eDiscovery XML

Coming from the object oriented software development world and more recently from the Software-as-a-Service (SaaS) development world, XML or eXtensible Markup Language is a mainstay. However, with my new pond being eDiscovery technology, XML is just another acronym that everyone has to learn. And, although us eDiscovery technology gurus may never catch up to the SaaS nerds, I would suspect that XML is going to have to be a big part of our pond as we all seek to exchange and integrate the massive amounts of ESI that we have so eloquently generated.

As such, I found the following article, E-Discovery Guru Not Yet Wed to XML, by Craig Ball published on the Law Technology News site on March 25, 2008 to be extremely informative and timely. The text of Mr. Ball's article is as follows:

I want to love XML. I want to embrace it with the passion of my wiser colleagues, excited by its schemas, titillated by its well-formed code, flushed from its pull-parsing. I want to love XML as much as the cool kids do. So why does it leave me cold?

I want XML the dragon slayer: all the functionality of native electronic evidence coupled with the ease of identification, reliable redaction and intelligibility of paper documents. The promise is palpable; but for now, XML is just a clever replacement for load files, those clumsy Sancho Panzas that serve as squire to addled TIFF image productions. Maybe that's reason enough to love XML.

XML is eXtensible Markup Language, an unfamiliar name for a familiar technology. Markup languages are coded identifiers paired with text and other information. They can define the appearance of content, like the reveal-codes screen of Corel Inc.'s WordPerfect documents. They also serve to tag content to distinguish whether 09011957 is a birth date (09/01/1957), a phone number (0-901-1957) or a Bates number. Plus, markup languages allow machines to talk to each other in ways humans understand.

Internet surfers rely on a markup language called HyperText Markup Language or HTML that forms the pages of the World Wide Web. There's a good chance the e-mail you send or receive is HTML, too. If you've tried to move documents between WordPerfect and Microsoft Corp.'s Word, or synchronize information across different programs, you know success hinges on how well one application understands the data of another.

Something as simple as importing day-first European date formats to month-first U.S. systems causes big headaches if the recipient doesn't know what it's getting.
Standardized markup languages alleviate problems by tagging data to describe it (e.g., ), constraining data by imposing conditions (e.g., restricting dates to U.S. formats: ) and supporting hierarchic structuring of information (e.g., 01/09/1957).

There are so many kinds of data and metadata unique to applications and industries that a universal tagging system would be absurdly complex and couldn't keep pace with technology and business. Accordingly, XML is extensible; that is, anyone can create tags and set their descriptions and parameters. Then, just as persons with different native tongues can agree to converse in a language both speak, different computer systems can communicate using an agreed-upon XML implementation. It's Esperanto for electrons.

In e-discovery, we deal with information piecemeal, such as native documents and system metadata or e-mail messages and headers. We even deconstruct evidence by imaging it and stripping it of searchability, only to have to reconstruct the lost text and produce it with the image. Metadata, header data and searchable text tend to be produced in containers called load files housing delimited text, meaning that values in each row of data follow a rigid sequence and are separated by characters like commas, tabs or quotation marks. Using load files entails negotiating their organization or agreeing to employ a structure geared to review software such as CT Summation or Lexis Nexis Concordance. Conventional load files are unforgiving. Deviate from the required sequence, or omit, misplace or include an extra delimiter, and it's a train wreck.

By tagging each value to identify its content and connection to the evidence, XML brings intelligence and resilience to load files. More importantly, XML fosters the ability to move data from one environment to another simply by matching the tags to proper counterparts.
Like our multilingual speakers using a common language, as long as two systems employ the same XML tags and organization (typically shared as an XML Schema Definition or XSD file), they can quickly and intelligibly share information. Parties and vendors exchanging data can fashion a common schema custom tailored to their data or employ a published schema suited to the task.

There is no standard e-discovery XML schema in wide use, but consultants George Socha and Tom Gelbmann are promoting one crafted as part of their groundbreaking Electronic Discovery Reference Model project. Socha (a member of LTN's Editorial Advisory Board) and Gelbmann have done an impressive job securing commitments from e-discovery service providers to adopt EDRM XML as an industry lingua franca. See http://edrm.net.

A mature e-discovery XML schema must incorporate and authenticate native and nontextual data and ensure that the resulting XML stays valid and well-formed. It's feasible to encode and incorporate binary formats using MIME (the same way they travel via e-mail), and to authenticate by hashing; but these refinements aren't yet a part of the EDRM schema.

So stay tuned. I don't love XML yet, but it promises to be everyone's new best friend.

Craig Ball, a member of the editorial advisory boards of both LTN and Law.com Legal Technology is a trial lawyer and computer forensics/EDD special master, based in Austin, Texas.

