What does the “P” stand for in this abbreviation for a Management Office?  Does the LPMO control governance for projects, does it direct strategy under the guidance of the CIO for Legal and Compliance, it may oversee a program of work, or does it operate at an enterprise level?  To define, ask:

1.  Do the key people in my organization agree that an LPMO is required?

a.  Agree on authority of the LPMO.

b.  Articulate the benefits of introducing the LPMO.

2.  Are our processes mature enough for us to capture the value of an LPMO, and to make the long-term commitment required for success?

Establishing a Legal Project Management Office (LPMO)

Establishing an LPMO may start with introducing the concept to the CIO, and to key stakeholders in Legal and Compliance.  A first step in evaluating the maturity of a legal organization in supporting an LPMO may be to conduct a survey or assessment of the current state.  This will establish a baseline within the legal organization that the CIO and top legal executives may use to evaluate where and how best to mature specific legal processes where risk is greatest, or ROI may be realized.

In addition to talent and ability to achieve results identified by an LPMO, the organization needs to have the drive and commitment to introduce the LPMO and support its efforts to integrate across Legal, IT, Records, Compliance and other business units.  If support is not there, then it is time to stope and focus on supporting and managing programs and projects.

Generally, organizational change transitions can either be quick and painful, or slow and relatively painless. Management buy-in is fundamental to success. Both approaches to the speed of change (fast or slow) have pros and cons; we have seen that taking an aggressive approach and ‘pushing hard’ can reap rewards, but requires a strong commitment to succeed.

After completing your project charter, having peer-level reviews and gaining the necessary support and alliances to make it a success, step back and take a good look at the approach and the desired end result.  Depending on your organization size ask yourself if the launch strategy is accepatable.  Whatever your plan, be sure that the C-level executives agree to it for the long term. We suggest that you are conservative in your proposed results and set realistic goals, timelines, savings, productivity improvements, etc.

Look for, achieve and communicate early, quick wins as the LPMO starts to make changes, even if they are minor.  Any positive changes are building blocks which will fuel project momentum and sustain interest.  Do not oversell.

There will be lulls in the project – stick with it.  As with most projects and project teams, there may be initial enthusiasm but as the newness wears off and the work really begins there will be a drop in morale.  As Team Lead, this is the time to step up your game, to drive work efforts and whip up morale and project support.  Keep up the positive vibe.  Setting up an LPMO is a big challenge; it takes time.  The period most likely to require attention is during the lull period between the times during which you’ve completed, documented, and communicated your early wins or short-term goals, and the commencement of achieving the long-term objectives for your LPMO.

If the LPMO is up and working, it is time to declare success.  You have documented processes, common metrics, basic standards, common tools, a central repository, training packages, and are seeing visible improvements in workflow, project estimates, information usage, greater compliance with prescribe procedures, etc.  It is time to reflect – to review project schedules and budget outcomes, project phase as part of governance, lessons shared and learnt, and stakeholders are pleased with results.

Recognize when to decide if the LPMO is “as good as it gets” and is part and parcel of the operation.  If it is then you can declare success, and consider whether to take the next step of advancing the LPMO to the next level.

Implementing a Successful Legal Project Management Office (LPMO)

One of the top differentiators of success is how well an LPMO is embedded within an organization.  These four factors are key in determining the integration level:

1.  Collaboration: The LPMO should encourage collaboration between project professionals and functional departments.

2.  Recognition of Expertise:  Do the project professionals working with the LPMO improve the level of respect project management achieves within the organization?  This should also influence who works in the LPMO.

3.  The Mission is Well Understood:  Do those outside the LPMO know its purpose?

4.  Support from Upper Management:  Is there an executive champion who will not only communicate the mission, but will work to gain engagement from stakeholders?

Visibility into the overall legal hold process is the key to managing preservation efforts.  Intelligent technologies offer dashboard views based on role and responsibility, and offer content which may help balance staff, acknowledge compliance, charge back to business units, or optimize data management by updating mapping or personnel information.  Systems should provide exception handling views to quickly pinpoint issues of non-compliance or information absence.

The legal team involved in the hold process need to be able to easily set reminder intervals, response requirements, offer definitions, time periods for compliance, and escalation paths for noncompliance.  Templates should be utilized to streamline communication – headers, footers, selectable text to insert in message body may eliminate repetitive typing and provide consistency in messaging across matters.  Automated technology used for legal hold should allow for personalization for a custodian arch-type.  Additional information that should fill in should include the custodian’s name, matter, due date, responsible attorney/contact, and other routine information.  Noncompliance tracking is a significant feature that should not be overlooked when moving from manual hold tracking to automation.

