and confer", the time frame has been significantly reduced. Under Rule 16(b), parties must "meet and confer" at least 21 days before the scheduling conference (which must occur within 120 days after filing the lawsuit). The bottom line is that parties must define and share their e-discovery plans within the first 99 days of a case.

The real implication of this rule change is that the number of cases subject to rapid case assessment, litigation holds, evidence preservation and collection will increase significantly. Large U.S. companies are already concurrently managing 556 cases on average, with an average of 50 new disputes emerging each year.[FOOTNOTE 1] Moreover, due to the increased number of requests and the large amounts of data now categorized as discoverable ESI -- e-mail being the most voluminous -- these rules will significantly impact corporate resources and e-discovery processes. This will be especially challenging in e-mail-related cases, where the job of finding and sifting through repositories of e-mail is notoriously costly and timely.

To view the entire release, click here
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Source: LAW.com
By: Scott Oliver

Security Issues for Every Company

You needn't be big to face big threats to proprietary information - from without and within

It's no secret that small and mid-sized companies are just as vulnerable to losing vital business data as the big guys.

Despite that, they're less likely to do risk assessments and take preventive measures to protect themselves.

"It's difficult to get people to spend money on something that hasn't occurred or if they don't think they have a problem," says Frank E. Rudewicz, managing director for UHV Advisors in Hartford. "But they end up spending much more money reacting than [they would] if they had done a routine security audit."

"Smaller organizations often think, 'No one is going to attack us,'" says Jeffrey Ziplow, a partner at Blum Shapiro Consulting in West Hartford. "But the reality is the hacker doesn't know whether it's a small or large company. A lot of times they just scout around."

Moreover, smaller companies may not realize that the most damage is often done by employees.

The American Society for Industrial Security's (ASIS) 2006 Trends in Proprietary Loss Survey of Fortune 100 companies "showed the No. 1 threat was internal," Rudewicz says, and that risks have increased through "exploitation of trusted relationships, including vendor, customers, joint ventures and subcontractor/outsourced providers."

According to a 2005 survey by the Ponemon Institute, which tracks information and privacy management practices in business and government, 69 percent of data breaches were made by insiders - and 39 percent of data breaches had to do with confidential business information.

The institute's 2006 National Survey on Managing the Insider Threats concluded the three top threats to data integrity were "missed or failed security patches on critical applications, accidental or malicious insider use of sensitive or confidential data and virus, malware and spyware infections."

To view the entire release, click here
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Source: Conntact

Clearwell Soars Past 100 Million Emails and Documents Analyzed, Secures Banner Customers

Legal Service Providers, Government Agencies and Leading Companies Save Millions of Dollars with The Clearwell Intelligence Platform

SANTA CLARA, Calif., Jan. 22 /PRNewswire/ -- Clearwell Systems, Inc., apioneer in Email Intelligence, today announced the Clearwell IntelligencePlatform(TM) has been used to analyze more than 100 million emails anddocuments in response to eDiscovery requests, regulatory inquiries andcorporate investigations. Since Clearwell's launch last year, leadingcompanies in financial services, energy, high technology, manufacturing,retail and consulting have deployed the software.

A selection of Clearwell's customers includes:

-- Leading enterprises such as The Boeing Company, BP, Constellation Energy, International Network Services, KLA-Tencor and Transatlantic Reinsurance Company;

-- Legal service providers such as Alvarez & Marsal, BlueStar Computer Solutions, Inc., Litigation Solutions Inc., ONSITE3 and Pooley and Oliver, LLP; and,

-- Large government agencies such as the Department of Health and Human Services/Office of Inspector General.

The Clearwell Intelligence Platform automates the manual, costly andtime consuming process of analyzing emails and documents. "Our firm firstpurchased the Clearwell solution to automate analysis and review for aclient case involving large amounts of electronic evidence," said ScottOliver, partner at Pooley and Oliver, LLP. "The time and cost savings wereso great that, within months, we purchased more and the product is nowbeing used by a team of lawyers for analysis of an even larger client case.Clearwell delivers a compelling ROI for our clients, and enables us toprovide better service and take on more cases."

