2010: A Year In Review

In 2010 we have seen many exciting changes to the e-discovery landscape. Metadata and social media have now become standards to be included in discovery requests. Litigation continued to rise in a lagging economy and the sanctions relating to e-discovery violations grew as courts increased awareness. The use of e-discovery tools have been extended for both regulatory compliance and internal investigation functions as well.

In response, corporations have begun to look into new ways to approach the e-discovery problem. First, they have reached out to create internal or external clouds for e-discovery. They have also incorporated archiving into their e-discovery process, a move which intimates the continuing trend of moving discovery in-house.

In 2011 we see similar trends coming to the fore. The incorporation of more data sources (including structured databases), coupled with more advanced analytics and outsourcing to the cloud for space and processing power will ensure that the year ahead will be a dynamic one. For a full 2011 projection check out ZL Technologies' 12 Important E-Discovery Trends for 2011 and Beyond published by eweek.com.  

FRCP Rule 26 Changes

Visit this site for the latest changes on FRCP Rule 26 regarding e-discovery. Here are a couple of the highlights from the article:

Instead, under proposed amendments to Rule 26, those communications would come under the protection of the work-product doctrine. The amendments would prohibit discovery of draft expert reports and limit discovery of attorney-expert communications. Still allowed would be full discovery of the expert's opinions and of the facts or data used to support them....

...The proposed rule retains the three categories of attorney-expert communications that are excluded from the work-product protection under the existing rule:

1. Communications pertaining to the expert's compensation.
2. Facts or data that the attorney provided and the expert considered in forming opinions.
3. Assumptions that the attorney provided and that the expert relied on.

In another change, the proposed rule would alter the procedure for witnesses who will provide expert testimony but who were not specifically retained to provide expert testimony. Treating physicians and government accident investigators are examples of this category of expert.

NewsFlash: e-Discovery Sanctions on the Rise

Okay, so maybe it isn’t shocking to learn that E-Discovery sanctions have risen every year in the past 10 years.  But it is surprising to find that the rise has been so great and that it continues regardless of aggressive attorney educational efforts and maturing technological solutions. 

If you haven’t already seen it, last month the folks at legalworkshop.org published a thorough analysis of e-discovery violations throughout the past 29 years (yes, there was an e-discovery case in 1981). You can find the original post here.  According to the authors “ESI has played a more predominant role in pretrial discovery; producing parties have struggled to comply with ever-expanding and increasingly complex responsibilities. The liberal scope of discovery in federal courts, when coupled with ESI’s defining characteristics—high volume, broad dispersal, and dynamic nature—also confounds efforts to conduct discovery effectively and economically.”

We continue to see this played out in the courts and in the marketplace. The ruling in Qualcomm Inc. v. Broadcom Corp concluded that Qualcomm and its counsel failed to produce more than 200,000 pages of relevant electronic documents and was ordered to pay $8.5 million in legal fees. In the Victor Stanley v. Creative Pipe decision, intentional e-discovery mishaps nearly led to jail time and cost over $300,000 in sanctions.

A quick analysis of the data shows that written rulings on E-Discovery almost tripled between 2003 and 2004 – with a steady increase in each consecutive year and culminating in 2009 with 111 total rulings, 46 sanctions awarded and 12 adverse jury instruction sanctions. The rise of adverse jury instruction sanctions should be of particular concern for  defendants since it was found that the sanctions disproportionally affect them.  Indeed, since 2005, the courts have seen between a 1:5 to 1:3 ratio of plaintiff sanctions to defendants’.

With sanctions being given out at historic rates, it behooves legal counsels to take advantage of timely educational opportunities.  For example, ZL is hosting a webinar next week, December 14^th, on Ethics in E-Discovery (sign up here) and another on 1/11 and 1/25 in January.  For more information click here. 

In addition, in-house attorneys should re-evaluate their e-discovery software to see if it can scale to match the incredible influx of documents and includes air-tight audit trails to prove the defensibility of all actions taken.  By combining education and the tools to properly address e-discovery, ZL aims to help all of our customers develop an unquestionably defensible e-discovery process.