Making custodians (including IT and other business managers) aware of legal hold duties has become a critical component in this process.  This is particularly true for custodians who may be involved in more than one hold, more than one matter.  Dashboards which allow employees to view which holds, which matters they are involved in are becoming more popular.  This is something to consider as a feature in any technology purchase – what types of role-based dashboards may be deployed, and what information is tracked/viewed in each type of dashboard.

IT is a critical stakeholder in ensuring that legal obligations for information are ultimately addressed.  How does the technology present legal holds, collection requests, and retention schedules to IT?  Is there a separate interface for IT – coordinating IT discovery activities?  How does the system present legal instructions to the stakeholders and process managers?  It is by due date, system, data area, business unit, custodian level, etc.  This information in any automated system should be configurable per matter or data location.  Is it important to delineate the information and hold by company system, country/location, business unit or location?  Also consider accessibility, data formats, discovery and preservation capacity, privacy and IP capabilities, and any related governance attributes required when selecting and configuring legal hold technology.

Finally, you need to be able to maintain and update a library of laws and regulations that dictate legal requirements for data, including privacy and data protection laws, discovery rules, and retention laws.  Internal protocols on specific discovery handling procedures for matters.

Still, no single technology meets all of the information and ediscovery requirements in a single solution.  Therefore until there truly is a one platform solution, we will continue to move data between a content and archiving solution, search tool, and preservation and collection tool.  The challenge here is to move the data as little as possible from the point of identification and preservation until such time as collection is required.

Eliminating PSTs in eDiscovery

One of the most challenging aspects of eMail acquisition and evaluation in ediscovery is the dreaded PST.  One of the most valuable features of content archiving systems is the potential to eliminate the PST.  These personal email archives are expensive to collect and search because they contain so much content, and are therefore expensive to review.  PST files do not offer any single instance storage or deduplication in themselves, and therefore special technology must be used to address duplication.

Microsoft Outlook PST files are files that end users often create as private email archives on their desktop hard drives, or external media.  These files are easily corrupted and take up storage space.  They exist outside the control of a centralized archive, and records management policies, therefore are challenging to manage and secure.

Benefits of Email Archiving

The eliminate of PST files is a best practices.  Archives eliminate the need for end users to use a PST by removing mailbox quotas.  Mailbox quotas are typically storage limits placed on end users by IT to control storage costs.  In virtually every corporate environment quotas for high level executives may be different than that of others, therefore archiving helps to streamline email storage as well as how much email is retained regardless of title and position.  Quotas tend to drive users to backup their own systems, including email.  Therefore moving to archiving helps to eliminate these underground, personal backup systems.

Some archiving systems have the ability to crawl the network and to move PST files into the archive.  As these files are brought into the archive they are indexed, single instanced, compressed and assigned a retention policy.  The original PST file is deleted.  Centralization of unstructured content in the archive reduces the cost and risk of ediscovery by giving Legal and IT one central location to search for email and attachments.

Legal team users have the ability to access and search this archive to investigate this content early on – to view custodians, keywords, file types, associations and relations, or date ranges.  This early analysis capability may be just what a legal team needs to prepare their initial legal strategy.  Another benefit of archiving systems used in ediscovery search is this indexed information may be supported by audited workflows for the preservation, review and marking of “potentially relevant” information.

Content Management – Structured Information

ECM systems typically allow for organizations to manage content from sources such as customer relationship management applications, document management systems, enterprise portals, and enterprise resources according to business rules or pre-defined workflows.

Integrating information management with content management enables users to perform in-place retention management of unstructured or semi-structured information, such as e-mail stored in an archive.  E-mail and attachments are declared as records based on business rules applied, and are then managed within the archive.  Understanding the business rules and what are business records of the organization will help the Legal Team more efficiently respond to ediscovery requests.

Search and Collection Tools

Archiving systems manage the collection process for electronically stored information, while ediscovery requests may extend to include data that exists in a live environment that has not yet been subject to retention policies.  A spreadsheet a users has open in use on her desktop is a good example of this.

