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The eDiscovery Paradigm Shift

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Wednesday, August 20, 2008 Blog post Misses Point on Forrester Teleconference on email Archiving

Beth Pariseau with misses the point "with her title" in an August 19th, 2008 posting titled Forrester urges users to avoid overkill with email archiving
regarding comments that Forrester analyst Jo Maitland made in a recent conference call to clients about email archiving.

Maitland did a really great job outlining the requirements of email archiving under various scenarios and never really urged users to avoid overkill. In fact, she states appropriately that “Email archiving is a strategic project, not just a quick fix to manage performance or service levels - it aims to manage information for the long term.” And, she only used the words "overkill" when discussing the use of WORM Storage when stating while policy-setting is still an area of unavoidable complexity, Maitland also emphasized that users won’t necessarily need all the features in every archiving and e-Discovery product. WORM, for example “is overkill for most things.” Instead, if a company really needs WORM for a subset of data, she advocated a tiered strategy where only the data that really needs WORM protection is migrated and stored on a WORM system.

I agree with Maitland on this issue. However, I would add the facts that for those organizations under SEC compliance requirements, SEC Rules 17a-4, 204-2 and 31a-2 require storing relevant emails in WORM storage for a given period. And, there is no doubt that maintaining separate WORM storage just for email adds to costs and increases support and management demands on storage administrators. However, some Web-based email archiving can save these admins money and relieve a few headaches. In addition, Web-based archiving also typically offers secure storage. This provides a real disaster recovery benefit, since emails are automatically stored off site.

However, I contend that to use this example and quote from Maitland in the title is a dangerous misrepresentation of the seriousness of email archiving. I would suggest that the title should be Forrester outlines email archiving mistakes to avoid.

The full text of Beth's posting is as follows:

Everyone and their brother has an email archiving story to tell you these days, or so it seems. But Forrester Research analyst Jo Maitland told Forrester clients in a teleconference titled “Email Archiving Mistakes to Avoid” to keep things simple in their selection of a product and setting of policies.

Users need to begin with a strategy that addresses backup and archiving separately (apparently not everyone in the storage industry read Mr W. Backup’s definitive “Backups are not Archives” article a couple years ago…). Then, they should take into account their requirements for the deployment - whether it will be for end user restore/Exchange optimization, or for legal discovery.

According to Maitland, this is the most crucial step in determining which product will work best in a given environment, and one not everyone clearly understands. This isn’t helped by an overcrowded market with vendors trying to shout over each other with ever-more-complex features, but Maitland boiled it down to a few key things. An archive for e-Discovery should mark data for legal hold and notify an administrator when new content hits an existing search; those seeking an archive for legal discovery should also try to look for one that covers more data types than just email.

For email optimization and end user restore, the product should allow access to emails via a Web browser, automatically copy messages to the archive and delete them from primary storage (too many stub files can still clog up the mail server), and allow simple retrieval back to the inbox.
The two purposes for an archive - eDiscovery and end user restore - can be mutually exclusive, Maitland said.

Once the requirements are determined, Maitland advised that policies be set - and once again, kept as simple as possible. “Nirvana policies are not practical,” she said. If policies are too strict or too lax, she pointed out, “everybody ignores the policy and finds underground ways of keeping their data anyway.” A 30-day deletion policy, moreover, “flies in the face of 10 years of best practices in records management,” and can still expose a company to risk when it needs some data to defend itself. But keeping data forever quickly overwhelms today’s search and indexing tools.

While policy-setting is still an area of unavoidable complexity, Maitland also emphasized that users won’t necessarily need all the features in every archiving and e-Discovery product. WORM, for example “is overkill for most things.” Instead, if a company really needs WORM for a subset of data, she advocated a tiered strategy where only the data that really needs WORM protection is migrated and stored on a WORM system.

So, yes, with this type of tiered approach, it means ongoing management, something Maitland said admins often overlook when planning an archiving strategy. “With archiving today it can’t be just plug it in and forget it,” Maitland said. “Email archiving is a strategic project, not just a quick fix to manage performance or service levels - it aims to manage information for the long term.”