To view the entire release, click here
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Source: prnewswire

Asigra, Inc. Comments Recent Deployment of Backup Lifecycle Management Storage Solution

Asigra, Inc. today reveals how Managed Service Providers (MSPs) can reduce their customers’ data storage costs and help them to comply with data retention laws with the deployment of Asigra’s Backup Lifecycle Management™ (BLM) storage solution.

Asigra BLM manages data during all backup archiving processes, separating the data into varying levels of protected data: current critical data, which is permanently stored online for fast recovery; and archivable important data that may be needed at a later time but is not likely to be accessed in the near future. Backup data stored in an archive means it is not immediately retrievable like backup data stored online, but it is significantly more economical than storing it online.

According to Eran Farajun, executive vice president of Asigra, “As every company’s digital data is growing at an increasing rate, companies are experiencing mounting storage costs, so they are looking for cheaper storage options for their less critical backup data. Asigra BLM allows our service providers to offer customers a lower cost service for archiving long-term backups, which can be quickly retrieved from the BLM archive back to the customer. BLM also allows service providers to help customers with their data compliance requirements, as BLM manages the movement of the different types of data as well as assigning dates for the final destruction of specific data, along with issuing destruction certificates.”

In order to save on storage costs, companies often and mistakenly choose to store the less critical backup data offline in their own vault, while their critical backups remain online in the vault of their service provider. Alternatively, they opt to delete the non-critical data altogether.

However, there are many problems associated with both of these options:

- The customer can never retrieve the data that has been deleted
- The customer may be in breach of data compliance laws if the data is deleted
- It is cumbersome to manually separate the critical backup data from the long-term backup data
- If the customer wishes to retrieve archived backup data from their own vault, the data cannot be transported back to the online storage medium from where it is easy to restore the data

To view the entire release, click here
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Source: newswiretoday.com

Court Modifies Its Prior Cost-Shifting Formula

Quinby v. WestLB AG, 2007 WL 38230 (S.D.N.Y. Jan. 4, 2007)

In this opinion, the court modified its September 5, 2006 order (summarized here) which shifted to the plaintiff 30 percent of the costs of producing the emails of one witness (Barron) restored from backup tapes. After that prior order was entered, defendant submitted an affidavit from its vendor stating that 14 backup tapes had been restored in order to recover Barron’s emails, and that the total cost was $9,187.50. Plaintiff submitted a letter and exhibits in response, pointing out that the 14 tapes also contained the emails of other custodians whose emails were ordered produced and the tapes would, therefore, have had to have been restored in any event. Plaintiff argued that she should be responsible for only 30 percent of the share allocable to Barron’s emails.

The court agreed, and found it unfair to shift a portion of the entire cost since the backup tapes would have had to have been restored even if Barron’s emails had not been ordered produced. The court set out its formula for calculating plaintiff’s share of the cost, which amounted to $448, and ordered plaintiff to remit that amount to defendant within ten days.

To view the entire order, click here
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Source: ediscoverylaw.com

Recounting Defendants' "Systemic and Shocking" Discovery Abuses, Court Imposes Severe Sanctions and Appoints Discovery Monitor

Wachtel v. Health Net, Inc., 2006 WL 3538935 (D.N.J. Dec. 6, 2006)

In this lengthy opinion, the court ruled upon plaintiffs’ motion for entry of default based upon defendants’ discovery misconduct and other discovery-related motions. Although it reserved judgment on whether a default should be entered, the court found that a variety of severe sanctions were appropriate given defendants’ “systemic and shocking” discovery abuses. The sanctions included: (1) deeming certain facts as admitted by defendant for all purposes in the litigation, including equitable relief; (2) precluding defendant's use of documents not produced in discovery; (3) striking privilege assertions as to certain documents; (4) imposing monetary sanctions in an amount to be determined after the court considered defendant's financial situation; and (5) appointing a discovery monitor at defendants’ expense to review defendants’ compliance with the court's discovery orders. The court explained:

