1TERM - One Total Email & Records Manager

A Discontinued Blog

2011-12-27T22:12:00.000-08:00

A farewell from 1TERM for the moment - as my duties no longer allow me the luxury of updating 1TERM as it should be (no post for months now). Any further attempt to create content would just have this blog turn into a corporate mouthpiece - and there is enough of that. So for all who have read this blog - thank you.

I'll see you when I see you.

Autonomy Purchases Iron Mountain's Digital Assets

2011-05-17T16:17:00.000-07:00

In what is regarded as the recognition of their failure to expand into digital records management, Iron Mountain has sold their digital assets - which include Mimosa and Stratify - to Autonomy for $380 million. With 5PB of data under management - Iron Mountain had been a major player in the market to store information. Now, Autonomy will add those to include over 25PBs of data under management in the world's largest private cloud.

Consolidation of the unstructured data market is inevitable (there are just so many niche players) - and with Autonomy having already raised $500 million last year for a purchase - the company is in prime position to capitalize on a number of technically strategic but financially floundering companies.

With the rationalization of the archiving/e-discovery/data storage markets I believe that the few big players left standing will be able to have the economies of scale necessary to efficiently and safely provide business critical processes in the cloud. We have seen that the recent push to move IT infrastructure outside of the corporation to be sustained demand and it will continue to be so for the foreseeable future.

The Cloud is sexy. And ours just got a lot bigger.

E-discovery and Social Media

2011-05-06T06:21:00.000-07:00

I was just reading through this post over at Drug and Device Law and there seems to be no shortage on how people are approaching Social Media. Lawyers (and their 3rd party affiliates) are friending people on Facebook/Twitter/LinkedIn to gain access to potentially relevant information. Everyone is trying to find their footing in this whole new playground of evidence. Of particular interest to me is how people can now download all of their information on Facebook and the increase in rich media as a result:

Another thing that potentially makes plaintiff e-discovery easier – at least from Facebook – is the recent addition of an option by which a user can download to a “zip” file all the material, whether text, videos, or photos, that a user (presumably the plaintiff) has ever placed on his/her page.

This has now opened a new portion of e-discovery - that which can emphasize photographic and video evidence as much as traditional text. 300 million people are on Facebook - and they are on there to share photos and videos. E-discovery will need methods to efficiently cull this data without wasting a lawyer's time (imagine being in the office watching videos of a lifetime's worth of vacations).

Indexing pictures/video is a difficult process and relies on some antique methods of tagging - think how YouTube relies on user categorization. This can lead to significant inaccuracies. Something I've seen recently from Autonomy is the ability to use pattern-matching technologies to build an understanding of content within pictures - a more advanced version of how Facebook suggests tags now in their photo section. The really interesting application of this technology comes in video. Autonomy can use pattern recognition to determine who is in a video - and can do so in real time! E-discovery can not only be reactive, but in-house counsel can now use the same technology to ensure they are litigation ready.

Check out more details from Autonomy here, better yet feel free to reach out to me via LinkedIn here.

Harry Potter Newspapers

2011-04-19T20:03:00.000-07:00

Some image recognition technology is making Harry Potter-like newspapers a reality. Check it out on YouTube here.

The application for this in the advertising realm seems ridiculous to say the least. In terms of e-discovery, image pattern recognition (and video recognition) will be increasingly important as well. For now, enjoy the video and hopefully I'll be back soon as I learn more.

Exploding Data Growth

2011-03-15T15:44:00.001-07:00

The NY Times’ Shelly Podolny ran a recent opinion piece on the growth of information. Particularly troublesome was the cost of information overload which was estimated to be in the “…hundreds of millions of dollars yearly.” According to the NY Times:

The current volume estimate of all electronic information is roughly 1.2 zettabytes, the amount of data that would be generated by everyone in the world posting messages on Twitter continuously for a century… More stunning: 75 percent of the information is duplicative. By 2020, experts estimate that the volume will be 44 times greater than it was in 2009.

And it is in the business world where all of this data is continuously being stockpiled – mainly because doing so seems easier than figuring out what is permissible to delete. There are other costs associated to information hoarding as well, costs like e-discovery which can add up to millions of dollars every year on top of settlements due to it’s prohibitively expensive nature.