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Tuesday, August 19, 2008

Early Case Assessment (ECA)

With the accelerating increase in the amount of Electronically Stored Information (ESI) and the associated changes to the Federal Rules of Civil Procedure (FRCP) enacted in December of 2006, a proper understanding of preservation requirements and Early Case Assessment (ECA) have become an integral part of the litigation process.

In a perfect world, as soon as defense counsel or anyone within an organization with fiduciary responsibilities believes that there is the potential for litigation or is actually notified of a pending litigation, they have the responsibility to preserve any evidence that may pertain to the matter.

While each state, and some local jurisdictions, has promulgated its own rules, the Federal Rules of Civil Procedure (FRCP) in general and FRCP 26(a) and FRCP 26(b) specifically set forth the guidelines for producing, both spontaneously and upon request relevant and material evidence.

Inherent in the reasoning behind these rules is the requirement that in order to produce a thing, one must first have preserved it. For those parties who are not inclined to appreciate this inherent reasoning, there are other rules (and corresponding sanctions) designed to enhance this understanding.

For discussion of the "safe harbor" provisions of a proposed amendment to FRCP 37, and an analysis of numerous federal sanction request cases as related to the advisability of such amendment, see S. Scheindlin and K. Wangkeo, eDiscovery Sanctions in the 21st Century, 11 Mich. TELECOMM. TECH. L. REV. 71 (2004),

For those parties that do understand the importance of these requirements or have learned the hard way through sanctions or case losses, the importance of these requirements, Early Case Assessment (ECA) is hopefully become a part the standard operating procedure (SOP) as soon as it is clear that a matter is imminent.

This all being said, Early Case Assessment (ECA) is becoming an actual market with its own consultants, technology, services and beginning of best practices.

Industry Quotes and Comments on Early Case Assessment
Following are several quotes from vendors and comments regarding the importance of ECA and their technology. As it appears that just about every technology vendor in the litigation space is getting into ECA in some way, this list is in no way comprehensive and therefore I would encourage other vendors to send me their thoughts, comments and descriptions of their ECA technologies.

"Early case assessments represent a critical point in the lifecycle of a case, and is one of the primary reasons why leading enterprises and law firms are selecting solutions like Clearwell," said Kamal Shah, vice president of marketing, Clearwell Systems. "Clearwell plays a pivotal role by helping in-house legal teams and law firms assess risk based on case facts, more accurately estimate e-discovery costs, and develop case strategies much earlier in the e-discovery process."

"We were facing a complicated case and had virtually no time to determine the facts. If we did not have access to Clearwell, the case would have become excessively costly and time consuming, resulting in significantly increased risk," said Steven Perfrement, Esq, partner in the Litigation Practice Group at Holme Roberts & Owen LLP. "We were very impressed with the speed and ease of use of the Clearwell platform. The product was very intuitive and user-friendly, which saved us precious time on the case.

Clearwell's advanced capabilities made it very easy to find the key facts needed to accurately evaluate the case and prepare for early settlement negotiations." Clearwell's early case assessment capabilities provide insight into case facts at the beginning stages of an investigation or litigation, and enables enterprises and their law firms to:

- Determine what happened and identify the "key players."
- How did the incident happen?
- Why did it happen?
- Who was involved?
- When did it happen?
- How does the case posture appear on the merits?
- What is the amount of controversial facts and what it the ultimate exposure?
- Is this a routine matter or a unique situation?
- Can the case be settled quickly, or must we prepare for a protracted battle?
- What is the volume of evidence that is pertinent to the case?
- hat are the possible culling and review strategies that can reduce the cost and time of eDiscovery?
- Are you collecting all the data that you are supposed to be collecting?
- Are there any requirements for foreign language expertise?
- Are there any data quality issues?
- Which search term analysis may be necessary to present and discuss during the "meet and confer."?
- Which terms are most important to the case?
- Are the search terms proposed by requesting party too broad?
- Do you have an argument to limit the scope of discovery request?

Performing an Early Case Assessment (ECA) can provide valuable insight into all of these areas and better prepare the litigation team for the "meet and confer" with the opposition. A recent industry survey indicated that performing an early case assessment resulted in a favorable outcome in 76% of cases - among other benefits.