Labels: EDRM, eXtensible Markup Language, Glebmann, Metadata, Socha, XML

posted by Charles Skamser @ 4:10 PM 0 Comments

Document Retention Policies and Practices

I recently found a checklist for Document Retention Policies and Practices written by Cecil A. Lynn III, Director of Industry Relations at LexisNexis Applied Discovery. And although this list is not comprehensive, it provides an extremely strong foundation up which to build your organizations list. Following is his list:

1. Maintain Document Retention Policies And Practices.
Every company should have a comprehensive, regularly audited document retention policy. The policy not only sets forth the procedures for the uniform and timely destruction of documents - both electronic and paper - but also establishes a consistent plan that is applied company-wide. A good document retention policy coupled with vigilant enforcement may be a company's best defense against claims of spoliation of evidence. The Federal Rules offer safe harbor for companies that lose data during the routine, good-faith operation of their electronic information systems. See FRCP 37(f). The "routine" requirement may be evidenced, in part, by a document retention policy. Counsel should review the company's retention program to ensure that it is current, applies to all employees in all locations, and is regularly monitored and enforced.

2. Understand The Corporation's Electronic Information Systems.
Case law underscores the need for outside counsel to become familiar with their client's electronic information and data retention architecture. See Phoenix Four Inc. v. Strategic Resources Corp., 2006 U.S. Dist. LEXIS 32211 at * 16-17 (S.D.N.Y. 2006) and Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004). The responsibility is even greater for in-house counsel who often provide a necessary link between the company's information technology (IT) department and outside counsel. Thus, corporate legal departments should develop a solid working relationship with the company's IT department and an understanding of the company's IT systems. Such an understanding is vital to the successful implementation of a document retention policy and will prove invaluable in evaluating preservation efforts in litigation.

3. Implement And Monitor Litigation Hold Procedures, When Appropriate.
The notion of document and information preservation is not something new to corporations. Several regulations impose preservation requirements on certain companies for the retention of documents and, in some cases, impose criminal penalties for their unlawful destruction. At common law, a company has a duty to preserve documents and electronic data when it "knows or reasonably should know" that information may be relevant to pending or anticipated litigation. Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003). Once litigation is anticipated, a party must suspend its routine document retention/ destruction policy and put in place a litigation hold to preserve what it knows, or reasonably should know, is relevant to the action. See Hynix Semiconductor, Inc. v. Rambus, 2006 U.S. Dist. LEXIS 30690, *66-67 (N.D. Cal. 2006) and Samsung Elecs. Co. v. Rambus, 2006 U.S. Dist. LEXIS 50007, *96-99 (E.D. Va. 2006).

Corporate counsel must determine appropriate trigger points for "anticipation of litigation" and develop litigation hold procedures to implement upon such triggers. See Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 2007 U.S. Dist. LEXIS 15277 at *23-24 (D. Co. March 2, 2007); see also Heng Chan v. Triple 8 Palace Inc., 2005 U.S. Dist. LEXIS 16520 at *16 (S.D.N.Y. 2005) (counsel has an obligation to monitor compliance with the company's preservation obligations). Counsel should be proactive and ensure that litigation hold procedures are being complied with.

4. Communicate With Key Custodians And Key Data Stewards.
When practical, counsel should communicate face-to-face with key players to make sure that they understand the seriousness of the preservation obligation and the consequences of destruction of potentially relevant evidence. Counsel should inquire about the potential witnesses's personal practices for document management and retention and determine whether it is consistent with company policy and determine whether the individual keeps potentially discoverable material on sources that are not online with the company's computer systems (e.g., home computer, PDA, pocket drive, etc.) Most importantly, counsel must explain the custodian's ongoing preservation obligation. A written litigation hold notice should be sent to these individuals that reminds them of their responsibilities under the company's document retention policy and specifically cautions them to refrain from altering, modifying or deleting potentially relevant information.

Counsel should also communicate with the "data stewards" - the IT staff who manage the resources on which key players create/store corporate data. Discuss whether it is appropriate or necessary to take a mirror image of the relevant storage devices and make sure that any auto-delete functionality is disabled. Counsel and IT should make sure that relevant active files are not deleted, converted to backup tape, or otherwise downgraded. Metadata should be preserved, even if the determination has not yet been made to produce it.

5. Establish An E-Discovery Committee.
In-house counsel should consider putting together a team with representatives from the IT department, records management, corporate compliance and the legal department to develop and implement an action plan for litigation involving electronic discovery. This team will be responsible for keeping the legal department apprised of procedural or staff changes that impact document retention policies, including any litigation holds in place. The IT representatives would advise of the latest technologies acquired by the company that impact data storage or relate to the company's document retention program.

Counsel may also want to interview and train potential Rule 30(b)(6) witnesses, ideally members of the committee who have knowledge and can effectively articulate their expertise with all aspects of the company's computer processing and storage capabilities.