A growing number of information management systems support integration with search and collection tools to allow desktop (active space) acquisition of files.  Some archives allow this information to be imported into the “archive” or preservation space where additional analysis may be applied.  Again the objective is to properly preserve information/content according to ediscovery or compliance requirements but to create a single repository of information which may be effectively searched; where data retention, expiration, preservation and discovery of structured, semi-structured, and unstructured data may be searched as one collection.  Data centralization enhances chain of custody reporting and decreases the risk of errors by reducing or eliminating manual processes for desktop collection, retention, and expiry.

Incorporating Analytic Tools

The ability to deploy advanced analytics tools within archives is improving dramatically.  This allows organizations to quickly conduct an initial search and review of the archive (or to pull in data to the archive) for richer data searching that better identifies potentially responsive content for a litigation request or an internal investigation.  This information may then be treated accordingly – preserved, or processed for review and exchange.

Review Technology Advances

Review technologies are changing rapidly.  It is no longer cost effective to linear review every single document in a collection, and it is no longer possible to do so without growing old in the process.  Therefore technologies (and courts) are embracing and incorporating advanced analytics which “predict” based on inputted criteria and extrapolation what documents best meet that criteria.  Technology assisted review (TAR) or predictive coding is the future of review technology and the process that will be employed in document review.

Collaborative Content Review and Management – Pre and Post-Discovery

Review is a short period of time in the discovery lifecycle – it is intense, but brief.  Integrated case management is the collaborative piece that is still missing in really managing and using ediscovery content  – a client- or matter-centric structure that incorporates all content as searchable information, including pleadings, fact memos, interviews, deposition testimony, exhibits, timelines, communications, people, work schedules, etc.  This is the body of content legal teams readily need to work with, pre- and post-discovery, to effectively pursue legal strategy.  Microsoft Sharepoint and other technologies are beginning to fill this void.

-        Archiving solutions provide a long-term indexed repository for the storage of electronic information. Particularly unstructured or semi-structured data such as email and instant messages.

-        Archiving solutions provide for the consistent and routine collection of information to address legal and regulatory requirements for document retention.

-        Archiving solutions can be leveraged to support early case assessments.

-        Enterprise content management systems are being expanded to address all forms of electronic content, both structured and unstructured – this may aid ediscovery going forward.

-        Establishing a successful retention policy is a multistep process that is critical in helping organizations address FRCP requirements.

All businesses, regardless of size, location or market require and use content-documents, publications, and other information-throughout the day.   As volume and complexity of content increases, so does the need to manage and classify that information.  Enterprise Content Management solutions must support five key stages of the life of content:  Creation and Capture, Collaboration and Review, Integration and Optimization, and Experience and Consumption.  These categories site on top of Records Retention and Archiving to meet electronic discovery and preservation requirements.

Organizations extend core components – document management, records management, document-centric workflow, content archiving, imaging and application integration – through ECM extensions to support enhanced collaboration and digital content management, reporting and analytics, ERP solutions, portal integration, and rich application layering.

The point of content is to empower end-users, allow for business agility, and of course control costs and risks.

Managing information is becoming more complex.  Corporations are just beginning to get interested in the concept of “information governance.”  It is a term used to describe “the collection of decision rights, processes, standards, policies and technologies required to manage, maintain and exploit information as an enterprise resource.”  Businesses that rely on information and innovation, technology development, patents, regulated products, and creative arts must protect this core information as assets.  Organizations exploring an information governance strategy are seeking to guide how managers make decisions about content stewardship.  Organizational technology and business objectives are aligned and articulated to employees, key players, decision makers and external stakeholders.

eDiscovery is a component of an information governance program.  Content-centric best practices help meet compliance and risk mitigation mandates imposed by law, regulators, or internal quality standards.  Enterprise Content Management systems are getting better at incorporating ediscovery as a content-centric process to govern preservation and discovery collection, while balancing the needs of consumers and creators of that content.  Preparing for ediscovery may have the added benefit of valuing content – preparing internal inventories of electronic content, understanding the sources of content creation and consumption, deploying systems to capture business records, etc.  These activities may help streamline content flow, and offer opportunity to evaluate information for bottom line compliance, including ediscovery obligations.

To begin an information governance program corporations must ask themselves:

-Where to start?

-How do we articulate and execute a strategy for our own enterprise content?

-What are our fundamentals?

-How can we address the fundamentals?

-How do we balance regulatory compliance pressures against productivity?

-What are the right change management and technology improvements needed here?