As internet usage expands in volume, this problem faces both Wall Street and Main Street:

…it’s not the giants like Google or Amazon or Wall Street investment banks that are responsible for creating the data load on those servers — it’s us. Seventy percent of the digital universe is generated by individuals as we browse, share, and entertain ourselves…

Podolny asserts that no matter what we do, “…improvements in the digital highway usually just lead to more traffic…” But here at ZL we believe that is a fallacy. ZL believes in smarter traffic.

By reducing duplicative information within organizations, storage footprints can be reduced by over 75 percent. Using proven methods like stubbing, single-instancing and SaaS, we believe in a further reduction of IT capital expenditures while preventing the hidden costs of rogue data.

On top of this, ZL can categorize and (most importantly) delete data based upon the content or metadata. This puts real teeth to a retention schedule and means that there is even less information being stored.

Less processing power storing less information means smaller server farms, reduced energy consumption, and a decrease in a corporation’s carbon footprint.

As Podolny asserts, “No one wants to give up the pleasures and benefits that the digital domain provides.” With smart information management, no one will.

The Case against Gmail

2011-02-28T09:55:00.001-08:00

I love Gmail. The features, UI, and integration of this service are second to none. I even use Gmail as my main e-mail client for non-professional use. However, Gmail cannot be used in the business world for one reason: it is not 100% reliable.

Yesterday, Gmail users have been reporting a huge problem – that all of their emails, labels, themes, folders and settings had been erased. According to Google, this may affect .29% of the Google Mail database. Although this seems like a trivial amount (29 out of every 10,000 mailboxes), the loss of any mailboxes at all to a corporation is substantial.

What if one of the lost accounts happens to be a C-level executive or a custodian in an eDiscovery case? I know of no IT or Legal department would want to be traced to that problem. We all know how important e-mail is for day-to-day business. And imagine how indefensible it would be to explain that Google lost all of your evidence. A day after the issue was reported, the Google engineering team is still “investigating”.

According to one blogger cited on HuffPo, “”It is clear from the Gmail forums and Twitter that hundreds if not thousands of people have had their Gmail accounts compromised. A firm believer in the concept of cloud computing, it never occurred to me that my Gmail account could one day disappear.”

Cloud service providers will always have this problem – even Google can’t guarantee everything. You can check the status for the issue on Google’s forum here.

ZL’s Unified Archive will make sure this never happens for any company. While Gmail may lose e-mails forever, ZL’s e-mail archiving allows end-users (or only admins) to restore anything from single messages to entire mailboxes. In the case of user-error or disaster, everything is recoverable.

SAC Capital: Caught in the Act

2011-02-23T14:09:00.001-08:00

According to the Wall Street Journal, two former hedge-fund managers from SAC Capital Advisors have been acting quite suspiciously lately – one even took his computer drives apart with pliers and deposited the left-overs in four different garbage trucks around NYC. In testimony, the offending manager, Donald Longueuil, explained in very colorful language that, “It’s all f—in’ ripped apart. Everything’s gone.”

That is one way to enact a retention policy.

Mr. Longueuil had been reacting to this WSJ article about a federal probe into insider trading. Now, there’s no way to tell how SAC Capital manages their electronic data, but I am sure that no compliance officer is happy when someone is ripping up hard drives by piece.

“When people frantically begin shredding sensitive documents and deleting computer files and smashing flash drives and chasing garbage trucks at 2 a.m. … it is not because they have been operating legitimately,” said Manhattan U.S. Attorney Preet Bharara.

This is a prototypical case of why companies cannot allow end-users to manage the retention of their data – they are allowed to break the law and destroy the evidence. Prosecutors will not be kind to such a poorly governed company. Already the government has been broadening the scope of the investigation into SAC and its partners.

In this case specifically, SAC Capital could have benefitted from e-mail and file archiving to ensure that they keep a copy of all business-relevant data from their computers. With this information they could have proven Mr. Longueuil to be an isolated manager who went off the reservation. Instead, they will be at the center of an expanded federal investigation.

Sarah Palin Needs E-mail Archiving

2011-01-31T10:21:00.001-08:00

Over 2 Years and Waiting

Alaska now has only a few months to release 25,000 pages of e-mails from former half-term Governor Sarah Palin and her administration. So far, Alaska has taken over 986 days to collect and review records from the Palin administration that was in office for only 966 days, or just over 2.5 years.

