Records Management and Early Case Assessment (ECA)

• Identify the specific business objectives for their records management initiative and select the right vendor, as a records management program requires a long-term commitment and the product needs to be compatible with the organization's content management strategy.
• Assess the records management product's capabilities to integrate and extend records retention policy into other content repositories, e-mail systems, document archives and file stores, as well as its search and legal discovery capabilities.
• Consider records management products with capabilities to support multiple content types and media — physical records, which may be in distributed record centers; electronic documents, which may reside in multiple repositories; and e-mail, which may exist in both the e-mail system and e-mail archives.
• Consider the records management product's certification under country- and regional-level standards such as Department of Defense (DoD) Directive 5015.2-STD, Model Requirements for the Management of Electronic Records (MoReq) and Victorian Electronic Records Strategy (VERS)

MarketScope Information management leaders, compliance officers, legal counsel and records managers are working on records management projects that involve managing business document retention and preservation. A good records management initiative includes people, processes and technology. Industry and government regulations have helped lead or even necessitate records management adoption, but e-discovery as well as the need for more effective control of vast information stores in the enterprise have become even more important drivers. While highly regulated industries, such as financial services, utilities and pharmaceuticals, have always had record retention requirements, changes in government regulations have impacted companies across a broader range of industries. Freedom of information legislation, which has proliferated on a global scale, has also increased the need in government organizations to implement records management initiatives, in order to properly retain appropriate documents so they can be produced as requested. Despite today's challenging economic environment, the need for transparency and accountability in government agencies continues to drive the adoption of records management.

Records management systems have evolved from little more than the creation of indexes and tracking mechanisms for the preservation of paper documents to the preservation of electronic documents. As the range of digital content types continues to grow, electronic records management systems should now include mechanisms for dealing with audio, video and Web content. The emergence of wikis, blogs and social networking platforms also requires policies and approaches for retention of user-generated content. E-mail has proved to be especially problematic when it comes to maintaining business records. While e-mail active archiving systems support role-based and event-based retention, records management is still needed for those e-mails that must be retained as records.

Many records management products are integral components of enterprise content management (ECM) suites and will require additional software licenses. The ability to integrate and declare documents from ECM applications should be a prerequisite for records management products. Integration with Microsoft Office is also important, because much of the creation of future business records occurs in this information worker environment. As e-mail and instant messaging are now staples of conducting business, records management products must also be able to integrate with these infrastructure applications. Records management vendors are also emphasizing increased integration with e-mail active archiving, compliance and e-discovery applications. As the diversity of applications and content repositories expands, policy-driven records management, allowing for the automatic classification of records, will become the preferred choice.
Standards have been established in many countries to provide local requirements for records management. These standards include how different record types should be managed, rules for metadata creation, security definitions and implementation guidelines. Many of these standards have released their second versions. Key records management standards include:

• DoD Directive 5015.2-STD — A U.S. standard and certification for records management developed by the Department of Defense. The DoD 5015.2-STD version 2 standard includes a Chapter 2 version and a Chapter 4 version, which detail additional security and classification requirements. The latest version, which records management vendors are now being certified for, is DoD 5015.2-STD version 3.
• MoReq2 — The European Model Requirements for the Management of Electronic Records is a European standard for records management functionality and deployment. The goal of MoReq is to subsume individual national records management standards in the European community. MoReq2, the latest version developed and released in February 2008, is more comprehensive in terms of testing, governance and functionality. Certification and testing of MoReq2 for records management products is just beginning, and as MoReq2 becomes more formalized, we believe that it will serve as a key records management standard.
• TNA2 — TNA2 is a U.K. standard and certification published by The National Archives. Its requirements reflect the legislation and standards for information management and include aspects of ISO 15489, MoReq, e-government and freedom of information. TNA-approved records management products meet compliance with the standards but no certification process is used.
• Document Management and Electronic Archiving (DOMEA) — A German strategy and standard for records management and document management in government agencies. It has seen limited compliance and adoption by records management vendors.
• VERS 2 — The Victorian Electronic Records Strategy is a framework of standards and implementation with the goal of reliably and authentically archiving electronic records created or managed by the Victorian government in Australia. This standard has become the de facto standard for records management projects in Australia.
• Information & Documentation on Records Management Guidelines (ISO 15489) — The first international standard for the implementation of records management. It defines how records should be created, captured and managed, including policies and processes. Many national records management standards include elements of ISO 15489.

These standards can be used as a foundation and guideline for the evaluation and implementation of records management products. The DoD 5015.2 standard is well-established and is the only one that has a formal certification process. It is the de facto benchmark for records management products and acts as certification for essential product functionality. Gartner recommends that enterprises use the DoD 5015.2 STD 2007, version 3 standard as a key requirement when acquiring any records management product, along with consideration of local standards.