Government Rewarding Whistleblowers and Effective Whistleblower Policies

A little publicized provision in the new Dodd–Frank Wall Street Reform and Consumer Protection Act, “…requires the Commission to pay an award…to eligible whistleblowers who voluntarily provide the Commission with original information about a violation of the federal securities laws that leads to the successful enforcement of a covered judicial or administrative action…” 

In the end, the provision allows the commission to pay between 10 to 30 percent of any recovery over $1 million to whistleblowers who give original information of fraud. As the Wall Street Journal’s Law Blog points out, “It opens companies up to more scrutiny from the SEC, and will likely raise costs.”

Corporate compliance systems will be under increased scrutiny internally, as employees are given incentive to tell on their employers, and externally, from the SEC itself. It is of importance to develop a system to quickly conduct internal investigations and to develop a set of whistleblower policies conducive to such an environment.

An effective whistle blower policy will:

·         prohibit employees from interfering with the right of another employee to blow the whistle

·         prohibit employees from retaliating against an employee for having made a protected disclosure or for having refused an illegal order

·         provide a procedure for raising a concern to the corporate legal department

·         provide a procedure for filing and addressing complaints of retaliation for whistleblowing

Once these policies have been enforced, it is then vital to implement a robust investigation process – a process which manages internal reports of fraud and investigations directed by the SEC itself. The ability to quickly launch a thorough investigation, to identify areas of risk or to take action against open cases, becomes increasingly important as scrutiny increases. The Dodd-Frank bill pushes to light the mandate to create an environment of corporate transparency – an order now directly from Washington.

Investigations can take months to complete - disparate data sources and an incomplete data map can make collection a logistical nightmare. By deploying ZL Technologies’ Unified Archive, enterprises can manage and search through all of their unstructured data (including email and file shares) from one platform. This cuts down collection from days or weeks to seconds. With the Unified Archive, responding to an allegation of misconduct has never been simpler.

The Extended Functions of E-Discovery: Litigation Support, Regulatory Compliance, and Internal Investigations

E-discovery solutions have naturally been classified as litigation support, and in this post I'll go over why this area continues to be of growing concern. In another section, I will cover why the same solutions which provide litigation support can also help to solve internal investigations as well. 

First, rising litigation highlights the importance of e-Discovery. In Fulbright's most recent survey litigation survey, over 90% of U.S. and U.K. respondents expecting legal disputes to increase or remain the same:  

…93% of U.S. and 97% of U.K. respondents expecting legal disputes to increase or remain the same this coming year. This expectation comes during a year when 87% of U.S. respondents faced new litigation in the past year (up from 83% last year) and 53% of all respondents initiated a suit in the past year (up from 48% overall last year)....In the U.S. – and for large-caps in particular – intellectual property and patent litigation are also high on respondents’ radars. 

And, according to the same study, "More regulators have been investigating a greater variety of companies, from small to large and across sectors – particularly banking, health care and energy." Rampant regulatory changes and stricter enforcement seem to have increased the need for the ability to find documents within an enterprise.

Like most things, cost produces the constraints which this process work around. Bringing discovery in-house reduces the cost at an astonishing rate. Patrick Oot, a member of the Law Technology News Editorial Advisory Board, is director of electronic discovery and senior litigation counsel at Verizon, based in Washington, D.C. says:

In July 2008, our EDD team completed a business case that presented an opportunity for Verizon to save about $4 million in legal expenses in one year by establishing an in-house system, with support staff, infrastructure and software for internal data processing, hosting and review. We believe that over the next three years, this business case will yield up to potential 395 percent return on investment.

Following this example, both NBC and Microsoft have moved their discovery internally. At NBC, Jonathan Chow -Chief Information Security Officer (CISO) - heads the IT implementation and explained to ComputerWorld that, as with many corporations, the information security department includes e-discovery as a key responsibility for litigation support, M&A activities, and internal investigations. The move in-house allows NBC to administer searches and investigations internally without the dubious cost of hiring outside vendors.

E-discovery Used Internally

E-discovery solutions have traditionally only been seen as a litigation support tool. But no longer. Today, savvy businesses are using the same tools to solve internal investigations, regulatory compliance and records management issues. 

The use of e-discovery tools in internal investigations remains vital for international corporations as well as domestic outfits. All major companies need the ability to search electronically stored information ( ESI) to complete internal investigations that may be generated by HR or corporate security. No matter the regulatory environment, personnel misconduct and fraud detection must be of vital importance for any company - and a particular worry for CISOs, Chief Security Officers, General Counsels, and CEOs. Unauthorized access to sell or manipulate data and sexual harassment or other inappropriate communication has become all too common, and internal investigations have become ever more important as a result.