-What are the demonstrable, tangible savings?

eDiscovery is a significant component of an information governance program simply because this process generates so much content that must be managed.  The challenges surrounding enterprise content management are ever abundant – ever increasing volumes of information, fractured systems, intellectual property, merger and acquisitions – all these result in disconnected IT systems and generate business records that may have value for a period of time.  Further most IT and business systems are ill equipped with effective search capability to identify content for compliance or ediscovery which makes managing content that much more challenging.

Centralization of eDiscovery  Efforts

Legal hold is the start of a long process; it is the suspension of any regular schedule of processing data such as email deletion or tape recycling.  Legal hold may mean anticipated litigation, an employee matter, a forthcoming audit, a governmental investigation or other legal-related matters.  Legal holds affect normal business procedures that deal with active and inactive data, and this process deserves careful attention and planning.

Technology has advanced to the point that system administrators and forensic technicians may use over-the-web tools to acquire information remotely from systems and desktops halfway around the country or the world.  Remote holds are gaining momentum – the ability to deploy a hold over select repositories, shares, custodians, folder structures, or even specific document types.  Acquiring less than a pedabyte of information or more and placing that under hold is challenging and a significant undertaking that requires planning, resource coordination and good information tracking.

Enterprise Content Management systems are beginning to incorporate some ediscovery capabilities to address this need.  Litigation holds are becoming easier to automate, roll out, administer, and manage from a central location.  Some platforms are beginning to address delivery and acknowledgement of the preservation hold notice itself, and periodic reminders required to stay vigilant throughout the matter’s life.  These platforms are beginning to address not only preservation, but also collection and hold in place needs.

Litigation Readiness

Readiness continues to be a challenging area to address for most corporate organizations.  Before taking on litigation readiness within an organization, you must first address document retention policy – creation, identification, retention, retrieval and destruction of records, including electronically stored information and paper.  Having a retention policy is not sufficient.  Control over the systems and environment, how and when employees access/use the information, and what is maintained as business records of value, or maintained as intellectual property or kept for security reasons, is a complex challenge.

Litigation hold is a component of a solid document retention policy.  The objective of a structured litigation hold business process is to avoid sanctions under the Federal Rules of Civil Procedure, and to meet discovery obligations in a timely manner.  You efficiently meet your discovery obligations by having a reasonable plan for implementing a litigation hold based on the following steps:

1.  An operating retention plan and triggers to identify foreseeable litigation

2.  The ability to suspend destruction of relevant information

3.  A plan to communicate the litigation hold to relevant parties

4.  A process for securing information requiring preservation

5.  A process to produce relevant requested information

6.  A method to confirm the litigation hold is operating efficiently

To meet these obligations we recommend a ten-phase process for development and implementation of an effective litigation hold and ediscovery process:

One – Business Process Review.  Identify business activities, business parties, key points within identified business activities, and electronically stored information developed or received in certain business processes.  Then determine control points in identified process that are keys to successful implementation of the litigation hold process.

Challenge:  Business operations should not be driven by the litigation hold, rather the litigation hold operates in the established business environment.

Two – Data Review and Mapping.  Identify “active” versus “inactive” data, data custodians, file types, file locations, and how locations are determined.  Establish the foundation for relevant information under Rule 26(b)(2)(B) that is identified and preserved, as well as the cost for production of information not “reasonably accessible.”

Challenge:  Information and systems evolve and change quickly, employees come and go; maintaining an up-to-date, relevant “data map” is a fulltime job in and of itself.

Three – Litigation Hold Trigger Analysis.  This is the reference point for developing the communication plan and actual information hold process over “who, what, and where” within the company’s data systems.  This phase requires careful analysis to identify potential litigation hold triggers, conduct a risk assessment of those triggers, develop a decision process for issuing a litigation hold, and develop a methodology for determining and documenting data relevant to a litigation hold.

Challenge: You can develop a communication plan for legal holds, however in reality, it is a starting point.  Be prepared to alter/edit the communication plan to fit the matter/circumstances at hand.  There will be changes and updates, often.  Do not get too wedded to the plan.

e-Discovery Hold Notice Response Plan Exemplar

Four – Litigation Hold Communication Plan Development.  Identify methods of communication, roles of specific departments/individuals, and means of communications throughout the entire litigation hold process.  Establish process to communicate relevant information to the identified personnel.

Challenge:  Automating legal hold notice delivery is now a viable option as technology improves to  addresses this need.  Getting the technology to work well requires constant monitoring and testing for quality assurance.  Manual tracking no longer makes sense.  This is becoming a job in large organizations.

