Court Orders Solicitation of Bids From Forensic Computer Technicians to Assess Whether the Search and Restoration of Additional Data From Defendant's

Peskoff v. Faber, 2007 WL 2416119 (D.D.C. Aug. 27, 2007)

In this opinion, United States Magistrate Judge John M. Facciola continued attempts to resolve ongoing discovery issues in Plaintiff Jonathan Peskoff’s suit to recover damages for financial injury resulting from Defendant Michael Faber's operation of a venture capital fund, called NextPoint Partners, LP. Peskoff and Faber were managing members of NextPoint GP, LLC ("NextPoint "), the general partner of the venture capital fund. Peskoff left NextPoint in January 2004 and filed an action against Faber shortly after.

In discovery, Peskoff sought documents, including email from his time at NextPoint Management. Faber’s initial productions of email and other documents did not include any emails that Peskoff received or authored between mid-2001 and mid-2003. In a previous ruling centering on the missing data, the court noted that the unresolved issue was whether such emails still existed and could be located, and whether the efforts made to date to locate them had been adequate. The court had ordered the Defendant to conduct additional searches for any email involving Peskoff, and to submit a sworn statement and provide testimony at an evidentiary hearing on the nature and adequacy of such searches. (For additional background information, click on the links to see summaries of two previous orders in this case related to this issue, entered July 2006 and February 2007).

In this opinion, the court noted that Faber had failed to appear at the subsequent evidentiary hearing, and that this failure to comply with the court’s previous order would be construed against him. The court then relied on the testimony made by others at the hearing, and on other available information, and concluded that the production to date raised many questions regarding its completion and the sufficiency of the searches performed. The court also concluded that any additional searches would require additional resources beyond the tools available to NextPoint.

The court then turned to consider whether a forensic examination should be undertaken to look for additional material, and if so, who should pay for such an examination. The court noted it had the authority to limit discovery under Fed. R. Civ. P. 26(b)(2)(C). The court applied the standard articulated in the revised version of section (iii) of this rule that will become effective December 2007, observing that the revised version made the standard for limiting discovery somewhat clearer. That subsection gives the court the authority to limit the frequency or extent of discovery if:

the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
(Italics added to indicate new language.)

Observing that the final point regarding the importance of the discovery to resolving the issues in the litigation was challenging because “the importance of the results of the forensic examination to be had can only be accurately assessed after it is done,” the court nonetheless concluded that the information that had been produced thus far permitted the court to infer the possible existence of additional similar information warranting judicial action.
Noting the importance of considering the potential expense of forensic analysis, the court ordered the parties to collaborate to create a request for proposals seeking bids from qualified forensic computer technicians to determine the likely cost of searching for, restoring and converting email from the computers located at NextPoint. The court stated this approach was justified “because the emails are relevant, the results of the search that was conducted are incomprehensible, and there is no other way to try to find the emails.”

The court also addressed two new arguments presented by Faber’s attorney, also serving as counsel to NextPoint, regarding the role and obligations of NextPoint in the discovery. Counsel had argued that the court’s Rule 26 analysis was improper because the steps being proposed by the court were centered on NextPoint’s data systems. Because Peskoff filed suite against Faber, not NextPoint, counsel argued that NextPoint was a third party that was never obligated to preserve any electronic documents, and that any such document requests directed at NextPoint required a Rule 45 subpoena. The court ruled that Faber’s failure to state these objections in a timely manner had resulted in a waiver:

Had NextPoint wanted to take the position that it was a third party in the conflict between Peskoff and Faber, then Mr. Davis should have resisted any discovery served on NextPoint in the first place on the grounds that the information belonged to NextPoint and not to Faber. Moreover, if Faber had needed authority to produce discovery on behalf of NextPoint, then no discovery should have been produced from NextPoint in response to Peskoff's discovery requests at all. . . . To assert this position now at this late date simply suggests a newfangled theory by which Faber’s counsel attempts to thwart Peskoff’s legitimate discovery efforts, and the Court will not allow it.

Finally, the court expressed its concern over apparent inaccuracies or inconsistencies in the testimony that had been provided by both Peskoff’s counsel and Faber’s counsel, ordering each of them to submit to the court written explanations for erroneous and/or contradictory statements they had made regarding ESI discovery issues in the case.

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Source: ediscoverylaw.com

Electronic data discovery is hot business

In 1987, there was one business dedicated solely to providing electronic data discovery (EDD) services. In 1992, there were about five more. In 2000, there were about 40. Today, there are over 600 offerings, or purporting to offer, these services. They range in size from very large enterprises, to one or two people.

So say George Socha and Thomas Gelbmann, two St. Paul-based law technology consultants who have studied the wildfire expansion of the EDD industry for the past five years.

Their latest report, entitled the Socha-Gelbmann Electronic Discovery Survey Report, concludes that in calendar 2006, commercial EDD revenues were about $2 billion, up 51 percent from 2005.

Socha was approached in spring 2003 by a firm providing EDD, among other services, to study the status quo, potential growth, key issues and trends within the industry. That firm was looking to expand the scope of its EDD services, but wanted to be sure the market was strong.

To their surprise, no market research firm had ever examined the industry, and those it had discussed the idea with said that, because it was such a new area, they would need to spend time learning the industry first before commencing a study. That was too costly a proposition.

Socha, a former litigator who, at the time, was transitioning into a law tech consulting practice, asked Gelbmann to help him. Gelbmann, an independent law tech consultant, had worked as an IT professional in Minneapolis law firms for over 20 years, but he also had experience in market research within the legal field.

Although the two also have private consulting practices, they say the report is a massive annual undertaking. This year’s report is 334 pages in length, with hundreds of supporting tables and charts.

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Source: journalrecord.com

Iron Mountain CEO defends firm's security efforts

Reese chides the press, explains how companies can address changing storage regulations

Iron Mountain Inc. CEO Richard Reese, whose company manages more than 11 petabytes of data for corporate clients, says his biggest challenge is helping customers merge physical and data storage environments. In a recent interview with Computerworld at Iron Mountain's headquarters here, Reese addressed what he called inaccurate reports that the company has lost clients' tapes from its trucks and facilities, the effect of regulatory compliance on retention practices, and the progress of Iron Mountain's fledgling digital business unit.

Have reports that Iron Mountain loses tapes stored for customers been mostly accurate? We're so big, people in the press just assume we [lose tapes.] Most of [the reported incidents] that our name has been associated with we didn't do. Anytime you stop and open the door you have the possibility of an error. People can make mistakes, and they do. When you move so much, you never want to see a single event, and that's what I'm striving for, but we'll never get there.