Compliance with government regulations remains of great importance to industries such as financial services and healthcare as well as the broader set of publically listed companies. NASD, SEC, and HIPAA govern strict regulations on the retention of e-mail and other ESI. As a part of information management and security, e-discovery tools like ZL’s Unifed Archive can manage the retention (or destruction) schedules for ESI based on a granular set of rules. If a company’s ESI were sand in a box, ZL’s proactive e-discovery tool is a very speedy fine-toothed comb.

As the application of e-discovery tools expand, many companies find that classifying them purely as litigation support can be a misnomer. The discovery function serves both litigation support and internal investigations due to the increasing need to hold employees accountable to company policies. No matter the name, the ability to search through a company's ESI remains a pillar of responsible corporate governance. 

Qualcomm v. Broadcom

We've been swamped over here lately, but while you are waiting in eager anticipation for the next post, check out Law.com's revisit of the 3 year old  Qualcomm Inc. v. Broadcom Corp. 

During trial, the court learned that Qualcomm and its counsel did not produce more than 200,000 pages of relevant electronic documents. As a result, Qualcomm was ordered to pay Broadcom's hefty legal fees ($8.5 million)...

This is, according to e-discovery expert Adam Sand, one of the heaviest e-discovery fines. And although this might be 'old' news by now, I think that it is still highly relevant. Cases of such gross negligence are hard to come by, but it does prove that it can happen. And 8.5 million is a lot.

IBM Acquires PSS Systems

Breaking news from IQPC Oil & Gas. You can find the press release here. With the combination of Symantec taking in LiveOffice last month, industry consolidation seems to be picking up steam.

Here's an interesting excerpt from the article [emphasis mine]:

A recent study by the Compliance, Governance and Oversight Council found that fewer than 25 percent of organizations were able to dispose of data properly because they lacked rigorous legal hold management practices and effective record retention programs. The report also estimates that that costs associated with legal electronic discovery average more than $3 million per case and about 70 percent of information is often needlessly retained.

I do not doubt that electronic discovery can cost, on average, $3 million. With painful manual collection and export to numerous review platforms/counsels the time and fees spend can be enormous. Moving e-discovery in-house is the only way to get a hold of these costs. See how at www.zlti.com.

Avoid the Big House: Bring e-Discovery In-House

Over at Law.com you can find an extensive examination of the recently filed Victor Stanley Inc. v. Creative Pipe Inc ruling. Here's a valuable excerpt [emphasis mine]:

Magistrate Judge Paul Grimm's lengthy opinion in Victor Stanley Inc. v. Creative Pipe Inc., filed Sept. 9, is worth the read... But the opinion is newsworthy because it sets out a harsh remedy for the defendant whom he found had destroyed evidence, lied to the court and dragged out proceedings -- civil contempt, with the defendant facing severe costs and fines or a two-year prison sentence if he fails to pay that fine. 

The court's focus upon and analysis of the costs -- in time, money, effort, and expertise -- of spoliation and dilatory tactics to the justice system is both spot on and timely.

What this has done is to highlight how important it is to follow a defensible discovery collection process and reinforce the fact that spoliation can directly lead to jail time. The importance of a legally defensible and thorough discovery process cannot be overstated.

It is not just one tool which can be a panacea, but the build-out of an entire data management process which will reduce risk. The industry standard, Electronic Discovery Reference Model (EDRM), serves as a decent guide:



The EDRM, although a good guide, can be limiting, as its flow does not represent the continuous nature of many discovery processes. At ITBusinessEdge I found another way to look at managing the process:

This visualization, unlike the one-way EDRM, views information management and discovery as part of a continuing process. I believe that this is much more accurate, as discovery can last for years (in the case of Victor Stanley, four years) and can involve going back to the data well many times for a multitude of matters or custodians. The process involves many more parties than purely Legal or IT, but touches upon the foundation of a company's technology strategy.

In order to develop a thorough discovery process, GCs and, increasingly, CIOs need to bring as much e-discovery in-house as possible. CIO.com states that:

The other critical remedy to minimizing risks and costs is bringing as much of the e-discovery process as possible “in-house”. Of course, this means that in-house staff must have a thorough working knowledge of the relevant processes, organizational archiving and data structure and enough technical know-how to choose and implement the right tools to support the required processes, which include (data) identification, preservation, collection, processing, review, analysis, production and presentation.

