Email

Companies are no longer surprised, as they were in 2003 when the Zubulake opinions began to issue, when requests for production of documents include email and other electronic files. Virtually all information in the modern business environment is digital, and companies expect to produce digital information during the discovery phase of a lawsuit. Today, many organizations use software solutions that automatically archive email so it can be searched, produced and preserved. Used properly, email archiving software prevents messages that are evidence in a case from being deleted and uses business rules to manage retention and destruction.

Litigation Hold

The court orders in Zubulake stressed that it wasn’t enough for a company to merely send a litigation hold notice to individuals who might have information relevant to the subject matter of a case. Judge Scheindlin emphasized the importance of establishing a process for issuing litigation holds and collecting information. Ten years later, software saves the day again. Many suites of ediscovery products now include a legal hold application that works with an enterprise’s Active Directory or HR system to issue hold notices, send reminder notices, record a recipients’ agreement to preserve records, and escalate noncompliance up the organizational chart. Some products also include custodian questionnaires and file transfer capabilities to facilitate collection of information.

Cloud Computing

In the early days of ediscovery, litigants struggled to collect data from hard drives and backup tapes. But now, cloud computing puts all that data in a virtual environment. Users can access data over the Internet with scaled-back machines and high-speed bandwidth. Servers that hold the data may be located in data centers all over the United States, or even overseas. With cloud computing, a company relies on vendors to preserve and collect its own data files, outsourcing much of its ediscovery risk. However, misunderstandings can occur if vendors go out of business or merge with other providers. Ironclad contracts help manage the risk, but an indemnification clause in a contract means little to a vendor that has declared bankruptcy.

Social Networking

A company that leverages all the features on its Facebook page can do brand marketing on the social networking site and leave its website free for ecommerce. Facebook, Foursquare, Twitter and the like enable companies to communicate with their consumers without using email or phone calls. Transparency rules the day as fans and critics alike provide real-time feedback and interaction that marketers used to dream about. One potential pitfall of social networking is that, as with cloud computing, all the data resides on someone else’s server, and an organization loses an element of control of its information. A business can delete a critical comment, but a copy of it resides indefinitely on Facebook’s servers. Similarly, a Twitter feed never really goes away, and an ill-advised tweet can be used for nefarious purposes.

Over time, litigants have come to view ediscovery as a necessary part of litigation. Attorneys meet and confer, exchange search terms and argue over the effectiveness of predictive coding — a new practice that connects information based on user relationships and key words and phrases. As ediscovery evolves, a techno-legal practitioner’s due diligence must include monitoring both legal and technological developments. Choosing the right consultants and vendors is key to compliance with changing regulations.

About the Author

Jon Dawson practiced law in Washington D.C. for over four years, mainly doing litigation support. He was ‘in the trenches’ of electronic discovery performing large scale document reviews. He covers various topics on law and technology including e-Discovery and cloud computing and how these have changed the legal profession.

A glimpse of news articles and discussions flags that we are no longer a one-man-island.  Everything that happens, is either recorded in an email, text, or picture for instance.  Even if you delete these files, your computer still retains a copy or part of the copy of the deleted file.  In the realm of 2 terrabyte hard drives, the chances that these deleted documents are still in your computer are pretty high.  It is no surprise that in litigation we want to know what these documents say, show, and prove.  Take for instance City of Ontario, Cal. v. Quon, 560 U.S. ___ (2010), where the US Supreme Court debated whether a police officer had a reasonable expectation to privacy to texts he sent using his cell phone, which was provided by the Police Department.  Likewise, think of the situation where a worker is fired for lying – where the worker represented he was at work, and the GPS on his phone, which was provided by the employer, placed him elsewhere.  In short, electronic discovery matters.  People don’t often think about their emails or texts in the same way as writing a letter in letterhead.  Emails and texts, or voicemails, are short, made quickly, and often have invaluable information – including metadata, which allows the parties to tell when a document was created, deleted, modified, and see prior versions.

Due to the importance of discovery, courts take it very seriously.  Especially the duty to preserve documents.  Ever since Zubulake v. UBS Warbug, LLC, the threat of sanctions paid by a party has loomed the realm of discovery.  Zubulake and its predecessors have brought into focus the question of when do you retain documents, how do you properly retain documents, and to what extent you are bound to preserve these documents.

What follows is a quick guide to starting that conversation with your client when the duty to preserve arises.