The Delays with Finding E-mails

Alaska attorney general John Burns granted the 15^th requested extension, but assured everyone that the new deadline is “firm.” He explained the reason for the delays: “The Governor’s Office has responded to several other very broad requests for Governor Palin’s emails, including eight requests that required review of over 25,000 pages. Due to limitations of the state’s email system, just collecting the email records responsive to those requests took several months.” [Emphasis added]

In addition to the incredible number of delays and extensions (15 extensions may be a record for FOIA requests), the governor’s office is asking those that request the records to pay for their production. And the price isn’t trivial. According to MSNBC, it will cost over $15 million dollars to get the documents. Here is their breakdown:

Let’s look at a typical request. When the Associated Press asked for all state e-mails sent to the governor’s husband, Todd Palin, her office said it would take up to six hours of a programmer’s time to assemble the e-mail of just a single state employee, then another two hours for “security” checks, and finally five hours to search the e-mail for whatever word or topic the requestor is seeking. At $73.87 an hour, that’s $960.31 for a single e-mail account. And there are 16,000 full-time state employees. The cost quoted to the AP: $15,364,960. (And that’s not including the copying costs since they apparently have to print all documents in hard copy, review and then copy them for production).

This is appalling and frankly way out of line with typical e-discovery costs. In fact, I am sure that the judges and e-discovery experts who drafted the Judge’s Guide to Cost-Effective E-Discovery would reject these cost estimates out of hand. Alaska and other state governments should already be prepared to answer similar Freedom of Information Act (FOIA) requests in a responsible and timely manner. To take over 2 years and charging millions of dollars undermines the concept of a transparent government. And if it is true that the delays are brought on by the state’s inefficient IT infrastructure, then they need to talk to ZL.

ZL’s Unified Archive as the Solution

Using ZL’s Unified Archive, Alaska (or any other government agency) can search, find, and review e-mails from one platform in minutes. Citizens and journalist will no longer have to wait years or be charged millions for access to information that should be readily available to them. They will be better able to hold their state governments accountable. And a government accountable to its citizens will benefit everyone.

2010: A Year In Review

2010-12-28T09:00:00.000-08:00

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

2010-12-17T15:06:00.000-08:00

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:

Communications pertaining to the expert's compensation.
Facts or data that the attorney provided and the expert considered in forming opinions.
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

2010-12-08T17:34:00.001-08:00

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

2010-11-04T15:49:00.000-07:00

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

2010-10-25T07:19:00.000-07:00

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

2010-10-19T16:33:00.000-07:00

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

2010-10-13T07:56:00.000-07:00

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

2010-10-12T14:50:00.000-07:00

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

2010-10-06T13:00:00.000-07:00

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

2010-10-04T12:27:00.000-07:00

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

2010-09-30T14:34:00.000-07:00

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

2010-09-27T11:36:00.000-07:00

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

2010-09-22T09:16:00.000-07:00

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

2010-09-16T15:12:00.000-07:00

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

2010-09-15T13:42:00.000-07:00

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

2010-09-14T11:02:00.000-07:00

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

2010-09-13T13:11:00.000-07:00

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

2010-09-07T14:49:00.000-07:00

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.

Departing Employees and the Importance of Saving Their ESI

2010-09-03T11:09:00.000-07:00

This is one of my posts up on TMA that I thought would be interesting to revisit due to the high unemployment rates we've been seeing. It seems like there are probably a lot of job losses out there (10% is a lot of unemployed) and companies should be prepared in processing employee data correctly. The consequences of not doing so can be stiff indeed. Read below for more:

Virginia Henschel of Lexis Nexis wrote an interesting piece on the perverse logic of the New Hampshire Attorney General’s Office ESI (non)retention policy. She is right that government agencies can’t just delete their departed employees’ ESI. Private corporations can’t hide their heads in the sand either.

Although there are too many examples of sanctions for failing to preserve departed employees’ ESI for just one blog post, I must point out that in May, FINRA fined Piper Jaffray $700,000 for email retention failures and disclosure violations. And this wasn’t Piper Jaffray’s first time through the wringer. Back in December of 2002, leading investment houses including Goldman Sachs, Morgan Stanley, Deutsche Bank, and Piper Jaffray failed to preserve e-mail and were fined a total of $8.25M . As FINRA reports on Piper Jaffray (emphasis mine):

FINRA discovered Piper Jaffray’s continuing email retention deficiencies when its investigators requested all emails sent or received by a former firm employee suspected of misconduct…When reviewing the CD-ROM’s contents, however, FINRA discovered that one particular email was not producedthat investigators had already obtained in hard copy form…Only after further inquiries about that missing email did the firm finally inform FINRA of the intermittent email retention and retrieval issues it had been experiencing firmwide…

It is clear that retaining departed employees’ ESI is an essential component of any good enterprise-wide records management, compliance and eDiscovery system. Employees leaving the company present a formidable compliance challenge for companies and government agencies. Many companies mistakenly rely on their IT departments to save the hard-drives of the departing employees as well as the departing employee’s mailbox and network drive ESI. Not only does this waste corporate resources (do you really need all that data? for how long?), it is also creates increased legal and compliance risk.