ZL Technologies developed our solution exactly so that companies can have this level of control over their data. Streamlining the discovery process is only one function of managing data, yet it may well be the most important, as emphasized by Judge Grimm in Victor Stanley Inc. v. Creative Pipe Inc. Corporations should get control of their data and discovery...and leave prison to the murderers.

Facebook Update: Download Your Information

Here is an excerpt from Mashable.com's blog today covering Facebook's latest announcement:

10:49: Announcement: Download Your Information. It’s exactly as it sounds; it lets you download your Facebook data.

10:50: Dashboard for Applications You Use revealed. Alllows you to anage your apps in a simple way.

10:51: Now the company’s product manager for open source is on stage discussing Download Your Information.

10:53: It’s made for regular users. You start the process, Facebook lets you know when your data is ready to be downloaded, and then you have a zip file with your profile info, photos you’ve been tagged in, videos, friends, etc

It looks like we will soon be able to gather all of our data from Facebook. I can only imagine that this will again increase the amount of data we have to deal with, and will bring up security issues as well. That shouldn't be a huge problem for individuals, who can opt-in/out as they choose, but perhaps for corporations with pages and profiles on Facebook that would be some very good information indeed (data mining anyone?), as they can see who their friends and fans consist of. That kind of information can be very valuable.

Facebook also announced a few more handy features, like design changes and a change in the way groups operate, namely that they will try to facilitate your social circles more rather than be simple constructs to organize people. Check out more at Gizmodo, who has done a good job summarizing.

Obama Administration and Email Privacy

Check out this article posted today on BoingBoing about Obama's policy on encrypted e-mails. The administration wants to keep back doors open for the government to get to encrypted messages to ensure that they have access to sensitive or potentially threatening information. Personally, I view this as an attack on privacy altogether. Individuals, employees, and especially companies have good reason to secure their communications (i.e. intellectual property) and any back doors can be exploited.

Privacy and Legal Ramifications in the Social Media World

Image via Wikipedia

In an interesting exploration of the social media world, Malcolm Gladwell of Tipping Point fame, analyzes the impact of social media in The New Yorker here. His analysis contends that social media cannot enact true social change because "...The platforms of social media are built around weak ties," and social movements have historically grown from the bonds of close ties. As evidence, Mr. Gladwell suggests that the Greensboro sit-ins in the 1960s directly supports that the bonds of close ties are the only manner of enacting true social change.


I cannot disagree more, and The Economist's Free Exchange presents, what I believe, is a clear rejection of Mr. Gladwell's theory here. As suggested by Free Exchange, "One mistake is to assume that social media merely increases weak ties...Networks like Twitter and Facebook reduce the cost of minor interactions, which leads to more minor interactions." Which leads to the ability to manage more strong ties. Furthermore, Mr. Gladwell fails to see that the internet's social network is much more like the Greensboro network than he could imagine. Free Exchange comments on the benefits, "Networks, on the other hand, are bottom-up enterprises. They're very difficult to shut-down or break." The same is true of this today as in the 1960s, when sit-ins were staged across the country. 


Image via CrunchBaseThe influence of social media cannot be underestimated, and it will continue to grow. The effectiveness can be proved. In the last month a lone, forums across the internet have spurred over $250,000 in donations to American classrooms and a Rally in Washington, DC. The genesis of which came from one man's post. The proof is simply in the pudding.


Social media is now an avenue to spur action, and in the very near future companies and large organizations will be fully harnessing this power. Applications like Yammer  and Jive are starting to create internal networks to share knowledge and gather it into action. But like Toby McGuire will tell you, with great power comes great responsibility. Over at Law.com, Ken Strutin explains the expanding liability of social media here. He notes that on Facebook, Linked In, MySpace, and Twitter:

The problem is that a defendant's postings are usually impulsive, the product of or encouraged by exchanges with friends, and produced under a vague notion of online privacy. Once the damage is done, a concerted effort to present a complete picture might be the best option to ameliorate its impact.

This sort of personal liability will extend to the corporate world as well, especially as we see social media begin to overlap in both spheres. However, in the majority of today's corporations, there has been no concerted effort to understand what type of content leaks onto social media from their networks and employees.

