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

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

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

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

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

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



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

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

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

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

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

Facebook Update: Download Your Information

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

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

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

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

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

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

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

Obama Administration and Email Privacy

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

Privacy and Legal Ramifications in the Social Media World

Image via Wikipedia

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


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


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


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

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

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

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


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

Everyone's Heads in the Cloud

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

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

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

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

Oracle Open World --- TBD Later

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

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

Harkabi v. SanDisk Revisited

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