• Familiarize with your client’s computer systems (and IT personnel)
• Identify key individuals
• Find out about retention policies for paper and computer systems
• Find out if cloud computing is an issue
• Find out what storage media are relevant
• Find out what backup and archives are relevant
• Send a litigation hold letter to the key individuals alerting them of their duty to preserve

In other words, you want to identify what needs to be searched.  For example, storage media that might be involved include work computers, home computers, laptops, netbooks, workstations, pagers, PDAs, Blackberries, iPhones, iPod, iPad, tablets, pen drives, thumb drives, flash drives, mp3 players, cameras, voicemail, cell phones (SMS texts and MMS texts, or video, pictures, calendar), game devices, printers, fax machines, scanners, and copiers.

You also want to prevent the documents from being deleted/destroyed.  Does your client destroy documents (either paper or electronic) every year?  Every 5 years?  Does the email system automatically delete all emails older than 30 days?  How often is information backed up?  How often are backup tapes erased?

You also want to identify where the relevant documents will be.  For example, who might have these documents?  Identifying the key individuals will help preserve the documents.  It would make sense to institute a litigation hold on X department involved in the lawsuit, but not Y department.  Are some of these documents probably on backup tapes?  Is there a reason to believe that documents were erased and you would need the backup tapes?

Likewise, you want to identify where the documents and their copies are stored.  Generally, when you send an email, it is stored in multiple locations.  First, the sender’s outbox.  Second, the server.  Third, the cloud computing server that gives access online to email.  Fourth, the receiver’s inbox.  Fifth, anyone copied in the email.  Sixth, a third party vendor may be also keeping a copy.  Seventh, you may also store a copy in your phone.  This is why it is important to know what type of network and providers your client is using.  It will help to know if documents are being stored in the cloud, network, third-party vendors, and users’ work and personal devices/computers/phones.  Also think about the question whether you have to put the third-party on notice of the litigation hold and ask them to preserve documents.

Finally, it is important to advise your client not to self-select information.  The client should read your litigation hold letter broadly and preserve all documents that may apply.  It is then your duty to narrow down by reviewing these documents for responsiveness, privilege, and the like.

Source: This article originally appeared at MinnLawyer.com.

About the Author:

Francis Rojas practices in the areas of employment and labor law. She focuses on helping workers who have experienced employment discrimination, harassment and retaliation. In addition, Francis counsels workers who have experienced wage and hour violations. Francis also advises workers in union organizing campaigns and assists unions with contract enforcement. She graduated from William Mitchell College of Law in 2008 and has a B.A. in Psychology and Sociology from Augsburg College. While in law school, Francis interned with the Equal Employment Opportunity Commission. She also helped individuals and non-profit organizations through the William Mitchell Civil Advocacy Clinic and the Tax Planning Clinic. Francis was born in Bogotá, Colombia and is fluent in Spanish.

Hidden away in corporate databases are some nasty ticking time bombs.

Nonetheless, few companies think much about the risks of electronic discovery until they face serious litigation. But there are ways for you to avoid the substantial costs and risks from “eDiscovery” before you get hit with lawsuit-related fishing expeditions – and after you get served.

Counting down David Letterman style, here are 10 things you can do to address the risks in electronic discovery:

• #10: Less is more. Day-to-day efficiencies and litigation preparedness can ensue when an organization develops and implements a “Records Retention” policy and program.  As the U.S. Supreme Court ruled unanimously in 2005 in the Arthur Andersen case, a “retention” policy is actually a destruction policy, designed to keep information from getting into the hands of others, including the Government. So routine disposition of old stale, unneeded and duplicative electronically stored information is the first objective.   Having less information and knowing what the company has – and where – should enable more effective operations. An added benefit is shrinkage of the data set subject to processing – and possibly to exposure to an adversary – in response to a future lawsuit, a non-party subpoena in someone else’s lawsuit or a government inquiry.
• #9: Sing Kumbaya: In developing the appropriate parameters of an effective, defensible retention/destruction program, make sure that folks from the Legal and IT Departments collaborate. If the key in-house lawyer or outside counsel is from Mars and the essential IT leader is from Venus, then use an interplanetary translator to help develop a litigation-preparedness program. Then everyone can get together and harmonize on the same tune.
• #8: Preserve or Perish. Have a “litigation hold protocol” that assigns certain significant duties to one key person, usually a lawyer but sometimes a C-level executive. He or she will decide whether or not a legal dispute is “reasonably anticipated” such that a “litigation hold” must be issued to preserve all potentially discoverable information. In addition, he or she will oversee the implementation of the hold. Without an adequate process and memorialization of steps taken – and steps not taken – a company can have a very hard time defending itself against a “spoliation” (illegal destruction) contention raised down the line by a litigation adversary. On the other hand, a routine, “real” and documented approach can insulate against risk. The elephant in the room is that a spoliation finding could morph into a dismissal or default judgment by a judge who becomes frustrated and suspicious.
• #7: Build the Three-Legged Stool. Form an eDiscovery task force that will stand tall in three arenas: knowledgeable people; a powerful computer-technology platform; and a set of up-to-date written protocols to guide the in-house and outside teams through the process. At a minimum, make sure you have in place a short list of trusted outsiders with expertise in collecting live data and forensically recoverable data.
• #6: Preserve, Protect, Defend. Preserve as broadly as possible without hampering the IT Department’ s operations and budget. As to the to-be-collected subset of the preserved electronic information, make sure your techie has: sufficient skills to avoid altering metadata (creation date, last modified date); the wherewithal to maintain chain-of-custody information; and the wisdom to segregate a pristine data set so processors and reviewers are only turned loose on a working copy.
• #5:  Natives Need Not Make You Restless. Consider exchanging email messages and electronic files (especially spreadsheets) in their original/”native” formats. Harness the technology know-how and an agreed-upon method of electronic-fingerprinting to prevent alteration. In many a case, “going native” can avoid huge out-of-pocket costs of converting thousands of items to an image format. Work with the other side up front to enter into a clear written agreement (“stipulation”) as to the format(s) of exchange of electronic information.
• #4: Get M.A.D.?  Then Get Even. Be careful what you request from the other side as that adversary will assuredly request the same from you. When two companies apply the Mutually Assured Destruction (M.A.D.) principle, they can take off the table costly volumes of data, such as digital voicemails and back-up data created prospectively.  Then hopefully the eDiscovery playing field can be as even as possible.
• #3: Cooperate to Cull Aggressively and to Preserve Clawback Rights. The less electronic information that gets reviewed by lawyers, the less the discovery costs will be. So, as much as possible before the review team launches in, cull down the data set by employing objective criteria, subjective criteria (search methodology) and concept-searching software. At an early stage, the lawyer most familiar with the substance of the case should spend some time surfing and searching the electronically stored information. Then, based on his/her first cut, alter the review subsets and strategies accordingly. Early in the case, see if you can cooperate with the other side to set respective expectations for culling efforts. At the outset, also use best efforts to reach agreement with the other side as to the mutual right to “claw-back” privileged information that, given high volumes of data, might get through inadvertently. Get the judge to sign on to the clawback agreement so your company will be protected in the current suit and future lawsuits into which the inadvertently produced ESI could wend its way.
• #2: QA/QC: Periodically use Quality-Assurance (QA) tests to make sure the review is not generating an over-inclusive or under-inclusive data set.  Then, before the data goes out the door, use some Quality-Control (QC) testing before. When agreeing with the other side to a production deadline, build in a cushion for QA/QC on your end. In general, consider involving a search-methodology expert. You may need him or her later on if the other side challenges how you got from Point A (tons of collected electronic data) to Point B (production of a much smaller subset). One key culling arena in which that expert might be valuable would be the segregation of data protected by attorney-client privilege.
• #1: Never Drop Your Laptop Bag and Run. When urging his law students to never back down, the legendary, 50-plus-years Brooklyn Law School Professor Joseph Crea has always exhorted: “Never drop your briefcase and run!” In today’s digital wild west of eDiscovery, a more modern mantra – for lawyers and non-lawyers alike – might be “Never drop your laptop bag and run!” Some day all of us will be copacetic with electronically stored information and the lawsuit discovery process will be coextensive with eDiscovery.  At that point, routinized court-endorsed people-plus-technology processes will enable all litigants to more readily get to the merits. Until that day arrives, dig in, learn as much as you can and start building repeatable, efficient approaches.

Robert D. Brownstone is the Technology & eDiscovery Counsel and Electronic Information Management Practice Group Co-Chair at Fenwick & West LLP, a Silicon-Valley-based law firm.

Source: This article originally appeared in Forbes.

The reality of small firms is that any money spent on e-discovery is money not available for attorney’s fees. That’s a problem. The solution is to minimize the amount of money spent on electronic discovery.

Some ways I have minimized the expense of e-discovery include:

1. Printing emails
2. Providing emails as PDF files
3. Stipulating to the authenticity of emails with opposing counsel
4. Using the methods above for social media, Facebook pages, and websites

Sure, the big e-discovery companies would rather that you employ them than to use these methods. They might even try to scare you with prominent judicial orders regarding malpractice and ESI preservation.

However, often these methods of cheap e-discovery work fine, especially when an opposing party is also on a limited budget.

The big law firms of the world can hire the big electronic discovery companies of the world. In the meantime, small law firms and solo attorneys must be realistic and practical about how limited litigation dollars are spent.

Most judges and attorneys understand—and may event appreciate—they expense of computer discovery. Fortunately, there are inexpensive ways to conduct electronic discovery.

What do you think? Do you have suggestions for cheap e-discovery?  Do you have criticisms of this post (if you do, please at least reveal whether you work for an e-discovery vendor)?