The need here is to be able to archive these interactions, and ensure that employees understand what this means. Social media will exist in perpetuity on the internet, yet the company may not have access to this data if it is not archived. Should litigation hit, serious holes in the discovery process could occur, having legal teams face sanctions for negligence or worse. These are holes which, although not included in many cases now, have pointers on different servers and databases across the internet. It is not the simple case of just one missing file here or there, which in itself could be a huge problem. 


Soon enough, as courts begin to better understand the impact of social media, so too will their enforcement of it as relevant and discoverable. Companies must be prepared.

Everyone's Heads in the Cloud

Image via WikipediaThese days it seems as if everyone wants to be in "the cloud". This term is ambiguous at best, as the meaning and ultimate usage of such a system can vary widely. I believe a corporate deployment of cloud computing harnesses resources which are already in place and efficiently allocates these resources across various applications. These resources can be data or processing cycles. 

On the other hand, the reliance on a third party to completely outsource the storage of data or processing can be unreliable and dangerous in certain situations. Specifically, the Patriot Act allows the government access to hosted data service providers without their clients knowledge. The ability to look at private corporate data stored on that network, therefore, would compromise the integrity of a corporation. Similarly, outsourcing any processing lends the corporation to higher IT liability and bandwidth concerns.

Virtualization of a corporation allows for the best of both worlds, a reliable and efficiently run IT environment. However, in addition to this environment, IT folks should be sure that the mission critical software they run are architect in a manner to take full advantage of this.

GRID architecture allows software to use hardware with high availability, the ability to scale, and a consistent fail-over system. In a follow-up post I will go into a little more detail on what GRID architecture entails.

Oracle Open World --- TBD Later

Yesterday I spent the day at Oracle Open World, their giant event covering downtown San Francisco. I'll go into more detail in some of the lessons learned there. Unfortunately, I'm also currently battling a cold, so analysis will have to wait till next week.

Edit: I thought that last week I'd be able to find more to dig out of the Oracle convention, but there's really not much to parse out here that was relevant to e-Discovery or general records management that would break the trends. There continues to be the feeling that data is continuing to grow for companies, and that they need more storage (always more!) -- and of course Oracle should be meeting that need. The focus was less on the ability to reduce the amount of storage (which would cut into sales), but on availability and speed of storage (which differentiates the company). I think reducing data is a key point to pound home here, but that's not going to be in the best interest of most of the parties involved in the Oracle World.

Harkabi v. SanDisk Revisited

Image via WikipediaI found an interesting Blog Post by K&L Gates today, going further in depth on the repercussions of the Harkarbi case here. If you were interested in the case I think its worth a look. For a brief overview of what happened you can read over my previous blog post here, but I'd definitely recommend reading K&L's analysis for a more thorough interpretation.

Europe: In-House Attorney-Client Out the Window

In a stunning decision yesterday the European Court of Justice held that communications between the company and in-house lawyers are not protected from disclosure or discovery.

Law.com quotes London solicitor J. Daniel Fitz, former chairman of the board of Association of corporate counsel, "The ECJ ruling has serious ramifications as it denies in-house attorneys and multinational businesses in Europe and elsewhere the critical legal counsel on competition law matters that companies working in today's global legal marketplace require."

The Guardian's Julianne O'Leary believes that this is an unjustified knock against in-house counsels, who will be unable to do their jobs effectively -- that is to provide sound legal advice to their employers. Law.com's Marcia Coyle agrees in that the ruling is "a blow to multinational businesses".
 
The ruling holds that privilege will only be granted pertaining to "independent lawyers," that is "lawyers who are not bound to the client by a relationship of employment."

I agree that this will drastically reduce the abilities of in-house counsel to provide legal advice, fundamentally changes the role of in-house counsel and will force companies to lean on outside counsel more often. A few things quickly off the the top of my mind which this also affects in the EU:

-Cost of litigation will increase as use of outside counsel becomes more prevalent
-Role of in-house counsel will be drastically retooled to reflect the increased transparency
-Electronic discovery will become more important since in-house counsel communications are now discoverable
-Multinational corporations will need to be increasingly careful policing their communications

Ball Sees Decisions

Over on Craig Ball's EDD Update, he posts in reference to Zubulake that: 

Total reliance on an employee to search and select won't cut it in Judge Scheindlin's court. 