Defendants' strategy has been a concerted war to waste huge time and resources of Plaintiffs in pursuing this litigation. It gives “scorched earth litigation” a new standard of brashness. Defendants have also forced the Court to devote years to police discovery abuses over and over again. Defendants continue to ignore the Court's rulings over and over again. Defendants' persistent pattern of delay, defiance of Court Orders, evasive responses to Plaintiffs' discovery requests, and lack of candor have resulted in crushing prejudice to Plaintiffs in the form of forgetful witnesses and extraordinary expenditures of time, effort, and money. The wanton waste of judicial resources caused by Health Net, as exemplified herein, is equally staggering.

The court noted that the Magistrate Judge had issued “dozens and dozens” of orders since the summer of 2003 in furtherance of her efforts to supervise discovery and pretrial procedures in the case, but that the Health Net defendants had ignored many of these orders by “interpreting” them to avoid their discovery obligations.

The opinion details many of defendants’ discovery failings and describes the prejudice that resulted both to plaintiffs and to the court. The court faulted, among other things, defendants’ approach to responding to discovery requests:

Health Net's process for responding to discovery requests was utterly inadequate, relying on an in-house paralegal also responsible for approximately 60 other cases. Testimony . . . revealed that when Health Net received document requests from Plaintiffs, it did not disseminate a comprehensive notice to employees who could reasonably be anticipated to possess responsive documents. Instead, Health Net directed its outside counsel to work with HNNE's local paralegal who would approach selected individuals about certain specific documents pursuant to instructions from Health Net's outside counsel. Once he asked these specific individuals for specified documents, the paralegal generally did not follow up with them to see if they had further responsive documents unless specifically instructed to do so by outside counsel or by the senior litigation counsel for Health Net, Inc. Nor did the paralegal attempt to identify other employees with responsive documents. Health Net relied on the specified business people within the company to search and turn over whatever documents they thought were responsive, without verifying that the searches were sufficient. The process, in sum, was one of looking for selected specific documents by a specific person rather than all responsive documents from all Health Net employees who had such documents. Many of these specific employee-conducted searches managed to exclude inculpatory documents that were highly germane to Plaintiffs' requests.

To view the entire decision, click here
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Source: ediscoverylaw.com

How Much Data Leaks Via Email?

One of the biggest computer security issues facing companies today is compliance. Between regulatory mandates and private-sector mandates, companies are faced with an avalanche of policies and requirements to comply with. A serious concern is sensitive company information leaving the network via email. Sendmail has created a new service offering designed to help companies assess this risk and provide recommendations to help them stop the data leakage.

Sendmail Risk Assessment Program Analyzes outbound email for data leakage and compliance violations and offers recommendations to plug the holes www.Processor.com/SendmailRisk

Kimberly Getgen Bargero, vice president of marketing at Sendmail, says, “The Send-mail Risk Assessment Program measures the security and compliance risks in a corporation’s outbound email discovered during a 48-hour analysis period. This service is significant in that it is the first step in understanding the true compliance, security, operational, and competitive risks contained in emails sent outside a corporation.”

The analysis period focuses on best practices for meeting risk management, security, and compliance standards. The results of the assessment reveal key metrics that companies should be aware of in order to protect their brand, intellectual property, and overall competitive advantage.

The Risk Assessment monitors for and discovers data or intellectual property leaving the organization via outbound email. It also looks for data that might violate Sarbanes-Oxley, HIPAA, Gramm-Leach-Bliley, or other compliance standards. Sendmail’s service can help customers identify compliance violations and other examples of employee or customer data leaving the network.

