Going Up: Balloons and Litigation

Up, like Pixar's profits after its record-smashing Toy Story 3, is apparently the only direction which litigation is heading. According to Fulbright & Jaworski's 6th Annual Litigation Trend Study, over 52% of larger companies expect litigation to increase, a result of the economic climate. Of large companies with over $1 billion dollars of revenue, a quarter believe that they will begin more internal investigations. The source of these investigations and increasing litigation stems directly from increased regulations, IP/Patent disputes, and bankruptcy.

This continuing trend in litigation means that companies should enact compliance solutions and litigation preparation to mitigate risk and reduce litigation costs. This is especially underlined by Adams v. Dell (now Adams v. Winbond):

The pivotal issue is when the duty to preserve documents for litigation arises. The parties in Adams agreed with the nearly-universal legal standard -- a person has a duty to preserve documents when that person actually foresees or reasonably should foresee that the documents are relevant to likely or actual litigation. 

Basically, the court held that, given the well-known litigation in the late 1990s involving the floppy disk controllers, and given one defendant’s involvement with the controllers, that party had a duty as early as 1999 to keep documents relevant to the controllers even though the particular defendant was not a party to that litigation. 


What this boils down to is that a legal team has the duty to keep documents once they see that it might be relevant in any litigation within their industry. Pause for a second and think how difficult that would be without the ability to do enterprise-wide search. Think about how ridiculous it would be without being able to place legal hold on those documents once they are found. I've seen a few solutions that can do that...but can't perform the enterprise-wide search in reasonable times. With all the litigation going around, you're likely to keep a lot of the company on legal hold if you aren't able to search through the company.


The trick is to be able to find documents throughout the enterprise (maybe even classifying before they are stored) and to place legal hold on a granular level, on only the document itself. That way, you don't hold everyone's mailbox up, you are able to get storage savings and mailbox management, and you are still compliant with your duty to preserve. 


Think of it like holding onto balloons. If you keep everyone's emails in every relevant inbox, eventually your storage costs balloon and you find your enterprise costs floating away. Choosing which balloons to hold onto (my favorite are the blue ones) is much more manageable and fun. All it would take is a simple search, click, and the legal hold is up. From what I've seen, only ZL can provide those search capabilities. 


 

Deep Sea-Fishing or eDiscovery

Check out this eDiscovery cartoon by Steve Chan posted on The Modern Archivist. Pretty much describes why most ECM solutions can't do effective eDiscovery: the immense number of e-mails in the enterprise. Shark bait--ooh-ha-ha!

De-Duping Data

Yesterday I wrote a little bit about how you can stack DVDs. Well, the next logical challenge here is to reduce the size of data, especially redundant data. According to the same IDC report 75% of the world's data is a copy -- meaning only 25% is unique! Think of all the plastic we could save.

Well, this calls for the ability to get rid of all the replicated data in a process of de-duplication, or what I like to call Single Instance Storaging (SIS). Now, the intracies of SISing over an entire database can be quite cumbersome. Imagine trying to access each database, fileshare, or hard drive over a network. SISing over an archive can also be challenging as well, if solutions do not deploy the right architecture. Because of poor source code, many solutions cannot seamlessly scale one archive to fit an entire Fortune 1000-level corporation.

However, it is necessary to ensure that all the files are stored in one virtual vault, otherwise it is impossible to achieve true SIS. And without true SIS, how do enterprises cut down on that 75%?

True SIS also lends itself to legal concerns; when a legal hold needs to be put in place, in-house counsel can guarantee that there is only one document, and that it is being preserved.

Maricopa Barely Coping

Sheriff Joe Arpaio, one of the most controversial figures in Arizona politics continues his fight against federal authorities wishing to investigate his conduct. And although he has the right to deny them access to his files, they hold about $100 million over his head. If he does decide to turn over his records, I wonder how the authorities will decide what is relevant, and how will they grab them? Will they be able to tell if the Good Sheriff has tampered with them?

Space Travel on DVDs

Get this...according to the latest IDC report, reported by ZDNet, last year the world's digital universe grew by 1.2 million petabytes or 1.2 zettabytes. to give you a feel of what that is, one petabyte is equivalent to a stack of DVDs to the moon and back. Those 1.2 zettabytes of data? They'll easily get you half-way to mars. I get the feeling that soon the whole universe will be in reach, (space shuttles will probably charge more than $50 for that extra bag. I'd pack light.)