Has Iron Mountain had to overcompensate to prevent future data losses and human error? You have to. We didn't sit back. As soon as we came to understand how our customers were beginning to look at these problems, we've been running hard ever since. A big part of what we've been trying to do is educate customers. Half the problem has been customers -- it's their legal departments [that] don't understand the [technology] processes [for archival and storage]. And the business people don't understand how [legal rules and responsibilities] have changed.

Have customers become more careful about how they transport tapes? In the information transport business, the world used to be a fairly-loosely-based chain of custody. [Companies] had multiple copies of backup tapes -- one off-site for disaster recovery and a couple on-site for quick recovery. If they lost one, it didn't matter, because they had the original data.

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Source: ComputerWorld.com

Data archives overview

Under normal circumstances, a backup is simply a copy of data that is kept aside to protect against data loss -- when a file is lost due to user error, or data is corrupted because of system problems, the affected data can be restored from a backup. An archive is different from a backup because the data may not be used for months, even years, but must be accessed quickly when needed. This is further complicated by data archive sizes that are growing at an annual rate, up to 90% or more. There is simply no time to search through burgeoning volumes of tape or optical media to locate important files. Traditional backup platforms are poorly suited for archival data storage, and users are relying on disk storage systems for a mix of performance and reliability. Files can be archived to any disk storage system, but content-addressed storage (CAS) technology has appeared to support archiving efforts [see the SearchStorage.com Tech Closeup on CAS here].

Understanding CAS
At the simplest level, CAS is a specialized disk storage system. Since archival data is not accessed frequently, high-performance disks are not essential. In fact, most CAS platforms employ ordinary SATA hard disks for their low cost per gigabyte, though SAS disks may be used when added performance is needed to accommodate many simultaneous users. However, CAS technology incorporates a unique feature set designed to optimize storage space and improve long-term data management.

CAS technology extends the use of metadata to define a file. While any file may include mundane date, time, name or creator metadata, CAS allows a tremendous amount of additional information to be stored along with the file. Extended metadata can be essential for indexing and searching old data well into the future. For example, a physician could use metadata to search through patient files and retrieve X-rays from patients with a specific physical condition. Metadata and index/search features are also critical for meeting e-discovery or other litigation requests. Encryption techniques are sometimes employed to secure sensitive or confidential data.

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Source: computerweekly.com

Helms Mulliss & Wicker Law Firm Opens ‘E-Discovery’ Facility

Helms Mulliss & Wicker PLLC (HMW) announces the opening of a new E-Discovery facility on August 27. The new 3700 square foot facility can house more than 40 professionals and is equipped with computer work stations specially configured to efficiently perform large-scale document reviews.

“This is a great step forward for an important practice initiative. We have developed a very high-end practice niche in this area,” said Bill Mayberry, a Member in the firm’s litigation practice. “Our group now has the expertise and resources to respond to client needs quickly and efficiently. We are not aware of any other law firm in this market that has a facility specifically designed to handle large document reviews, a critical component of litigation and corporate due diligence in this era of booming electronic communication and document storage. This boom and the recent changes in the Federal Rules of Civil Procedure have mandated that law firms and their clients proactively address these e-discovery issues, and this new facility puts our firm on the cutting edge in this field.”

The HMW E-Discovery Team works closely with client personnel, in-house counsel and IT professionals to understand the client’s business and their data storage systems. This ensures that electronic information is preserved and collected in accordance with legal requirements and industry standards. In addition, the team leverages a wide array of technologies to collect, review and produce electronic information for litigation in a cost-effective manner.

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Source: PR-GB.com

EVault enhances eDiscovery offering

EVault Inc., a Seagate Technology company and provider of data protection solutions, announced Tuesday enhancements to the EVault Insight online review service that will better serve the needs of corporations and law firms, who manage electronic discovery (eDiscovery) for regulatory compliance, retention and litigation, EVault said.

EVault Insight is a hosted, online eDiscovery solution comprised of the technology and professional services components to maximize the speed of a legal review and support the review team, EVault of Emeryville, California said. The enhancements to EVault Insight include an improved user interface and a simple-to-use redaction tool, using a drag-and-drop mouse feature, the company said. TIFF (Tagged Image File Format) image-based review capabilities have been added to enable a review team to quickly complete first-level reviews of large document collections, it said. EVault Insight is also capable of completing productions quickly, as TIFFs of the entire collection are created during processing, at no additional cost to the customer, EVault added.

EVault, a wholly owned subsidiary of Seagate Technology LLC, is a comprehensive data protection solutions provider to over 9,000 small to large enterprise customers globally. EVault 's software and outsourced services for backup, recovery, archiving, business continuity and eDiscovery have allowed customers to conform to industry-specific compliance and security regulations, the company said. EVault's DeltaPro, patented Quick File Scanning, and patent-pending Adaptive Compression technologies, have made it easy for users to secure, protect and recover critical data across a range of operating systems and applications, to deliver high performing online backup and recovery, it said.

EVault allows its customers to choose between licensing and managing software in-house, or licensing software and outsourcing the data protection management to EVault, or to subscribing to a Software as a Service (SaaS) offering delivered by EVault, the company said.

The areas of expense in eDiscovery are in the processing and the timely review of collections, EVault said. By working closely with customers, EVault is constantly looking for ways to cost-effectively improve the workflow of a review, whether it's behind the scenes or at the user-level, the company said.

EVault has also enhanced its EVault Insight to include complete Unicode support for foreign languages, EVault said. As organizations expand their global reach, dealing with text and symbols of various languages and the ability to consistently manipulate these characters for accurate data retrieval during the eDiscovery process has been a challenge, the company said.

With full Unicode support for foreign languages, including Mandarin Chinese, Japanese and Cyrillic languages, EVault Insight can achieve greater than 99 percent accuracy, without native speaker supervision, EVault said. By automating the process, EVault eliminates the need for human intervention, reducing both cost and complexity of handling character-based language documents, the company said.

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Source: Technology Review Online

WebEx Links iPhone To Outlook, Remote PCs

An upgrade to WebEx PCNow 3.0 remote access software will let iPhone users check their Microsoft Outlook e-mail and view the files stored on their remote Windows computers.

The Apple iPhone can now access files and e-mail on remote PCs, and soon, on remote Macs.

On Wednesday, online collaboration company WebEx plans to introduce an updated version of its WebEx PCNow 3.0 remote access software that will enable iPhone users to check their Microsoft Outlook e-mail and view the files stored on their remote Windows computers.

Despite the addition of iPhone compatibility, a company spokesperson said the version number would remain unchanged at 3.0.

"This latest version of WebEx PCNow means users have the ability to effectively access their desktop from anywhere, at any time, on their iPhone," said Jack Chawla, WebEx's senior director of product management, in a statement. "We're delighted to be able to utilize the innovations in iPhone to enable seamless access to desktop files and tools 24/7."