I believe that a robust file and e-mail archiving system is needed to ensure 100% capture and storage of this type of ESI. This system must be customizable so that an organization can consider legal and economic factors to ensure that information is retained as long as necessary, but no longer. Just because ESI can be deleted at the click of a button does not mean you aren’t responsible for it. Many will learn this lesson the hard way, while the ones who are prepared will save significant time and money.

Harkabi v. SanDisk

2010-09-01T10:42:00.000-07:00

In an interesting motion released last week in Harkabi v. SanDisk, Judge William H. Pauley has done a pretty good job outlining the considerations of balancing e-Discovery cost and thoroughness.

In essence, during the case SanDisk chose to play dumb (or lazy) and did not produce all relevant evidence, despite admitting that they had some specific pieces, resulting in their negligence. As Pauley quotes, "A failure to conform to this standard is negligence even if it results from a pure heart and an empty head."

Yet, interestingly, the judge gives little leeway to SanDisk because it is a technology firm. "Its size and cutting-edge technology raises an expectation of competence in maintaining its own electronic records. The concatenation of omissions and missteps at SanDisk reveal a lack of attention to detail that has worked a hardship on the Plaintiffs and delayed this litigation."

Because SanDisk could not locate certain files or images from the hard drives of the custodians (in this case, the plaintiff's own hard drives), they were found to be "At minimum, [they] SanDisk was negligent...The undisputed facts reveal a cascade of errors, each relatively minor, which aggregated to a significant discovery failure."

I'm sure it is this kind of embarassing failure which legal teams must look to avoid (in addition to the sanctions, a mere $150,000 in this case).

Dead End: Hold On! Theres a hole in your case...

2010-08-30T15:13:00.000-07:00

Over at Practical e-Discovery, they point to the recent ruling in Siani v. State Univ. of New York, 2010 as being critical in the e-Discovery space. To understand why, let us start at crux of the problem: when do organizations have a duty to preserve data?

Is it forever? Or when there is reasonable suspicion of an upcoming case? Does the pre-suit duty to preserve begin by just a letter by a putative plaintiff which even contemplates a suit? Or perhaps when the suit hits? Without a definitive landmark, it is impossible for organizations and legal teams to plan for litigation. And in a world which runs on dependable schedules and efficiency, that means costly and protracted reaction.

Siani relies upon the the work-product doctrine, which encompasses documents that are prepared “in anticipation of litigation.” As Practical e-Discovery mentions, Siani v. State Univ. of New York reached the reasonable conclusion, 'that if litigation was reasonably foreseeable for one purpose, “it was reasonably foreseeable for all purposes."' Which means that the duty to preserve begins with the creation of any work-product.

The work-product doctrine slices both ways, since by invoking it for protection means that to the organization, litigation was reasonably anticipated and the duty to preserve had been triggered at that point. Again, this translates into the fact that the beginning of the work-product immunity should be the beginning of related electronically stored information (ESI) on legal hold.

In effect, companies must enact legal hold the moment in which documents are prepared in anticipation of litigation. There is no way to do so without a proactive archiving and e-Discovery tool already in place, because otherwise there would be reliance on the custodian (potentially those involved) to retain their own (potentially incriminating) documents. And as we have seen in Adams v. Dell, there continues to be a large question in custodian-trusted legal hold.

As more and more of these cases evolve, organizations must focus on proactive e-Discovery.

Across the Pond: Painful Regulation Exists as Well

2010-08-27T12:55:00.000-07:00

Yesterday, Zurich Insurance was fined roughly $3.5 million dollars because a back-up tape containing unencrypted personal details of 46,000 policy holders went missing in transit. This is what happens when you rely on purely physical back-up to store sensitive data. The worst part is that Zurich did not even know they had lost the back-up tape for over a year!