While cool, space travel via DVDs is neither here nor there. What it does mean is that all of this data needs to be managed (like setting retention policies...which I'll get to in another post soon), deleted (so we don't have to go Jupiter), held (in case of litigation) and easily searchable (you know, in case you want to find something). Let's take the last case as an example. Google currently has over 21 billion web pages indexed, basically, this is the web.

As an enterprise, why does this matter? Well, large enterprises need to be able to archive and index millions of emails received and sent every day. Big companies can easily reach a million emails a day (if the average user sends/receives only 10 emails and you have 100,000...well). That's over a billion documents every 3 years. And, unlike Google, who can crawl web pages at their leisure and do not get penalized if they miss a page, a true solution will ensure 100% capture of your emails and files. The ability to search through something which is even 1/5 the size of the internet, while ensuring capture (and we're not even talking about files yet) is a necessary part of managing risk and litigation preparation.

This is how CEOs and CFOs stay out of jail, they can prove what they did right (or find employees who violate company policy). Think of BP, and what they've gotta be doing right now to prove that they took the necessary steps and are taking the necessary steps in containing the spill, helping communities, and preventing the same thing from happening elsewhere.

FTW: Pro-eDiscovery For The Win

Check out this recent announcement by the State of Florida. Adam Sand, eDiscovery guru, covers it in this post on The Modern Archivist. He makes some good points on the general direction in which eDiscovery is going, namely that there are more and more sources of data which are being considered to be relevant, and social media sits right on the the same frontier that email and other electronically stored information (ESI) only a few years ago. This relates directly to the Technology Adoption Curve, something I vaguely remember from my days at Wharton: 

• Innovators tend to be more educated and prosperous, with a greater tolerance for risk
• Early adopters are younger, educated, and active in the community
• Early majority are more conservative, but open to new ideas and influential within the community
• Late majority may be older, less educated, conservative, and less socially active
• Laggards are highly conservative, oldest and least educated. They often are less prosperous and more risk averse

In terms of eDiscovery and total information governance, I think we are looking at a major reset in the business over the last few years. Although there have been many point solutions to handle the EDRM model, there have exist few truly all-encompassing solutions that can take a company from the information management side to production and move seamlessly back and forth (please refer to the EDRM model below). The move from Reactive eDiscovery to Proactive eDiscovery has changed the landscape of the business.

What this fundamental reset means is that we've seen a reboot in the Technology Adoption Curve. I believe that we are somewhere in the Innovator/Early Adopter phase for this space, namely because what we are seeing in the market are that companies like Cisco and Wells Fargo actively looking to upgrade their eDiscovery technologies to the best available proactive solutions. These are the same companies that are willing to take the time investment to become educated, and lead their industries in risk management. Once the Innovators and Early Adopters begin to the raise awareness and the government continues to add pressure (see my post on HR 1387 or Steve Chan's post here), we will see enough examples to propel the proactive industry to the real meat of the bell curve. 

Inside legal counsels should be aware that this is the curve of the future. Proactive eDiscovery means being prepared for litigation like companies never had the capability of being before. And we all know that the key to success (and winning) is all in the preparation. Being a laggard is simply too risky.

Pre-Review: One Way to Stop WikiLeaks

Image via WikipediaAs most people have already caught up on the WikiLeaks and Afghan War Diaries affair, I just wanted to quickly point out that this type of data loss can be avoided by using the correct records management software. To tighten the valve on probably the most prevalent and most easily accessible avenue of leakage, e-mail, should be a requirement from any solution. By using an enterprise-wide email and content management solution, companies (or governments) can be sure that offensive e-mails do not leave the company. 

Pre-review functionality allows for policies to be set based on any characteristic of the mail, the number of metadata parameters as well as the contents of an e-mail or attachment. Properly deployed the system can block an e-mail from being sent out of the organization before any damage is done. As an example, if a policy stating that any e-mail or file discussing “Contract X” should not be allowed to leave the company firewall, a policy to this effect will ensure that any e-mail or attachment containing any information related to “Contract X” is blocked at the gateway.  In essence, these e-mails are automatically “flagged” and the compliance officer or the administrator would be informed immediately that there was an attempt to send that content out.  They would then also have the option to allow the e-mail to go through and be sent out, or confirm that it needs to stay blocked. 

Such functionality (hopefully) should be deployed throughout the government, but for some reason I get the feeling that its not. If anyone has more information on how the government, especially defense organizations, does data loss prevention, I'm all ears.