PCNow enables PC-to-PC remote access and phone-to-PC remote access. Users of the software can search their desktop files, Outlook contacts, calendar entries, e-mail messages, and other types of documents through a Web browser.

WebEx's approach differs somewhat from TransMedia's Glide service, which lets users access desktop files on the iPhone via synchronized copies stored on TransMedia's servers.

PCNow can easily share files found though remote searches. It also lets users use SkypeOut on the remote PC to make VoIP calls, even if the local device used for remote access doesn't support the Skype mobile client.

The software supports a range of interactions with Microsoft Outlook. Users can read, reply, forward, or delete e-mail messages and any changes will be reflected on the remote computer running Outlook.

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Source: Informationweek
By: Thomas Claburn

How the IT department can prep for the courtroom

There has been a steady increase in corporate litigation over the past decade, and those legal proceedings are having an unforeseen impact on IT managers. This trend has been accelerated by the recent changes in the Federal Rules of Civil Procedure (FRCP).

The mountains of electronic data generated within today’s enterprises are colliding with ever more aggressive legal discovery practices, creating formidable IT challenges during litigation - how to best provide secure and auditable access to sensitive corporate data that must otherwise remain inaccessible to both outsiders and most insiders. More importantly, how can control be maintained without exposing more corporate data than necessary?

These decisions are best shared between the network or IT manager, corporate counsel and a litigation support specialist, who will help identify and specify the appropriate data. But it’s the IT manager’s job to ensure that data is treated gingerly; enterprises don’t spend millions on network security only to offer up the corporate jewels at the first lawsuit.

At the same time, there are legal requirements for both inside and outside counsel to have unfettered access to the relevant corporate data at a level of detail that corporations never allow outsiders under different circumstances. To balance these concerns, corporations are increasingly bringing this process of identifying what is relevant and appropriate for disclosure in-house. They will still likely use outside law firms and possibly contract attorneys to make the determination of relevance, but today’s litigation-burdened corporation is taking control of the data and, in the process, reducing the cost of discovery.

The legal strategies aside, there are two fundamental IT strategies that lie at opposite ends of the spectrum for providing this "access to the inaccessible." The first is to outsource the data and security to a service provider whose business is handling the litigation discovery process.

These companies have the facilities, policies and tools necessary to secure the data while providing auditable access for the attorneys. In fact, some can even provide multi-terabyte "mobile data centers" that can be wheeled in to quickly host a whole legal department.

At the other end of the spectrum is a physical security approach, with the company literally walling off – physically – a copy of the data behind a lock and key. This is typically done in a conference or training room facility inside the corporation. This mini-network is physically disconnected from the web and the corporate network, and all of the attorneys are brought "in house" for data access throughout the duration of the review process.

Both of these approaches work well (either outsourcing it to someone else’s plate or through avoiding access concerns by eliminating the network connection) and can dramatically simplify the IT problem. Unfortunately, each also has obvious inefficiencies and added costs. As a simple example, the physical walling off becomes difficult when the data and facilities are in Los Angeles and the attorneys are in New York.

The real challenge lies in finding a middle ground: isolating the data internally on the network and allowing controlled and auditable remote access for review attorneys. This approach typically necessitates the creation of the networking equivalent of a demilitarized zone (DMZ) for all data processing that is neither "inside" the corporate data network nor "outside" the corporate firewall. This DMZ needs to be protected from both outside and inside access, since it will contain a wealth of sensitive data that typical employees should not be able to access.

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Source: SC Magazine
By: Greg Lawn

Erased E-Mails Return as Sanction in Harassment Case

Evidence tampering will hamper defense in sexual harassment trial against Connecticut community college instructor

In early February 2004, an attractive, 31-year-old woman transferred into Ronald Masi's course in criminal justice management at Norwalk Community College. She hoped he would teach her how to stop bad guys.

But within days, according to a sexual harassment lawsuit filed by the woman, the teacher, other criminal justice department faculty members and college officials acted like bad guys themselves.

The woman claims Masi groped her and asked her to have sex in exchange for an "easy A." And when she complained to authorities, her lawyer contends, someone at the college erased computer files to remove evidence of e-mails that discussed Masi and a previous harassment complaint.

A federal judge recently chastised Norwalk Community College officials for "evidence tampering," and issued a sanction that will hamper the college's defense in the lawsuit filed by the woman, who is identified in court records as Jane Doe.

The case is the second one in the state in recent months to focus on vanished computer evidence. Greenwich criminal defense attorney Philip Russell has been charged with destroying a computer that contained child pornography at Christ Church in Greenwich. Russell is accused of obstructing an FBI investigation into the church's former music director.

In the Norwalk Community College case, no computer was destroyed. But an expert hired by Doe's lawyer, Jeffrey S. Bagnell of Westport, said hard drives were "scrubbed." During testimony, a college information technology technician said that wasn't the case, and that some of the missing data might have stemmed from a simple case of computer failure.

"That's the best all-purpose excuse you get from any information technology tech, kind of like 'the dog ate my homework' in the computer world," said Bagnell. "The judge didn't buy that at all."

Community college officials said last week they did not intentionally destroy evidence. In a prepared statement, Mary Ann Cox, assistant chancellor for Connecticut's community college system, said officials were following the usual policy of deleting computer files upon the departure of an employee -- in this case, Masi.

"Norwalk Community College was following its usual procedures when an employee leaves and their computer is transferred from one employee to the next, to prevent unauthorized access to our systems," said Cox. "The intent was to insure the security of student and college information, but we regret that the action led to the elimination of records that should have been retained."

'LOT OF TROUBLE'

According to the lawsuit, Masi invited Jane Doe back to his cubicle after that first class to give her curriculum materials. On the way, Masi joked with the woman, stating, "I bet you're 18, huh?"

The woman claims that Masi offered answers to test questions if she agreed to have sex with him at a motel from time to time. According to the lawsuit, he allegedly kissed one of her breasts, touched her between the legs and then warned the woman to be "very quiet" about his behavior because he "might get in a lot of trouble."

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Source law.com
By: Thomas B. Scheffey

De-Duplication Rumors Highlight Controversy

Scuttlebutt on various de-dupe partnerships points up arguments over approaches

A spate of industry chatter surrounding data de-duplication is reflecting a growing controversy over the best methods for deploying the technology.

The importance of data de-duplication is growing, exemplified by the success of Data Domain's recent IPO and fresh funding for Diligent Technologies. At the same time, storage professionals are being exposed to a cacophony of sometimes conflicting information about suppliers and their methods.