A well executed ECA assists the litigator and corporate counsel in understanding the following:

- The custodians involved in the matter
- Where their data is located
- How much data the case involves
- If any of the data is inaccessible

Additionally, in some cases ECA can provide visual insight into the data itself. Accordingly, ECA permits an informed risk assessment of the matter so the case can be settled quickly if potential costs rise or the results of the data visualization reveal bad facts.

Managing Legal Risk Using ECA
I also found a very interesting Blog posting on DCIG by Joshua L. Konkle on March 18, 2008 6:00 am titled Managing legal risk using early case assessment to reduce reviewed documents.

And although I don't completely agree with everything that Gregory Buckles says, it provides yet another voice indicating the importance of ECA. The full text of this posting is as follows:

Synopsis Part 1: Legal and business issues IT must know when choosing an early case assessment tool

Synopsis Part 2: Managing legal risk using early case assessment to reduce reviewed documents Electronic data discovery interview - Gregory "Greg" Buckles, eDiscovery business process consultant, Reason-ed, LLC, (Part 2 of 2).

Gregory Buckles is an independent corporate consultant specializing in discovery technology and process solutions. He has 19 years experience in discovery and litigation including police forensics, law firm, vendor, corporate and software development. He is an active participant in the Sedona Conference and EDRM projects.By Joshua Konkle writing for DCIGInc.com

Joshua Konkle: I've discussed in-house early case assessment (ECA) with a few vendors. A common response is risk associated in the review process. Risk ensues when during the review an attorney needs more data from the source data set for review purposes, thus requiring the company to revisit the ECA system for more data. I was told in most cases it happens 70% of the time. What are you thoughts on that review data risk?

Greg Buckles: I would agree with that 70% of the time reviews require more data from the source, in fact, it is probably higher. The reason the source data needs to be recalled during review is based on a simple fact - "the review phase is the FIRST time a qualified reviewer has looked at the data qualitatively, i.e. custodians, concepts, context etc."Waiting until the data is in a review system to evaluate it is causing companies thousands if not millions annually. Those dollars would be much better spent as pennies, which is the cost of ECA tools in terms of review budgets. The goal's are simple 1) reduce data sets going into review 2) improve data review during collection.Companies can reduce the amount of data being re-requested during review if they evaluated data ahead of review. If a company desires to reduce the amount of money spent on review they must implement on-premise ECA tools and use them to review data.

Joshua Konkle: In your experience, what is happening today? Aren't companies doing early cases assessment through interviews etc?

Greg Buckles: Companies are doing early case assessment. Often times it is a very simple approach. For example, an attorney working for the company will ask an employee for their opinion on the issue and to submit all documents and email related to the cases or issue. Individual perception and memory impact these responses. Then, when an end-user delivers data it is typically only what they have received and what they have filed. However, there are thousands or more emails and documents in their sent items. These little things are unintentionally overlooked by employees.To overcome these challenges companies need tools that analyze the known relevant data. They don't need complicated preservation and legal hold; they just need to start looking at the data earlier in the process. For example, a recent client used the Axis Deduplicator to deduplicate PST files. Since it the reduced the size, they reduced the cost of an ECA tool. In this example, the client used Attenex Snapshot reports to get a dashboard view of the custodians and concepts. The intuitive interfaces enable a focused view to find the critical facts and criteria needed to decide strategy and arm the client for the meet-and-confer.

Joshua Konkle: In your experience, what are the pitfalls that enterprises have yet to encounter bringing eDiscovery inside their firewall?

Greg Buckles: The primary issue is defining which parts of the process to in-source and the thresholds for using outside assistance. The costs and effort associated with an average discovery must be evaluated. Then a company can design a legal risk management system in line with their needs and expected budgets. A gap analysis for both cost and effort will ensure the economics of the system are in the company's best interests. By economics, I mean avoiding spending more money than they are saving. A good start would be to purchase or test ECA tools.

If you would like to communicate with him directly, he can be reached at greg(at) or by calling Reason-eD, LLC at 1 713 530 3416.

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