You cannot outsource truly sensitive data this way and expect it to be defensible. As EDD Blog Online points out: The UK "...found that the insurer had failed to take reasonable care to ensure it had effective systems and controls to manage the risks relating to the security of customer data resulting from the outsourcing arrangement." And I completely agree. Zurich, specifically their IT, Compliance, and Risk Management policies, should be reviewed to ensure that their data is kept safe.

There are enough people out their trying to scam their way to stealing our identities (see Nigerian Scam), without insurance and credit card companies literally losing them. Let's try to act a little responsibly without having to have the government mommy us. Companies with sensitive data (which is pretty much every company) need to archive their data in-house.

I can't believe this actually happened.

Syncing IT with Knowledge Management

2010-08-27T12:39:00.000-07:00

I want to simplify the issue today, so let's keep it short:

The creation of knowledge and ideas within an organization has been streamlined in the last few years, especially with the development of traditional social media, email, mobile devices, and even internal social media. These outlets make it easy for employees to publish their ideas, but the challenge to leverage this knowledge is to deliver this information to the correct people.

With a full ZL deployment, large enterprises can allow their employees to have privileged based access to enterprise information, allowing employees to find the information they need to get their work done. And that's it.

Congress to Everyone: More Lawsuits!

2010-08-26T07:28:00.000-07:00

Here's a preview of a post I'll be putting up on The Modern Archivist in the next couple of days. Shoot me your thoughts!

---

In 2007 and 2008 the Supreme Court made two rulings the plaintiff's bar could not stomach, Ashcroft v. Iqbal and Bell Atlantic v. Twombly. Lisa Rickard from Townhall.com interprets the two cases stating the Supreme Court aimed to establish that "plaintiffs should not sue someone and subject a defendant to the costs and burdens of litigation if there is no plausible basis for their claims." Seems pretty reasonable.

But last November, Representative Jerrold Nadler from New York, introduced H.R. 4115: Open Access to Courts Act of 2009. The law:

Prohibits a U.S. district court from dismissing a complaint: (1) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief; or (2) on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or are insufficient to warrant a reasonable interference that the defendant is liable for the misconduct alleged.

In effect, Mr. Nadler aims to open the floodgates of litigation by imposing the burden on the defendant to prove "...beyond doubt that the plaintiff can prove no set of facts in support of the claim..." In an era of ever increasing litigation, with docket's backed up for years, frivolous lawsuits around every corner, and with people even suing themselves...it may be wise to continue to use a judge's discretion when there exists no plausible basis in a case.

Should the law pass, there would be no barrier to entry for potential litigation. The average person could play the Lawsuit Lottery: posting frivolous lawsuits until a corporation settles under the weight of potential discovery. Perhaps, if plaintiffs were penalized with the cost of litigation in the event they lose, the liability would give them adequate exposure to litigation risk and mitigate frivolous lawsuits. But the way the system is right now, H.R. 4115 will only exacerbate an already cramped situation.

Privileges: Not Just for CEOs

2010-08-25T08:37:00.001-07:00

Once an Enterprise Content Management system is implemented, it is important to be able to restrict or grant privileges based on an employee’s role in the company. Like we discussed previously, it is important to share and leverage knowledge with a company, but it is also vital to keep sensitive information from leaking.

Imagine you are an investment bank. Now think about a first-year desk jockey you just hired. As a firm, you want him to learn as much as possible, but when he performs an enterprise-wide search, should Lloyd Blankfein's emails show up? Probably not. And the opposite is true as well; it is important for managers, lawyers, C-levels, and compliance officers to be able to access data across the enterprise.

In this case, low-level or divisional employees need to be restricted in both horizontal and vertical access to data. Without a system to enforce privilege levels on a granular level, an ECM solution will be inherently useless. If there is a checkbox item to include whenever evaluating an ECM solution, this would be a vital one to include.

I'm not sure about everyone else, but ZL's Unified Archive allows you to use your Active Directory from Exchange, the store of information defining the organization virtually, to assign roles and privileges across the enterprise. ZL ensures that you control who can have access to the right data.

KM Value

2010-08-24T13:16:00.000-07:00

Yesterday I introduced Knowledge Management (KM) as a value-addition to a company and the necessary Enterprise Content Management (ECM) which would be the back bone of such a system. Before I get into the weeds, I wanted to step back and clarify why companies find value in KM.