Five – Internal Discovery Plan Development.  Develop a plan and identify key parties to include to adequately respond to discovery requests in the event of litigation.  This includes the development of processes and methodologies and may involve the selection and implementation of technical solutions needed to allow your organization to respond to requests.

Challenge:  The key is to develop an adaptable process framework which can be applied to 90% of the matters handled.  Like the communication plan be prepared to adapt and improve the framework to apply in reality to specific situations.

Six – Litigation Hold Process Development.  Develop a documented litigation hold process for documents and electronically stored information, including the identification, collection, and securing and monitoring of data relevant to the event.  Document your process compliance along the way.

Challenge:  To keep up with process documentation requirements.  Write it down (or it never happened/doesn’t exisist)!

Seven – Prepare a Training Plan.  Prepare a plan to educate employees on the importance of and how to comply with document retention and litigation hold processes.

Challenge:  It is relatively easy to prepare training content and rollout a program.  Getting people to attend the program, to realize what their obligations are and think before they act, or adhere to procedures established is the challenge here.

Eight – Train Employees.  Provide an educational experience for users to become familiar with their responsibilities should they become subject to a legal hold.

Challenge:  Often there is little interest in funding a training program.  Some companies are turning to automated legal hold systems to deliver information to custodians about their discovery obligations when under legal hold.

Nine – Test System for Quality Assurance.  Develop a process that provides benchmarking assessment and documentation progress for the rollout of the litigation hold.  Identify how and when to collect feedback for analysis and process redress.

Challenge:  Making the time to regularly monitor quality of your program.

Ten – Provide Ongoing Review and System Updates.  Data, systems and technology change quickly and advance rapidly.  Provide long-term monitoring process to evaluate litigation hold policies and procedures to best align with current operational and organizational changes, legal developments or technology advances.

Challenge:  Making the time to regularly update your program once established.

Today’s complex business environment and its global reach make enterprise eDiscovery Program Development a daunting undertaking for most organizations.  Breaking discovery into manageable phases is a good start in planning for effective litigation readiness.  Within each phase, break down tasks, address roles, define actions, scope, responsibilities, and documentation requirements, and identify the overall desired outcome.   Phased discovery work allows organizations to benchmark progress, to evaluate and capitalize on internal strengths and resources, and to identify those areas where gaps exist that may require outsourced support to fulfill obligations.

The article concludes that in order for cloud operation to provide on-demand, elastic, and measureable services (requirements necessary for litigation support to deliver services), will require new workload orchestration software. On-demand networking has been discussed for more than 10 years but has been difficult for carriers to deploy due to legacy billing and operations software. With the very nature of cloud services being on demand, service providers understand that the network will need to also have this operating characteristic, not just for bandwidth capacity but also for performance assurance.

Future data center architectures will federate everything — networks, applications, and physical locations. The resulting “Data Center without Walls” operating model for litigation support will give IT tremendous operational flexibility and agility to better respond and support business initiatives by transparently using both in-house and cloud-based resources. This virtual data center, connected with an intelligent network, will become a key piece of Litigation Support cloud strategy as enterprise looks to take advantage of the new opportunities cloud computing brings.

With so much data being created and replicated within the law firm environment for litigation related matters it is time to tame the tiger and institute governance over litigation support data.  Governing litigation support data will necessarily mean evaluating storage and architecture, information organization and connectivity, security and policy.

Consider these questions to determine the best storage system and architecture for litigation support:

• Does your litigation support center process electronically stored information (ESI)?
• If processing inhouse, what ESI types are processed, how much quantity, and with technologies?
• Should a new storage system and architecture be considered?
• If a new system is contemplated, then should litigation support be moved to a co-lo facility?
• Should more storage be added to an existing system?
• Is it possible to re-mediate storage to recover space rather than adding more storage?
• Will it be necessary to re-mediate litigation support data in order to move to a new system?

Understanding the three primary storage technologies DAS, NAS, and SAN and their architecture

Data is unquestionably the lifeline in today’s digital organization; this is true for the legal organization (particularly litigation support).  Storage solutions remain a top priority in IT budgets precisely because the integrity, availability and protect of data are vital to business productivity and success.  Litigation support is the largest consumer of storage in a law firm environment.