Labels: 26(f), Compliance, Early Case Assessment, ECA, eDiscovery, General Counsel, Records Management, Records Rentention

posted by Charles Skamser @ 10:36 AM 1 Comments

Are Changes to the FRCP Increasing the Cost of Litigation?

Over the past year, in pursuit of everyone trying to figure out the best way to address all of the issues created by the changes to the Federal Rules of Civil Procedure and all of the resulting changes to state and local rules, I have worked with litigators from over 75 different law firm, litigation services professionals from 50 different service providers, technologies from 50 different litigation technology vendors and the General Counsels, Associate General Counsels and related IT professionals for over 25 Fortune 1000 companies. In addition to an incredible education of the current state of the litigation market and all of the associated technologies and new service practices, what I have taken away from this journey is a sense that we are still in the middle of a paradigm shift that is rocking the industry to its very core.

As such, I believe that the answer to the question about whether or not the changes to the Federal Rules of Civil Procedure and all of the resulting changes to state and local rules, is going to be different depending upon who you are asking.

Following are the results of the answers that I have gotten from the various groups that I meet with:

Litigators
Litigators are reporting that the changes to the FRCP and all of the resulting changes to state and local rules have required them to "go back to school" and learn a more about the technology and science of litigation and Electronically Stored Information (ESI) then many of them ever cared to know. I can tell you that the CLE classes on the effects of the changes to the FRCP that I teach have been full with a lot of very attentive attorneys.

In addition, litigators are now learning that litigation has gotten much more complicated and much more expensive. And, they are realizing that they are now required to solicit the assistance of technology and process experts are the very beginning of case to participate in pre meet and confer strategy sessions.

Further, whether they have been caught off guard or not, many litigators are finding that it is making more financial sense to settle their cases out of court due to the extreme cost of just getting prepared for trial.

Finally, although I am not a liberty to discuss the details of any of the cases that I have been involved in, I believe that there are an alarming number of new suits being filed against corporations by savvy litigators in which the "end game" is to force a settlement out of court due to the high cost of preparation and initial response.

Litigation Service Providers
As with Litigators, Ligitation Service Providers are reporting that the changes to the FRCP and all of the resulting changes to state and local rules have required them to "go back to school" and learn a more about the technology and science of litigation and Electronically Stored Information (ESI) then many of them ever cared to know. Having started in the legal services business providing copying services, the current surviving providers had to successfully make the transition to the world of imaging, coding, translatoin and hosting over the past several years. They are now faced with the even more daunting task of making the next leap to the world of Electronic Data Discovery and Computer Forensics. For a variety of reason, many of them will not be successful unless they embrace the eDiscovery Paradigm Shift, form new partnerships with technology vendors and consultants that can help them with the new paradigm and change their clients perceptions of what they can bring to the new ESI table. It is my opinion that based upon this classic paradgim shift, there is a tremendous opportunity for the Litigation Service Providers that successfully make the transition and a blunt reality of failure waiting for those that do not.

Litigation Technology Providers
As alluded to in my overview of how the changes to the FRCP have effected the Litigation Services Providers, we are in the midst of a classic market paradigm shift which casuse fear, uncertainty and doubt on the buyer side. As such, and is the case in any market where this occurs, it is an open season for technology providers to step in and fill the requirements gaps with new solutions. Since many of the posts on my Blog deal with my my opinions of all of the wonderful new technologies, I am not going to go into any detail in this post. However, I would like to mention that I believe that the biggest technology winner that will emerge from this opportunity will be the Software-as-as-Service (SaaS) deliver model. Its lesss expensive to develop and deliver, less expensive to use and enables very rapid and incremental updates.

The Fortune 1000
The changes to the FRCP and all of the resulting changes to state and local rules have had the most profound effect on the way in which the Fortune 1000 now have to manage with all things related to litigation. Frist and foremost, they can no longer ignore the whole area of what I am going to refer to as ESI Management including the development and implementaiton of a proper rentention policy and the asssociated infrastructure without taking on the liability of severe financial consequences for no compliance.

In addition, ESI no longer includes just information on servers, desktops and lapstops. It now includes information stored on corporate issued thumb drives and other external storage devices, Blackberries and other PDA, cell phones and even information stored with third party email providers and a list of information that may be stored with applications delivered via a Software-as-as-Service (SaaS) model. And, since collection is no longer an option, IT departments may no longer have the expertise or experience to keep up.

Further, courts are becomming less and less tolerant of ignorance and/or inaction and therefore management of preservation notices and actual preservation have also become an area riddeled with the rick of sanction and servere financial consequences.

In summary, with the changes to the FRCP and all of the resulting changes to state and local rules, the Fortune 1000 can longer afford its IT departments to like its fathers corporate IT departments. The externally mandated compliance and litigation preparedness requirements are much greater and the consequences of non-compliance are server.