To view the entire decision, click here
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Source: Processor.com

Upgrading Litigation Support Tech for Massive EDD Matters

Dorsey & Whitney LLP is a firm of more than 600 lawyers with a litigation and arbitration practice in 15 locations in the United States and in London, Hong Kong and Shanghai. I joined the firm's New York office in the fall of 2005 and assumed, among other duties, the task of advising on the litigation department's deployment of discovery technology for large and complex matters. Before arriving at Dorsey, I had trained for several years in a litigation practice involving a broad range of suits and regulatory investigations implicating multiple jurisdictions and thus had become steeped in many of the electronic evidence and discovery issues facing the firm's New York-based international practice.

Just weeks before my arrival at the firm, Dorsey had taken on a federal litigation for a long-standing client, a U.S. subsidiary of a Japanese global technology concern. The litigation had evolved into a class action, consolidating several consumer suits alleging damages of more than one billion dollars. Discovery proceeded along a brisk schedule set in the Southern District of New York, arguably the world's most sophisticated court with regard to electronic discovery issues. In part due to the management of the electronic evidence in this dispute, Dorsey's client obtained an order in September 2006 denying class certification and strongly pointing toward the ultimate disposal of the matter. As discussed below, our implementation of the Ringtail Legal 2005 hosted ASP solution -- and the support by FTI Consulting -- was important in this very favorable outcome.

SCALABILITY AND CREATIVITY

Before my arrival, Dorsey had contracted with a top tier litigation support services provider to process the electronic data, host the document review in its proprietary technology and generally manage the electronic discovery for the large class action. Typical electronic discovery commenced with the handling of e-mail files and other electronic documents analyzed by a team of contract and permanent attorneys consisting of more than 20 reviewers.

After my arrival, the focus of electronic discovery turned to a variety of the client's corporate databases, based in several locations and time zones. These databases concerned highly customized and extensive data networks covering a range of areas of the client's businesses and integrating data from around the world.

It was apparent to the core team of litigators managing the discovery process that the technology and support Dorsey originally retained for this matter could not present sufficient scalability and creativity to take on these data sets and turnaround productions with the needed speed. Thus, we contacted FTI Consulting to discuss stepping into the database discovery facet of the case. After discussing the key details of that aspect of discovery, we retained FTI and began to deploy Ringtail Legal 2005, joining several other firms as early adopters of this upgrade to Ringtail's CaseBook, a Web-based, SQL-backed litigation support application. This provided both the firm's, and my, introduction to Legal 2005. I had a good deal of experience with prior iterations of the CaseBook application and, as reflected below, had confidence in bringing on the new version of this software for this matter, given that FTI would provide its hosting and consulting.

We needed to prepare to produce responsive database material from among millions of records in several different sources managed by as many different administrators and situated in as many different hardware environments. With FTI's coordination, our digital forensics consultant provided duplicates of its preservation copies of these databases to FTI for processing and loading for keyword searching and online review of content within Legal 2005.

As Legal 2005 easily managed original data sets exceeding a hundred fields pulled from multiple tables in its original environment, FTI demonstrated to Dorsey the scalability of Ringtail's flagship application. Legal 2005 was able to bring in those data without difficulty, even configuring the review interface to display the key content in a similar manner to the original database interface. Legal 2005 also permitted our extensive text searching and online review of content, satisfying our keyword criteria.

The combined features of conventional field-based and text-based searching via the dtSearch engine were integral in the sorting and culling of this unwieldy data set. After Dorsey's review process of each of the various databases, FTI was able to instantly report out of Legal 2005 the unique cross-references relied on by the digital forensics consultant. Upon receipt of this reporting, the forensics consultant then immediately prepared a given production data set containing the fields included in the responsive records, providing the data in the manner fully in keeping with their native form. This workflow was available for each of the individual productions of the client's relevant databases.

To view the entire decision, click here
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Source: Law.com
By: Joseph Perkovich