The rumor mill's on full tilt, for instance, regarding the potential for big vendors like EMC or Sun to add to or supercede their de-duplication partners. The latest whispers say EMC may announce a close partnership with Data Domain, to add to or replace de-duplication from its Avamar acquisition. (For the record, EMC and Data Domain refuse to comment on rumor or speculation.)


One thing to emerge from the swirling gossip is that suppliers are engaged in a fierce battle for mindshare that's liable to confuse would-be customers. And at the heart of the debate is the argument that some methods for de-duplicating data are proving to be better and more scaleable than others.

How closely should users listen to the rumblings for and against? Should the latest religious wars over data de-duplication be factored into the list of things prospective de-dupe buyers need to consider up front?

To consider these questions, we've compiled a rundown of the latest arguments:
Appliances are best. Some argue that products deploying agents on local servers or working within the backup utility itself are less efficient than products based on appliances.

At least one customer shares a different experience. Jason Paige, information systems manager at financial firm Integral Capital Partners, says he chose Avamar prior to the EMC acquisition because the use of agent software on multiple servers reduced the bandwidth required to back up remote sites. What's more, far from slowing up the backup process, the de-duplication reduced a full backup from 8 hours to 3 and enabled him to incorporate a much more detailed Exchange backup, while supporting nearly six times as many computers.

Paige concedes, though, that customers with larger installations than his might opt for a back-end "post processing" de-dupe solution.

In-line is better than post-processing. Voices are crying that wares from Data Domain and Diligent, which use appliances to de-duplicate data "in line" before it is sent to backup, are more efficient than products that use "post processing" methods, such as those deployed by FalconStor and Sepaton, to de-duplicate data once it is backed up.

"As the market matures, we are beginning to see battle lines established between where... data de-duplication is performed," maintains George Crump of the Storage Switzerland consultancy in a recent blog. In his view, only the use of in-line appliances guarantees that a server won't be overwhelmed with the processing required to de-duplicate data before it goes to backup. Also, if de-duplication is done after the backup, you need more storage than you already have, and there's a chance your de-duplication processing will interfere with the speed of RTO in case there's a real outage.

There are others, though, who claim in-line devices interfere with performance on the network, even though they may use less disk than post processing solutions.

At least one analyst, who asked not to be named, isn't taking sides. "Both in-line and post processing approaches have advantages and disadvantages. A well done post process de-dupe is just as effective as an ingress de-dupe. A well done ingress de-dupe can be just as fast as a post process de-dupe. Remember: One of the basic pillars in math and programming is that there are multiple ways to achieve the solution. The creators of each solution think their baby is the best and only way to get it done."

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Source ByteandSwitch
By: Mary Jander

TorrentSpy blocks US users

P2P site responds to Federal court order

Dutch file-sharing service TorrentSpy has started blocking US-based IP addresses from using its search engines.

TorrentSpy's lawyer, Ira Rothken, said that the move is a direct response to a Federal court order which required the search firm to start logging users' IP addresses and activity.
But the company has said that it would rather block US users completely than breach its privacy policy.

TorrentSpy was ordered to track its users after the Motion Picture Association of America (MPAA) took the firm to court, accusing it of alleged copyright infringement by facilitating illegal downloads of copyrighted material.

The MPAA claimed that TorrentSpy was helping users to trade pirated material via file-sharing networks as its privacy policy states that it will not gather any personal data without permission.

The US judge presiding said that TorrentSpy could mask the IP addresses of users at the time of use, and ordered the company to start saving the tracking information and provide the data to the MPAA.

The Electronic Frontier Foundation (EFF), a group of digital privacy advocates, has slammed the judge's decision.

"This unprecedented ruling has implications well beyond the file-sharing context," said EFF staff attorney Corynne McSherry.

"Giving litigants the power to rewrite their opponents' privacy policies poses a risk to all internet users."

The EFF reckons that the judge incorrectly reasoned that, because the IP addresses exist in the Ram of TorrentSpy's web servers, they are " electronically stored information" that must be collected and turned over to the studios under the rules of Federal discovery.

"In the analogue world, a court would never think to force a company to record telephone calls, transcribe employee conversations, or log other ephemeral information," said EFF senior staff attorney Fred von Lohmann.

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Source: VNUnet
By: Ian Williams

Top 5 Strategic Email Compliance Mistakes

If you review many of the recent business scandals in the news this last year, it is clear that something has changed regarding email and business risks. I’m not talking about spam, viruses, or even phishing. Those are annoyances, but they don’t really have the destructive power that can damage businesses as large as Enron, Arthur Andersen and Morgan Stanley. Companies that do not have a good handle on what is in their email system, what is being sent through their email, or how to retrieve historical emails when necessary, have had major financial losses.

The daily headlines show the major force that email has become. Several factors are driving email compliance: The rise of regulations in the last several years; the growth of email volumes; and the lack of email discipline and enforceable polices.

Many companies are making major strategic errors regarding email compliance because they are operating on an outdated model. Here are the Top 5 mistakes that can BREAK a company’s compliance effort:

Mistake # 1: Business Goal
Compliance should not be the business goal of a company. Business goals should be to become a better business; to reduce business risks, to improve business productivity; to improve customer service, and to ensure the company image and reputation is not damaged, etc..

The mistake many companies make is to take the regulations literally and as complete business guidelines. They are not; they are government minimum standards. Do you want to operate your company solely according government minimum standards?

Action: Make sure your business includes goals of achieving high ethical standards, solid operations and processes and an institutionalization of a culture of compliance from the top down. Compliance is an ongoing process that should be the by-product of these goals. If these are your business goals, then meeting compliance mandates will be easy.

Mistake # 2: Retention: Thinking that after the retention period ends, documents must be destroyed

Regulations mandate a minimum period to keep your business documents, not a maximum period. Regulations do not compel a business to destroy their documents. Why should you keep business records longer than the retention period?

Business documents are critical assets of the business, they hold corporate knowledge, customer histories, long term trends, and other information that can be used as a guide to the business long after an email retention period is over.

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Source: s-ox.com

Index Engines and BlueArc Partner to Drive eDiscovery Performance, Efficiency and Scalability

BlueArc Joins the Index Engines Litigation Ready™ Partner Program to Deliver Fast and Economical Data Search and Legal Discovery

Index Engines, a leader in enterprise discovery solutions, today announced that it has partnered with BlueArc® Corporation, a leader in scalable, high-performance network storage to develop an optimized version of the Index Engines LAN engine to support BlueArc’s high performance Titan 2000 unified network storage systems for fast, economical search and discovery of unstructured online data. The new Index Engines/BlueArc solution was developed as part of BlueArc’s participation in the Index Engines Litigation Ready™ Partner Program. The resulting product reduces overall eDiscovery costs and turnaround time while giving companies the dynamic interaction with data that enables them to perform on-demand decision making for legal and regulatory compliance.