Information management has therefore grown over the years but has unfortunately been unable to keep up with the sheer amount of information being created. Information in organizations includes company emails, websites and any other information generated by the organization. This requires information management to embrace all these different sources and types of information and compile them into a manageable, searchable and comprehensible database. Two methods are employed to do this. The first is an enterprise search engine. This simply organizes and performs searches on broad terms such as dates, departments and so on. It is however limited in searching for specific documents. The other solution available is the enterprise content management system. This provides a more comprehensive, specific and versatile search capability that makes it easier to search for specific documents within the database.

Within the corporate culture, information management has slowly begun to take center stage. As more organizations and companies realize the importance of information to the overall strategy of the organization, investments in enterprise content management systems have appreciated, albeit gradually. Organizational structures are built around the four aspects of the SWOT analysis; strengths, weaknesses, opportunities and threats. As a company develops and constructs this structure, it becomes apparent that the information passed to and fro between its clients, employees and management hold the key to determining the overall health or soundness of the organizational structure. However, managing information may prove to be a tough nut to crack due to organizational culture. Due to the established cultures that may not embrace information management, many organizations today simply have no clear-cut strategy of how to implement information management.

Perhaps the biggest driver for this lack of commitment is the cost attached to developing and implementing a tailor-made enterprise content management system in the organization. Most companies prefer to simply plug in an enterprise search engine and assume that their information management or content management is sorted out. However, this tends to come back to bite with a vengeance in the event that a specific communication is required and there is no way of finding for it. Corporate culture again is a hurdle that affects the resource allocation towards content management. Traditional resource allocations continue to dominate the financial budgets as companies seek to invest in only the things that will directly and immediately affect the bottom line. This has placed many companies in a vulnerable position.

One issue that companies find themselves exposed to when they do not implement e-discovery systems in their organizations is continuity, Business continuity is perhaps the most important aspect of business strategy. No business strategy makes sense if it is unable to clearly postulate the steps and measures to take to ensure continuity in the event of any eventuality. E-discovery is perhaps the best example of a business continuity strategic investment. The information accrued by an organization is what provides the company with a blue print of the true performance of the company. In addition, it is said that by looking into the past it is possible to plan for the future. E-discovery creates the favorable corporate ecosystem that will see the company’s strategic plans succeed.

Another aspect that is affected by information is litigation. Every company finds itself in court at one point or another. Part of the litigation process involves e-discovery. In the past, most attorneys thrived on a paper-based discovery process. They would stack boxes upon boxes of company files and sift through them until they found the privileged or relevant material. Today, this process has seen a paradigm shift as the information presented for discovery is simply a storage device with several gigabytes of information, an equivalent of several tens of thousands of pages. E-discovery, therefore, has suddenly jumped into the limelight with virtually no framework or basis to build upon. Most law firms then find themselves with the arduous task of sifting through these e-records and companies end up with some pretty steep invoices.

The solution to all this is e-discovery based on a sound and elaborate enterprise content management system. This is an initiative that must be undertaken by both the legal fraternity in terms of training on e-discovery and by organizations through implementation of e-discovery enterprise content management systems.

This article was authored by Steven Rosen. Steven Rosen is a freelance writer and blogger for Ledjit Consulting, a Montreal-based e-discovery and information management consulting firm.

These tips may be useful to attorneys in family law cases where email, text messages, or FaceBook communications may be an issue, but often the parties don’t have much money. As family law attorneys know, money spent on e-discovery means less money available to pay the attorney’s fees.  Thus, attorneys on both sides may have an incentive to spend less money fighting over e-discovery and work out e-discovery issues in a less expensive manner.

If you have any other tips regarding inexpensive e-discovery, please add them to the conversation. Read the conversation here: Cheap E-Discovery: Inexpensive E-Discovery Tips.

In short, as the world increasingly uses computers for communications and tracking information, evidence in lawsuits is increasingly found on computers and other electronic media. Now consider how each document might have multiple versions, each email includes a copy of the message it replies to, how quickly documents and emails can be created, and how quickly the amount of information can be duplicated as its sent back-and-forth or copied to new locations.

Parties in litigation can’t afford to pay their attorneys to analyze the equivalent of 100,000 pages on a computer, and attorneys are required to scan documents for privileged or relevant information during the litigation discovery process. So when a party in a lawsuit tells the attorney it can’t afford to pay $80,000 in legal fees just to analyze all the documents and emails stored on a computer system, what should the lawyer do? This is the question that courts and attorneys are wrestling with, as they have been adopting new rules and procedures to handle these new challenges.

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Ms. Brecher also discusses e-discovery in the context of employment law, legal holds, document preservation, and reasonably accessible data.

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