So, my conclusion is that the changes to the FRCP and all of the resulting changes to state and local rules probably seems like it has had a net result of making litigation more complex and much more expensive for everyone involved. And, with our country heading into a ression or a least a downturn, conducting successful litigation under the new requirements being impossed by the changes to the FRCP may seem like it has become out of reach financially for many. And, it may be for some time.

However, in the long these changes will enable our legal system as a whole and the individual participants more accurate and equal access to justice. Only time will tell.

Labels: Compliance, Discovery, Document Rentention Policy, eDiscovery, ESI, FRCP, Litigation, Litigation Service Providers, Paradigm Shifts, Preservation, Records Rentention, Saas, Software-as-a-Service

posted by Charles Skamser @ 10:17 AM 0 Comments

Corporations are Evidence Machines

In my never ending quest to find the best technologies in the industry, I have recently discovered Humanizing Technology (HT), a emerging player in the sophisticated search technology market.

The Problem
As I have been "preaching"on this Blog, after Enron and the changes to Federal Rules of Civil Procedure (FRCP), it has become increasingly risky for companies to rely solely upon reactive or remedial measures with regard to electronic compliance. Through (FRCP) directives, courts continue to impose more stringent eDiscovery requirements, increasingly mandating that companies better understand and manage electronic communications and records. These mandates, combined with the sheer volume of electronic communications and the proliferation of communications technologies, pose a serious risk to companies.

An October 1, 2007 Forbes magazine article titled, The Data Explosion, noted: "Corporations are evidence machines, generating terabytes of electronic documents, e-mails and digitally recorded phone calls each year." Non-compliance problems, many of which are perpetrated in electronic communications, can be and frequently are image-damaging publicity events for companies as well as a basis for significant financial and legal risk. Managing e-compliance in the midst of the data explosion, as opposed to having it manage you, is a key challenge to company boards, executives, and managers as well as their professional advisors.

HT History
HT began as a technology development company in early 2000 and soon began focusing upon applications that required the mining and extraction of hard-to-find information as a core competency. As such, HT developed a unique concept search technology and deployed it as a utility within its news search applications and patent search product. In these products, the technology proved its ability to deliver unique concept search capabilities and so HT embarked upon efforts to leverage its concept search technology by applying it to other markets.
In mid-2007, HT de-coupled its concept search technology from the news and patent search products to deploy it within various text-search applications. In just a few short months, HT proved the technology’s uniqueness within the following applications:

1. A significant mid-size manufacturing business searching various data stores that, when complete, will involve up to 2 tera-bytes of data searched.
2. Two leading Universities for searching intellectual property, research expertise, knowledge base information, and library archives.
3. A law firm searching its database of legal documents.
4. A medical information application searching various data stores for relevant patents, patient record data, and clinical trial results.
5. An Indiana law enforcement agency searching data stores of evidence.

Based on the success of the technology, HT sought to identify various business and/or legal problems that were complex and costly to organizations but could be solved by deploying superior technology that searches, finds, and retrieves critical information. Initially, HT was advised to deploy its technology toward electronic discovery. While this is an attractive market and involves complex business and legal issues, HT believes that it makes more sense to help companies avoid trouble (i.e., be proactive) rather than simply helping them get out of trouble (i.e., be reactive). Thus, the emerging area of electronic compliance became the focus of HT’s concept search. HT is bringing together expertise and state-of-the-art tools for the implementation of Best Practices in electronic compliance for its customers.

The HT Solution
HT’s Audit Quality Search (AQS) technology seeks to assist corporations in risk management by carrying out various aspects of a compliance audit program including routine internal monitoring, more thorough periodic internal audits, and very thorough external text audits. HT has the ability to assist executives, officers, board members, high level managers, audit committee members, and professional advisors in assessing regulatory compliance gaps, identifying and managing risk and, in general, carrying out a broad set of corporate governance and oversight responsibilities. HT AQS can be used in the following ways:

1. As an investigative tool to research specific suspected wrong-doing.
2. As a gap analysis tool to carry out proactive but general compliance assessments.
3. As a compliance audit tool to provide a basis for sampling and summarizing a company’s overall state of compliance (similar to the function of financial audits).
4. As a records management tool to analyze electronic record data stores and provide a basis for making retention/deletion decisions.
5. As a due diligence tool to analyze electronic record data stores for completed and/or prospective acquisitions.

By utilizing AQS technology as part of a comprehensive compliance audit program, company executives, managers, board member, audit committee members and professional advisors can reduce financial risk and legal exposure by implementing Best Practices and "reasonable state-of-the-art methods" for assuring compliance.

I would encourage anyone who reads this Blog to contact Michael Mulcahy, the VP of Business Development at HT to get more information about this interesting and very promsing new search solution.

Labels: AQS, Audit Quality Search, Compliance, Conceptual Search, Forbes, FRCP, Humanizing Technology, Proactive Discovery, Records Rentention, Seach Technology

posted by Charles Skamser @ 3:35 PM 0 Comments