“Corporate data stores can have many terabytes of key corporate records stored as emails, files and other forms of unstructured data. Many companies are facing extraordinary costs as they attempt to search these files for data in support of litigation,” said Neil Colstad, vice president of business development, Index Engines. “Compounding the high cost of compliance and electronic discovery are the legal and administrative risks faced by enterprise data managers and electronic discovery processors when responsive documents are not produced when required. By combining the Index Engines LAN engine with BlueArc’s Titan 2000 unified network storage systems, we can significantly reduce this risk and lower cost all while speeding the discovery process.”

“BlueArc has been adopted as the centralized storage solution powering our partner electronic discovery firms storage needs, and enabling a dynamic scalable storage environment while increasing the number of files processed per hour,” said Steve Daheb, senior vice president of marketing and business development, BlueArc. “Today’s corporate data is distributed throughout the enterprise in multiple formats and locations – from servers, data centers, desktops and laptops to archives and offline tapes. The Index Engines solution, when paired with our high-performance Titan 2000 unified network storage systems offers customers high speed access to their distributed data so they can swiftly and more cost-effectively meet their compliance and discovery requirements.”

The combined solution from Index Engines and BlueArc provides a cost effective and comprehensive electronic discovery solution. This plug-and-play appliance transparently integrates into existing networks and BlueArc storage infrastructures, to perform content and metadata indexing on electronic records. Key features of the new solution include:

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Source: businesswire.com

ILTA 2007: No Dog and Pony Show

The International Legal Technology Association annual conference was held in Orlando, Fla. last week, promoting a theme of collaboration and communication to solve IT problems. The collaboration started with a keynote address entitled "Apollo 13: A Successful Failure."
Captain James Lovell Jr., NASA astronaut on the Gemini 7, Apollo 11 and Apollo 13 recounted the story of how he and his crew secured the Apollo 13 lunar module as a lifeboat to safely return to Earth following an explosion in the oxygen system. The safe return was possible due to the courage and collaboration of the crew and their acute attention to detail.

No doubt, we all aspire to the qualities in the Apollo 13 crew that brought them home safely. At base, collaboration and effective communication go a long way -- perhaps to the moon and back -- to resolve IT problems in the legal profession.

KICK OFF

ILTA kicked off with more than 2,300 attendees, 190 educational sessions and well over 150 registered vendors. True to the show's theme, I got out on the show room flow and collaborated with vendors and viewed their wares.

It's hard to miss LexisNexis at shows like ILTA. If you did, it would be like going to the West Coast and missing the Pacific. LexisNexis has come out with the next iteration of CaseMap, version 7.5. And since they enhanced their reporting tools, I can say that it's literally "looking good." CaseMap can now access all reports in one click and generate reports by issue, e.g., trespass. By-issue reports display all records related to the issue. You can use the default issues supplied by CaseMap or create your own.

Prior to ILTA, LexisNexis launched a litigation support tool: Case Assessment and Analysis. The new tool comprises a set of software products, online services and consultants that help attorneys identify and act on strategic factors that impact their cases. The tools can be used individually or accessed online in LexisNexis' Total Litigator platform along with lexis.com, TimeMap and CourtLink. In the Total Litigator platform, attorneys can share and move case data between tools -- including crucial case analysis tools -- from one location, a significant help to litigation teams seeking a more strategic approach to case planning.

And speaking about strategic approaches, I saw that Recommind is applying its search technology to e-discovery with Axcelerate eDiscovery. Axcelerate aims to live up to its name by accelerating litigation review and analysis by assessing responsiveness, privilege and issue relation prior to the beginnng of the review process to reduce the amount of time needed to organize and conduct document review and analysis. Axcelerate features an automated tool to conduct a first-pass review of an entire document collection (First Pass Review) and an easy mechanism to code documents (One-Click).

Search technology is not unique to search engines like Recommind. Everyone is coming up with an answer to search-managed and unmanaged content by acquisition, partnership or development. For example, Interwoven, Inc. introduced its own Universal Search, Professional Services Edition. Universal Search aims to locate content throughout the firm including content in document and records management systems, e-mail archives and time-and-billing systems.

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Source: law.com

High-Tech Solutions Suit Law Firms

E-mail upgrades, elaborate databases make service more efficient, mobile

Spurred by both federal regulators and the marketplace, law firms in New Jersey and elsewhere are ramping up their technology. Their goals include the ability to capture specific information, and then sift through it and send it to the appropriate parties as soon as possible. From beefing up e-mail systems to tapping into courtroom databases, law firms have embraced high technology.

“Since e-mail is one of the primary means of communication between our clients and our attorneys, we recently made a significant investment in upgrading our e-mail system to the latest version of Microsoft Exchange,” says Richard Abramson, chair of the technology committee at Cole, Schotz, Meisel, Forman & Leonard PA in Hackensack. “We are also electronically filing pleadings with the courts, and we are moving toward a paperless invoicing system so clients will have a more comprehensive understanding of their invoices on a real-time basis."

The ability to conduct business anyplace is also increasingly important to law firms. “Recently, when I was in Chicago on business, I was still able to access the contents of my office computer through a secure remote connection, called Citrix,” says Jonathan Wolfe, a partner with Skoloff & Wolfe PC in Livingston. “It’s an expensive endeavor, but it’s well worth the cost. In today’s environment, clients don’t care whether their attorney is in the office or on the road—they expect fast, accurate service.”

Efficiency and client service were also cited by Gail Ruopp, executive director of Cherry Hill’s Flaster/Greenberg. She says the law firm has a full-time software applications trainer on staff to help employees get the most out of their computer programs.

“The average law firm uses about 10 percent of the available features of Microsoft Office,” says Ruopp, referring to the package of writing, mathematical spreadsheet, e-mail and other programs that sit on many computers. “We’ve gone deeper and use Office programs like Outlook [a contact management package] that offer powerful scheduling, notification and other capabilities.”

According to Ruopp, Outlook’s calendar functions let attorneys schedule their appointments and set up notifications that alert them to upcoming meetings and other events.

She says managers can also access their staff’s calendars, making it simple to track down a particular attorney on a given day or time.

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Source: njbiz.com

Mimosa Systems Announces eDiscovery Expert Series for Microsoft Exchange

Mimosa Systems(TM), a leader in Live Content Archiving solutions, today announced a four-part webinar series hosted by industry experts and dedicated to the subject of email archiving and eDiscovery for Microsoft(R) Exchange Server. This series addresses the issues many IT and legal professionals have as they struggle with effectively storing and managing the explosion of user-driven information in a way that complies with the ever-increasing demands of legal discovery. Attendees will gain insight to help them implement an effective email archiving and eDiscovery strategy that will reduce risk, optimize performance, and lower costs.