As the United States has progressed, our economy has began to rely more on intellectual capital than manufacturing. Simply, our nation's competitive advantage lies in the minds of our people rather than the manual labor they might perform. In parallel, a company's market value has become increasingly dependent upon the value of its intellectual capital or intangible assets. Intellectual property, patents, certifications, and training have become cornerstones of the modern company because a company's competitive advantage relies on the ability to create and leverage this knowledge. This forms the foundation of modern knowledge management philosophy.This reasoning touches every part of the corporation from human capital management to IT.

One overwhelming example of the KM impact lies in organizational design. To fully leverage knowledge, a corporation much establish the appropriate KM functions, units and responsibilities within an organization. They must also align the reporting structure to acknowledge key tacit knowledge flows, build cross-functional/office teams, and develop support networks/communities to spawn and catch knowledge. I will be posting more on how companies can take each of these steps in subsequent posts.

The most relevant idea comes alive when you think about a simple case: a key employee departure. In addition to losing the services of this employee, the company also loses:

All tacit knowledge the employee has gained
All networks the employee has built
All explicit knowledge the employee kept personally

The idea of a true knowledge management system would be to introduce systems of redundancy which allow the company to minimize the risk of knowledge loss (in this case) AND to maximize the opportunity of knowledge creation (in other cases).

The backbone of this ability for a company is a true enterprise content management system which will ensure that (at the very least) all explicit knowledge be kept in house where other can access the data. Such an application could also facilitate knowledge creation by, for instance, allowing employees to find experts within a company by performing enterprise-level searches. (There are some mitigating factors, such as employee privileges, which I will explore in a later post)

I'll continue to visit Knowledge Management throughout this week. If you have any specific questions, don't hesitate to let me know.

You Don't Know Jack: The Titanic, Deck Chairs, and Knowledge Management

2010-08-23T13:21:00.000-07:00

According to Wikipedia the definition of knowledge management (KM) is as follows:

[KM] comprises a range of strategies and practices used in an organization to identify, create, represent, distribute, and enable adoption of insights and experiences. Such insights and experiences comprise knowledge, either embodied in individuals or embedded in organizational processes or practice.

The foundation for KM has been laid in the early 1990s as the market has seen more value in what an organization knows, than what they create. KM has thus been garnering more and more attention from management academics and corporations ever since.
There are generally two types of knowledge within an organization: tacit and explicit knowledge. Tacit knowledge is the type of knowledge which is hard to pass one, the internal store of information which make it nearly impossible to become a great master of an art without studying beneath one for years. Explicit knowledge pertains to all of the information which can be written down and expressed easily through communication, i.e. the location of Arizona.

In a similar vein, it is important not only to capture information, but to know the location of your knowledge. In large organizations (or even smaller ones) there can be many cracks through which vital information seeps, such as a departing employee or infrastructure failures. What companies should look for is a solution which enables employees to find what they are looking for so that they can do their jobs.

To enable this to happen, there must be a function of enterprise-wide search throughout the company, since relevant documents can be anywhere in a growing era of mobility (think about your iPad, iTouch, blackberry, laptop, home computer, file servers and work desktop). Without the ability to search through anywhere they store data, the ability for employees to access the store of knowledge which the company has built will be limited. And what's the point of knowing something if you can't use it?

Many of the best companies know this, and as Wikipedia says:

Organizations and business decision makers spend a great deal of resources and make significant investments in the latest technology, systems and infrastructure to support knowledge management. It is imperative that these investments are validated properly, made wisely and that the most appropriate technologies and software tools are selected or combined to facilitate knowledge management.

The challenge in enterprise-wide search is the ability to return results in time. Many solutions take weeks or time-out when searching, especially through email (because of the mailbox oriented design of many companies). ZL Unified Archive's competitive advantage is its search speed, in once instance it has searched through over 3 billion documents in a global deployment in a little over 1 minute and continues to do so to this day. In choosing a solution, and making sure it is "validated properly" I'd challenge someone to do it faster, more precisely and on such a scale.

The other challenge of KM, is the ability to turn tacit knowledge into explicit knowledge. Personally, I follow the iceberg model. Most of a corporation's knowledge lays underwater as tacit knowledge. However, large corporations need to make this as explicit as possible, and an effective enterprise content management system is the first step in doing this. Without the ability to capture what you know, you will never learn. If you stop learning, you're dead in the water. And you don't want to be rearranging chairs on your corporate Titanic in these waters.

Death to Management!