The decision puts a nail in the coffin of custodial-delegated holds and persuades me that, at least in the SDNY, no nabob should delegate preservation and search to minions, and certainly no lawyer should leave search to clients alone.  The opinion prompts further resignation to keep everything--especially all e-mail--and cease rotating tapes [s]hould someone so much as whisper the word "lawsuit."  

Mr. Ball is an e-Discovery thought leader and has practically written the book on the subject. In this case, I could not agree with him more and this relates directly to my last post. ESI must be managed centrally; relying on custodial-delegates is just not defensible AND is inefficient. There is no reason to keep high-cost, high-liability processes alive when there are known processes to replace them.

Extenze That Retention Policy

Image via Wikipedia

From The Modern Archivist's Adam Sand: 

In Takeda Pharmaceutical Company Ltd. V. Teva Pharmaceuticals USA, Inc., 2010 WL 2640492 (D. Del. June 21, 2010), a patent dispute between two pharmaceutical companies, the court ordered that the relevant time period for all discovery requests be expanded to include the past 18 years.  Because the plaintiff had conceived of the patent and reduced it to practice 18 years ago, the documents from the entire time period may contain relevant data.

 This is not a new trend. Companies are being forced to hold onto their ESI for longer and longer periods of time due to the increasing liability of lawsuits. In specific, companies with a critical mass of intellectual property (especially in the case of long product development cycles such as in Pharma), can be hamstrung to hold onto their information for years.

 Although it is currently unclear as to an industry standard or mandate, as Mr. Sand continues, "it is possible that more organizations will be holding on to their ESI for ten years or more." This brings to the fore two relevant issues:

 1. How are companies going to realistically enforce these policies?

 2. How can companies manage the vast amount of data these retention policies force them to hold?

 The solution for the execution of the policy is to simplify, and interestingly enough the solution for the storage will follow. In order to enforce such a policy, ESI must be centrally managed. There is no way to ensure proper life cycle management if there are either multiple copies or multiple policies or some combination of both. One copy, one policy will ensure proper retention compliance.

 Storage, then, will see dramatic reduction if there is only one copy! Check out www.zlti.com for more.

p.s. We are launching a new site this week, so be sure to keep checking it!

Government Retention Policies

In case you were ever wondering, here is what the government actually has to do in terms of retaining their electronic documents. Whether or not they actually have the ability to do this is another story. Source can be found here.

Document	Retention Period
(1) Records pertaining to Contract Disputes Act actions.	6 years and 3 months after final action or decision for files created prior to October 1, 1979. 1 year after final action or decision for files created on or after October 1, 1979.
(2) Contracts (and related records or documents, including successful proposals) exceeding the simplified acquisition threshold for other than construction.	6 years and 3 months after final payment.
(3) Contracts (and related records or documents, including successful proposals) at or below the simplified acquisition threshold for other than construction.	3 years after final payment.
(4) Construction contracts:
(i) Above $2,000.	6 years and 3 months after final payment.
(ii) $2,000 or less.	3 years after final payment.
(iii) Related records or documents, including successful proposals, except for contractor's payrolls (see (b)(4)(iv)).	Same as contract file.
(iv) Contractor's payrolls submitted in accordance with Department of Labor regulations, with related certifications, anti-kickback affidavits, and other related papers.	3 years after contract completion unless contract performance is the subject of an enforcement action on that date.
(5) Solicited and unsolicited unsuccessful offers, quotations, bids, and proposals:	.
(i) Relating to contracts above the simplified acquisition threshold.	If filed separately from contract file, until contract is completed. Otherwise, the same as related contract file.
(ii) Relating to contracts at or below the simplified acquisition threshold.	1 year after date of award or until final payment, whichever is later.
(6) Files for canceled solicitations.	5 years after cancellation.
(7) Other copies of procurement file records used by component elements of a contracting office for administrative purposes.	Upon termination or completion.
(8) Documents pertaining generally to the contractor as described at 4.801(c)(3).	Until superseded or obsolete.
(9) Data submitted to the Federal Procurement Data System (FPDS). Electronic data file maintained by fiscal year, containing unclassified records of all procurements other than simplified acquisitions, and information required under 4.603.	5 years after submittal to FPDS.
(10) Investigations, cases pending or in litigation (including protests), or similar matters.	Until final clearance or settlement, or, if related to a document identified in (b)(1) - (9), for the retention period specified for the related document, whichever is later.