6. Implement A Plan To Maintain Data Formats And Map Data Sources.
Electronic information can be maintained in a variety of formats and on multiple types of media. Corporate counsel should work closely with the IT department to determine how information is preserved and whether data is converted or degraded for storage or archival purposes. Counsel should also be aware of the range of potential sources for relevant information and collaborate with IT to develop a "data map" which profiles the company's sources and locations of electronically stored information. A data map can set out in detail the company's different active data creation and storage systems and give valuable insight into the potential cost - in terms of time and money - of preserving and collecting the information. Data mapping profiles may include details about:

• the applications and file types in use at the company, including details on proprietary or unique applications and integrated databases - particularly business-critical applications or those which are likely targets of discovery;
• the range of electronic communications, such as: email, instant messaging, voicemail, and Voice Over Internet Protocol applications, and including details about server organization, physical locations, and backup protocols for each;
• network storage and file servers, including information about server organization, physical location, and backup protocols;
• workstation distributions and configurations;
• remote user set-up (i.e., are employees able to VPN in from their home computers?);
• distribution and use of mobile devices, including laptops and PDAs, with specific attention to whether data on such devices is captured or "synched" in any formal fashion.

7. Establish A Collection Methodology So That Responsive Data Can Be Securely Stored Prior To Processing, Review And Production.
There are several collection methodologies and technologies that can realize significant cost savings for corporations. In-house counsel should explore these techniques to determine if they are right for the company. For example, corporations can establish a "black box" service on which duplicate copies of relevant emails are automatically stored. The black box reduces the risk of deletion. If the company is involved in multiple pieces of litigation where the same documents are at issue, counsel may want to consider building a central data repository. Document repositories can save the corporation time and money as the company may need to review the documents only once and information about the documents such as relevance, privilege, Bates stamps and redactions can all be retained and reused in subsequent litigation.

8. Determine What Information Is Not Reasonably Accessible Due To Undue Burden Or Cost.
While the general rule is that parties may obtain discovery on any matter relevant to the claims or defenses involved in the case, see FRCP 26(b)(1), the rules offer limitations where data sources are not reasonably accessible due to undue cost or burden. See FRCP 26(b)(2)(B). However, even if the data sources are deemed not reasonably accessible, the court may still order production and set conditions on the requested production, including cost shifting. See FRCP 26(b)(2).

A data map will assist counsel in the determination of whether data sources are arguably not reasonably accessible. Counsel should also discuss the potential cost and burden with their IT department and a data collection specialist to determine whether selective restoration or sampling of inaccessible data is appropriate. For some data, restoration may still be cost prohibitive given the amount at stake in the litigation.

9. Take Proactive Steps To Prevent The Potential Inadvertent Production Of Privileged Documents.
The sheer volume of electronically stored information that may be produced in litigation increases the risk of inadvertent production of privileged or protected documents. However, there are steps that corporate departments can take prior to litigation to reduce the risk of inadvertent production. If practical, privileged documents can be segregated, coded, or tagged in the ordinary course of business thereby reducing the risk that they will be commingled with non-privileged data. Boilerplate tags and footers that read "attorney-client privilege" may be insufficient to identify a protected document, particularly if the tag is automatically and indiscriminately applied to every email generated from a particular user.

10. Communicate Regularly With Outside Counsel.
In-house counsel must fully understand the company's preservation, collection and production procedures relating to electronically stored information and be able to discuss them with their outside counsel. This is particularly important in the beginning stages of litigation when the parties meet and confer under Rule 26(f). In-house counsel may want to be present during this conference to assist outside counsel. Of course, the extent of counsel's involvement may vary depending upon the size and complexity of the case, the amount of the controversy, the location of the litigation and the volume of potentially relevant data.

As corporate counsel get more involved in the corporation's litigation matters and document retention policies and practices, they will feel more confident and comfortable with the electronic discovery-related changes to the Federal Rules of Civil Procedure. Education and communication are two keys to litigation preparedness. Both will make certain that the legal department can make reasonable and defensible choices regarding the collection, preservation and production of documents in litigation.

Labels: Data Map, Discovery, Distruction of Evidence, Document Rentention Policy, eDiscovery, eDiscovery Consultants, EDRM, email, ESI, FRCP, Metadata, Preservation, Zubulake

posted by Charles Skamser @ 3:23 PM 1 Comments

Metadata in the New eDiscovery Paradigm

As part of the 2006 amendments to the Federal Rules of Civil Procedure (FRPC), Rule 34 now provides that electronically stored information (ESI) can be produced (absent agreement or a court order) in either the form in which it was ordinarily maintained or in a "reasonably useable" form.

However, neither the rule nor the FRCP's "Advisory Committee Comments" address the circumstances under which metadata or embedded data must be produced in a particular case. Providing more guidance, Sedona Principle 12 initially provided a presumption that "[u]nless it is material to resolving the dispute, there is no obligation to preserve and produce metadata absent agreement of the parties or order of the court." After considerable discussion, Sedona Principle 12 was revised to provide a more nuanced view of the need for metadata. It now provides that the form of production should take into account "the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case."

The comments to Principle 12 explain the advantages and disadvantages of particular forms of production with relationship to the impact of the choices on metadata. Taking all of this into account under the assumption of quickly evolving database, application and associated intelligent ORT technology, I predict that metadata is going to evolve in its importance to the understanding of the underlying native data.

Labels: Discovery, eDiscovery, ESI, FRCP, Metadata, ORT, Sedona Conference

posted by Charles Skamser @ 8:44 PM 0 Comments