According to Forrester Research, eDiscovery technology spending will grow from $1.4 billion in 2006 to more than $4.8 billion in 2011 as enterprises prepare for electronic discovery. Driving technology adoption in this area are amendments to the Federal Rules of Civil Procedure (FRCP) and broader retention management strategies which call for a more proactive approach to meet compliance standards. "In simpler days, the focus with email was on keeping backups," said Bill Savarino, a partner in the Washington, DC, law firm of Cohen Mohr LLP, where he specializes in email retention law, government contracts law, and security clearance issues.

"That's not the case any longer. As emphasized by the recent changes to the Federal Rules of Civil Procedure, organizations today need retention, retrieval and production capability for all electronically stored information, not just e-mail, including point-in-time records of email, folders, calendars, contacts, notes, and tasks - with a complete audit trail of edits. The law has finally caught up to the high-tech era. Organizations have no choice but to keep pace. Ignorance is no longer an excuse."

Mimosa Systems is proud to sponsor the eDiscovery Expert Series for Microsoft Exchange. To learn more about the series and to register, visit Mimosa at: www.mimosasystems.com/webinarseries. eDiscovery Expert Series for Microsoft Exchange

This webinar series is intended for IT professionals responsible for managing Microsoft Exchange Server, as well as legal professionals concerned about litigation readiness and regulatory compliance.

-- Part I: Email Archiving 101: It's Not Just About Email Anymore

-- Part II: Federal Rules of Civil Procedure 101: Ignorance of the Law Is No Excuse

-- Part III: Email Archiving 101--Customer Case Study

-- Part IV: Best Practices for Email Retention and eDiscovery

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Source: TMCnet

High-Tech Solutions Suit Law Firms

E-mail upgrades, elaborate databases make service more efficient, mobile

Spurred by both federal regulators and the marketplace, law firms in New Jersey and elsewhere are ramping up their technology. Their goals include the ability to capture specific information, and then sift through it and send it to the appropriate parties as soon as possible. From beefing up e-mail systems to tapping into courtroom databases, law firms have embraced high technology.

“Since e-mail is one of the primary means of communication between our clients and our attorneys, we recently made a significant investment in upgrading our e-mail system to the latest version of Microsoft Exchange,” says Richard Abramson, chair of the technology committee at Cole, Schotz, Meisel, Forman & Leonard PA in Hackensack. “We are also electronically filing pleadings with the courts, and we are moving toward a paperless invoicing system so clients will have a more comprehensive understanding of their invoices on a real-time basis."

The ability to conduct business anyplace is also increasingly important to law firms.

“Recently, when I was in Chicago on business, I was still able to access the contents of my office computer through a secure remote connection, called Citrix,” says Jonathan Wolfe, a partner with Skoloff & Wolfe PC in Livingston. “It’s an expensive endeavor, but it’s well worth the cost.

In today’s environment, clients don’t care whether their attorney is in the office or on the road—they expect fast, accurate service.”

Efficiency and client service were also cited by Gail Ruopp, executive director of Cherry Hill’s Flaster/Greenberg. She says the law firm has a full-time software applications trainer on staff to help employees get the most out of their computer programs.

“The average law firm uses about 10 percent of the available features of Microsoft Office,” says Ruopp, referring to the package of writing, mathematical spreadsheet, e-mail and other programs that sit on many computers. “We’ve gone deeper and use Office programs like Outlook [a contact management package] that offer powerful scheduling, notification and other capabilities.”

According to Ruopp, Outlook’s calendar functions let attorneys schedule their appointments and set up notifications that alert them to upcoming meetings and other events.

She says managers can also access their staff’s calendars, making it simple to track down a particular attorney on a given day or time.

“At this time we’re also looking into e-discovery software to more effectively manage masses of electronic documents,” adds Ruopp.

Electronic discovery, popularly known as e-discovery, has been a hot topic since December 2006, when tough new federal legal regulations were implemented, forcing companies to preserve their e-mail and other electronic data, and making them accessible to parties in certain kinds of lawsuits. For the lawyers representing them, e-discovery can mean sifting through gigabytes of data, trying to determine what’s relevant to a case and what is not.

“At one time, the discovery process could involve looking at thousands of pages of documents,” says Netz Sacro, the litigation technology manager at McElroy, Deutsch, Mulvaney & Carpenter LLP in Morristown. “But packages like Concordance [a database management software product created by LexisNexis] reduces the time and enhances accuracy.”

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Source: NJ Biz
By: Martin C. Daks

Search Engine Finds Memories From Way Back

A recent decision by the U.S. Court of Appeals for the Eastern District of Pennsylvania, Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, Civil Action No. 05-3524, tackles, in part, the inherently temporary nature of cache files.

Healthcare Advocates Inc. sued a client of the law firm Harding, Early, Follmer & Frailey for trademark infringement and misappropriation of trade secrets. Shortly after the complaint was served and before formal discovery had begun, employees of the Harding firm accessed, viewed and printed images of older versions of Healthcare's Web site that were stored on servers operated by the Internet Archive.

The Internet Archive is a not-for-profit group that attempts to search, record and store much of the publicly available information on the Internet. It employs a tool called the Wayback Machine that allows viewing of pages that the archive's robotic search tools automatically record and archive at various time intervals. [FOOTNOTE 1] The images are like snapshots of what a particular site looked like on the date it was recorded by the archive.

Not all Web sites are recorded by the archive. A site owner can "delist" a site by complying with a recognized standard for robot exclusion, which is a set of universal instructions that standard robotic search tools will follow and that are contained in a so-called robots.txt file that can be made part of the site's code. The archive's robots that read a "do not copy" instruction in a robots.txt file will (a) stop recording the site contents so long as the file remains, and (b) cause the archive to remove public access to the pages that have already been copied and recorded.

The Internet Archive can be a useful tool in litigation, since it may provide a record of past public statements made by or on behalf of a Web site's owner. It is with this in mind that the Harding firm used the Wayback Machine shortly after its client was served with Healthcare's complaint to review archived screenshots of Healthcare's Web site. Employees of the firm printed copies of each archived screenshot that they viewed.

Unbeknownst to the Harding firm, Healthcare Advocates had placed a robots.txt file on its site just days before Harding's employees accessed archived copies of the site via the Wayback Machine. Under normal operating conditions, the archive should have checked Healthcare's site, detected the robots.txt file, and denied Harding access to the archived Healthcare pages.

However, unbeknownst to the Harding firm's employees, the Internet Archive servers were not operating properly on the dates they attempted to access the stored images of Healthcare's site, and they were able to view the archived pages despite the robots.txt instructions. The Harding firm used the old Web images in its defense of its client, and the lawsuit brought by Healthcare Advocates against its client was eventually dismissed.