2010-08-22T11:27:00.000-07:00

Just wanted to quickly pop in and share this with you all:

According to the WSJ, it is the End of Management as we know it. However, common management knowledge already acknowledges that there's a role inside large corporations for what they are talking about i.e. 'acting like a venture capitalist'. Yet, this is not going to work everywhere. WSJ extrapolating to make sensational headlines. In reality this just reflects shifting ways to manage people, which is, dare I say, still management.

I'll be writing a follow-up on knowledge management as it relates to content management in a little bit. Very interesting stuff! Have a great weekend.

Going Up: Balloons and Litigation

2010-08-19T10:12:00.000-07:00

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

2010-08-18T15:43:00.000-07:00

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

2010-08-18T06:47:00.000-07:00

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

2010-08-17T20:51:00.000-07:00

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

2010-08-17T18:22:00.000-07:00

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

2010-08-17T09:37:00.000-07:00

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

2010-08-16T09:52:00.000-07:00

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.

Manual Search...Meet Google

2010-08-13T14:01:00.000-07:00

On John Wang's Grokify Blog he states:

Manual ICP is a slow process that increases information risk and can lead to under collection, late collection, and spoliation. On the other hand, automatic collection can enable ECA, fast collection, and Matter-based ICP. There is no question that automated collection holds advantages over manual ICP. Given the risks associated with Manual ICP, the courts and industry thought leaders are correct to ask if manual collections are still relevant and defensible.

Now, there is no doubt that manual collection for eDiscovery is slow and unwieldy. eDiscovery 2.0 concedes the point here, yet they rage on:

While there’s no dispute that the “automated” collection methods available in litigation software referenced above have a number of features that make this approach more efficient, the question is whether a “manual” (i.e., custodian based) collection process is somehow less defensible. If this is truly the case, then many midsized companies without the budget to purchase such e-discovery applications will inherently be found deficient – which is a daunting notion.

There is clearly a fundamental misunderstanding here. Mid-sized companies, with their mid-sized amount of employees will pay mid-sized licensing fees for automated collection, eDiscovery and records management software. The proportion they pay scales linearly (both up and down) with the size of their company.

And the pricing tangent misses the point entirely, which is that a combination of automatic and manual collection will be the most thorough method of eDiscovery. Having the ability to automatically collect documents will be necessary in the near future (if not right now). Without enterprise-wide search and automatic collection, it is like searching the web without Google. Instead, with only manual collection, you would be starting at a website and clicking link to link or typing in random URLs until you find the right site. How thorough is that?

That Sinking Feeling

2010-08-13T09:34:00.000-07:00

I posted this on my personal blog today as well, but I figure its actually more applicable here: Its not only municipalities or cities or even the federal government who have zero control over their data. It's the military as well!

Can you imagine not being able to locate OR destroy classified and sensitive documents? Leaving emails and files tucked away in nooks and crannies of an enormous industrial complex spread over the world with a million employees is no way to do business, much less organize a war. Vital pieces of information can get lost or fall into the wrong hands. Legacy data can be kept...forever. E-mail is never captured and left up to end-users to keep as records (as they see fit). Retention policies are not enforced by any tool, but are trusted to end-users.

This system basically lends itself to failure at the hands of each soldier. How can anyone see this as being logical to our national security? Well apparently the Navy does.

This is why we need H.R. 1387 - the Electronic Message Preservation Act - which would force government bodies to take their information governance into the 21st century. It is now up to a vote in the Senate, and I'm telling you to walk...no, run to your senator's office. It's our nation, our information, let's protect it.

---

Also check out Stephen A. Arnold's post in his Beyond Search blog which explores a recent TREC study on enterprise-wide search. They key take-away here is that companies (and the government!) cannot solely depend on custodian-based search when litigation or investigation arises.

When investigations in the military can take years, like the heart-breaking case of Pat Tillman which has taken over 2 years, it is vital to be able to keep your electronic ducks in a row. Yet, the government and many corporations do not find a need to do so.

Basically, to do a thorough investigation someone might have to look through an entire corpse of enterprise data (or at least very large and relevant sets). Is that really a surprise?

Welcome to 1TERM

2010-08-13T09:14:00.000-07:00

Welcome to 1TERM, my personal Email Archiving, Records Managment and eDiscovery blog. Together we will explore the exponential expansion of data and how best to manage that within an enterprise-size organization. Be sure to check out the other blogs I contribute to, including The Modern Archivist, for more information.