The case was far from over for the Harding firm, however. Healthcare Advocates brought a second lawsuit, this one against the law firm, for copyright infringement as well as violations of the Digital Millennium Copyright Act, the Computer Fraud and Abuse Act, and common law torts of conversion and trespass to chattels. The focus of this second lawsuit was on the Harding firm's actions in accessing, viewing and copying the Healthcare content stored on the Internet Archive servers.

While the substantive claims raise moderately interesting issues of copyright law, the focus of this column is Healthcare's request that the court sanction the Harding firm for its failure to preserve the cache files of the computers that were used to access Healthcare's archived site content via the archive.

Cache files are created by Internet browsers to help speed up the process of viewing content from the Internet. Most of us have clicked back and forth between two pages of Internet content; perhaps, for example, from a list of novels responsive to our search for "legal thrillers," to a specific novel that we want to examine in more detail, then back to the list. When we first visit the page with the list of novels, our browser may store an image of that list page in our computer's cache memory. When we return to the list page after viewing the detail page about the novel that catches our interest, our computer probably pulls the image of the list of novels from its cache memory instead of going back to the Internet to download a new copy from the originating site. It is generally quicker and less of a burden on computer resources to retrieve the image from cache memory than it is to search and retrieve it again from the Internet.
Cache files are by their very nature temporary. Most browsers have tools that allow users to allocate more or less system memory to cache files, but eventually whatever amount of memory is allocated to cache files is filled, and older information is deleted to make room for the newer.

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Source: law.com

Storage 101: Evaluating the Benefits among Backup, Tiered Storage & Archiving

What is the true value in archiving?

Without a comprehensive business case, IT investments are becoming increasingly more difficult to justify to decision makers, especially decision makers that do not understand the technology involved. So the looming question is how do you justify an archive plan? Harvard Business School suggests looking at three metrics:

Cost Savings

Risk Reduction

Process Improvement

Simply put, how will the IT investment in archiving save money, improve the business process, and reduce risk. In general, if your IT process can satisfy at least two of these questions, then it may be worth funding. Today there are, in general, three data protection business processes competing for IT funding: backup, storage tiering, and archive. This article will compare these three processes in terms of cost savings, process improvement and risk reduction.

How will archiving save money?

Backup: There is little or nothing the backup process will do to save the company money, unless it is faced with a disaster. Event then, the process is likely to be more expensive than the original budget. Backup is like an insurance policy. Companies pay for it, because they know they need to have their data protected from all kinds of data loss issues, ranging from malicious intent to natural disaster and hardware failure. The costs associated with backup include capital appropriation of hardware and software and also include the human intervention process of managing the backup procedure which would include a time component.

Tiered Storage: Storage tiering may temporarily save a company money by delaying capital expenditures on new storage platforms by utilizing disk storage more efficiently and migrating files to more cost-effective, higher-density disk or archive stores as the files age, however, there is still a management issue to be addressed. In addition, as disk storage continues to decrease, an analysis will have to be done to verify that it is in fact cheaper to migrate data rather than continue to throw disk storage at the problem. In addition, for each new disk system used in the solution, a backup strategy must be considered, which will add additional cost to the solution over time, minimizing or eliminating the money savings metric in the analysis.

Archive: Archive also delays capital expenditures on new storage platforms by providing a final resting place for static and aging data which may or may not be part of a tired storage approach. Selection of an archive media type will play an important roll in the cost effective nature of the solution, however, utilization of a removable media type will go a long way in reducing storage costs overall and provide a built-in kind of data protection not available with hard disk. Studies are now starting to come out that show the cost-efficient nature of removable storage both from an energy perspective as well as from a cooling perspective, thus further increasing the value of a good archive strategy. If the archive solution can be combined with long-term data preservation and a disaster recovery component, such as data replication or removable media, then the solution eliminates the backup process thus providing even further value to the enterprise.

How will archiving improve business processes?

Backup: Backups do not improve the business process. In fact it only serves to impede the business process during scheduled backup times. This is why most scheduled backups are done during off-peak hours.

Tiered Storage: Tiered storage and storage resource management, which should go hand-in-hand are the keys to providing the automation of capacity management thus reducing IT labor costs for data management. In order for this kind of tiering to work, the migration engine must either leave a file tag behind or the application needs to be aware of the data migration process and change the file pointers to the new location so that the user’s process does not change when the data is moved. If this is done correctly, then the business process can become more efficient in that data will be migrated automatically without user intervention through storage tiers and eventually stored in its final location and/or deleted based on policy management. Effective storage tiering coupled with a good storage resource management model can provide for significant manpower costs savings.

Archive: An application-aware archive can improve worker productivity by providing a central location for all aged data by giving the user one location to look for their data. This kind of central archive serves many process improvements. It provides a single tree for data grooming. Data in the tree can be sliced and diced based on a number of file system metadata criteria, and easily classified if it is in a single file system. It also provides a manageable historical analysis and reporting structure, making it easier to put a value on the data so that it can be mined for future business use.

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Source: Computer Technology Review
By: Jim Wheeler

IT Security: First forensic probe of remote computer using mobile phone

Scores of high-tech crime police witnessed a 'world first' when forensic computing experts Evidence Talks carried out an examination of a remote computer using a mobile phone.

Managing director Andrew Sheldon successfully took a forensic copy of the hard drive, performed keyword searches and forensically browsed the computer - 70 miles away - in front of delegates at the UK National Police Improvement Agency's annual e-crime conference.

This technological breakthrough has huge implications for the security services in their battle to protect the public from terrorism, organised crime and paedophiles.

For example, computers seized by foreign police forces following the Glasgow car bomb attack could have been examined within minutes by British police stationed in London. Mr Sheldon was demonstrating his company's patented Remote Forensics solution to an audience of intelligence experts, including senior security advisors and forensics analysts. A unique combination of hardware and software architecture, Remote Forensics allows enforcement agencies, businesses and organisations with multiple geographically-separated sites to react instantly in the event of a 'digital incident'.

Any digital media - hard drives, DVDs, memory sticks and the like - can be 'imaged' (copied) and forensically examined in real-time from anywhere in the world where there is a network connection, including wireless or 3G mobile phone.

An expert with a laptop computer or mobile phone sat on a beach in Australia could carry out an investigation in New York without leaving his sunlounger. Remote Forensics features FIMS (Forensic Incident Management Service), a sophisticated and secure web-based application which handles the investigation from start to finish.

No data travels over the internet, so the process is totally secure at all times. And the system works at the speed of the machine being analysed. Mr Sheldon commented: "Enforcement agency experts could immediately see the benefits of using joined-up intelligence gathering using Remote Forensics. It gives the ability to respond immediately to intelligence discovered on systems during a multi-point raid.

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Source: Public Technology

Look beyond legal discovery when designing e-mail archives, urge experts

While protecting yourself, you can reap business benefits

Corporations are racing against time to create archives that allow retrieval of e-mails in response to increasingly common civil suit discovery motions.

Losing that race can be costly, as Morgan Stanley learned when it lost $1.44 billion -- most of that as penalties assessed by an annoyed judge -- in the Sunbeam case, after it failed to produce e-mails required by the court.

E-mail is becoming a standard part of civil discovery. Opposing counsel is well aware that e-mail archives are rich veins to mine, and last year unstructured data was specifically added to the discovery list in Rule 26 of the U.S. Federal Rules of Civil Procedure. And the threat isn't confined to Global 2,000 corporations. Any organization can face a civil suit, and any civil suit can include the requirement to produce relevant e-mail. CIOs in organizations that are as yet unaware of this legal trend should alert their CEOs to the danger.

For most enterprises today, the challenge is to find the requested e-mail at all. In most organizations the archive is little more than a pile of forgotten tapes originally intended as backup in case of a computer crash. How many IT organizations today can even find the tapes from two years ago? In the Sunbeam case, Morgan Stanley annoyed the court by dribbling in tapes as it found them, sometimes in closets and other forgotten corners in various offices nationwide.

However, say the experts at Wikibon.org, even as enterprises scramble to find those lost tapes and create a real archive that will allow them to produce sets of historic e-mails if required, they should think beyond this purely defensive requirement to active use of the archived data.
E-mail contains valuable data

"Most unstructured data has very little metadata associated with it," said Wikibon.org co-founder David Floyer at a public Peer Incite meeting held by the organization last week. "E-mail is an exception. E-mail headers contain a great deal of useful information about who is talking to whom and how organizations really work.

"There is a huge requirement for automated data classification for semantic search," he said. "These are essential for organizations to protect themselves."

For example, he says, the human resources department may need to search the archive for early evidence of emotional or sexual harassment, sales may want to search for indications of contract abuse, and purchasing can search for evidence of employee theft. Executives then can intervene early to avoid problems before they reach the stage of civil or criminal action.

Martin Tuip, manager of business development at e-mail archiving house Mimosa Systems and a meeting participant, suggested that analysis could go far beyond the initial concern over legal issues to supply insight into how the organization actually works, who influences whom and what the unofficial lines of communications are.

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Source Computer World
By: Bert Latamore

iPhones may store records of illegal activites, but experts may have a hard time finding them

Privacy is a big concern these days, particularly when it comes to computers and the Internet. I think people are fairly aware of things like cookies and data collection, but far less attention is paid to privacy issues involving other electronic devices. Cell phones and iPods are heavily-used items, and while an inspection your iPod may only reveal an embarrassing love of boy bands, the data on your mobile phone might reveal more about you. According to a recent Wired article, multi-functional devices like the iPhone may hold lots of details about illegal activities, but also pose challenges to forensics experts trying to get to the data.

One of the reasons that an iPhone (or any other smartphone, really) isn't a good device to use when masterminding criminal schemes is that it gets used a lot. It's obviously a good choice for making calls, but having Internet and e-mail capabilities that are easily accessible may mean that your iPhone contains more dirt on your activities than your call information alone would.

And unlike normal phones, the iPhone has plenty of memory and flash storage to keep everything around for a while.

The article also discusses how having a "completely closed system" based on Mac OS X makes life significantly harder for anyone trying to get at all the information on an iPhone. The closed nature of the iPhone has given hackers some trouble, and is also frustrating forensics experts who are looking for a way to get data off the iPhone without it being altered. Since even innocuous things like turning the phone on can alter data, it's a bit of a tall order. And because it's OS X, software targeted at PCs doesn't do much. Targeting the computer that an iPhone is synced with using Mac forensics tools may be a better plan of attack, but even then, recovering information could be difficult.

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Source: ARS Technica
By: Justin Berka

Best Practices: Meeting Compliance Challenges

June 2005

After 9/11, Enron, Ahold, WorldCom and Parmalat, governments all over the world have enacted new laws concerning corporate governance, financial and reporting practices, data protection and privacy, consumer protection, preventing terrorism, and more. The resulting security, data backup, and electronic documentation requirements have spawned a need for new kinds of IT systems with auditing, monitoring, and reporting capabilities that affect companies of all sizes. This paper addresses these implications and the resulting compliance challenges.
The list of new regulations is impressive. Most direct the actions of large, publicly-held companies but not all of these regulations are reserved for large corporations.

Yes, This Means You

Several regulations directly affect smaller businesses in certain industry sectors, but plenty of others -- especially those with ambitions to grow and be acquired or go public -- will still feel the impact.

For these businesses, developing adequate corporate governance processes and structures prepares them for the future -- a future in which, according to researcher International Data Corp., the vast majority of businesses will need information management compliance solutions to help with the likes of electronic discovery of documents and realtime analysis of IT systems.3-1
Are Your Business Practices Legal?

Consider these examples of violations of EU/UK data protection rules:

Via a third-party marketing firm, a respected Irish charity disclosed donor information to a bank and received in return a donation for each donor who responded to the bank's sales effort, even though the charity's donors had not agreed to this use of their information.

A car rental agency charged alleged damage to a customer's credit card -- but the customer had not used his credit card to rent the car and the agency misused credit card data from an earlier transaction, data that should have been destroyed.

The Long Arm of the Law: Does This Mean Today?

Even those with more modest growth plans may face immediate compliance requirements: HIPAA (the Health Information Portability and Accountability Act) demands that all U.S. healthcare providers, large and small, must not only protect the privacy of patient data but also be able to prove they've done so. The price of noncompliance is exposure to liability issues as well as civil and criminal penalties. Similarly, the UK's recently revised Electronic Commerce Regulations impose new information requirements on small businesses as well as large companies engaged in e-commerce.

Various U.S. Securities & Exchange Commission (SEC) regulations require compliance from small brokerage houses and financial services firms, while small banks and even certified public accountants (CPAs) must deal with the Gramm-Leach-Bliley Act (GLBA) and related antimoney- laundering regulations. The U.S. Patriot Act, meanwhile, impacts both large and small trading and financial services companies including check-cashing businesses, that includes new rules aimed at preventing terrorism and money-laundering by requiring businesses to be able to identify customers and activities that might be suspicious.

And the Sarbanes-Oxley Act in the United States (SOX) -- requiring, among other things, that a business's relevant financial reports be certified by both the CEO and CFO -- affects both small publicly-held and privately-owned companies not just based in the U.S. but all over the world.

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Source: PC World