Several storage options exist today to support various needs of the small, medium and enterprise level business.  The three primary options are:

Direct Attached Storage (DAS)

Direct Attached Storage (DAS) as the name suggests involves the direct connection of services to storage.  This can either be with the use of an internal server disk controller with either internal or external drivers, or with a completely external storage subsystem that includes the controller and disk.  The main characteristic of DAS is that the storage connection from the server to the storage is hard-connected.  This connection is typically through a direct SCSI cabled connection.

Network Attached Storage (NAS)

Network Attached Storage (NAS) is the storage attached to the network – the common Ethernet network.  A NAS is essentially a file server storage that often integrates an optimized operating system dedicated to file sharing.  Optimized OS means designed to serve files to multi-protocal and multi-platforms.  All the processing is done locally on the NAS whereas client only demands it.  This is basically a cooked system – it can be used out of the box.  One major difference with NAS is that it provides file-level I/O via traditional CIFS and NFS network file shares, while DAS and SAN provide block-level I/O.  NAS devices are fairly easy to implement and offer storage consideration and file sharing of data over a standard Ethernet network.

Storage Area Network (SAN)

Storage Area Network (SAN) are the back-end storage networks that connect multiple hosts through a switched fabric such as Fibre Channel of iSCSI.  A SAN provides flexibility for “carving” out storage for multiple servers where the servers can be spread out across a data center.  A typical SAN is configured with multiple switches and multiple server Host Bus Adapters (HBA) to create a high-availability storage configuration and various RAID solutions are used to protect data at the disk level.   Buidling a SAN is more expensive than DAS or NAS and requires expertise with specific hardware and software used to configure the SAN.  A SAN should be considered when supporting many servers as part of an overall data center storage design concept.  The real strength of a SAN is that storage can be assigned and later reassigned as needed to support the changing needs of specific servers.  This results in the efficient use of storage and minimizes unused storage capacity for a given server.  SAN allows for better resource capacity utilization by sharing server growth space.  SAN also allow servers to boot directly from the SAN.  This allows new servers to access LUNs on faulty servers, thereby restoring system functionality without losing data.

Best Model for Litigation Support may be Architecture of Fibre Channel SAN, Server Attached Storage, Database Block Access Model for Primary Activities

In a Fibre Channel SAN there is a low latency and high performance characteristics of the traditional proven model b’cos of the dedicated I/O network.  This is a huge benefit in litigation support with so many transactions per day.  You also have the flexibility of a networking solution with distance, sharing and multiple-host connectivity.  Again, three important features for today’s scalable litigation support infrastructure.

Advantages of SAN for Primary Litigation Support Services

1  Storage sharing among two or more host systems is possible.

2  Storage can be physically located further away from host systems.

3  Storage can be brought on-line and reconfigured dynamically.

4  Backups can be simplified.

5  It is possible to expand and add more positives.

6  Workload is off-loaded from LAN networks.

7  Postpone or delay updates and improve performance of LANs.

8  No extra steps involved in performing I/O to reduce latency.

9  Full redundant hardware RAID with mirrored cache.

10 Integration with volume managers and other storage utilities is possible.

11 Support for RAW volumes for Oracle and other applications.

12 Dynamic storage allocation and expansion can be done.

13 Variable I/O size, RAID levels and other performance enhancement tools available.

14 Hardware RAID offloads server from RAID operations and disk drive rebuilds.

Four Key Requirements for Litigation Support Storage and Architecture

To effectively support required litigation support work spaces these four requirements should be considered:

• Consolidate data onto a single platform that combines file-level control with block-level functionality
• Maximize disk resources for unified storage by separating allocation from utilization with thin provisioning
• Ensure file and block data is always in tune with application needs with automated tier storage
• Streamline data backup and recovery with space-efficient Replays (continuous snapshots) and thin replication

Required Litigation Support Workspaces

Litigation support will require several work spaces to deliver its services.  The following spaces should be considered and architected across the storage environment to deliver the best quality service for users of litigation support and the unit itself.  The three major work spaces include:

1  Preservation – original client evidence, compressed and password protected, should be maintained in pristine (unspoliated) condition;

2  Work in Progress – working copy data of pristine evidence/information may be manipulated, analyzed or “processed”;

3  Results Work Area – results area is where customer/client uses information, or may create additional content themselves

The factual specifics of Scentsy, Inc. v. B.R. Chase, LLC are relatively unimportant, but a recent order [PDF] addresses eDiscovery concerns and reiterates a point that has been made on this site countless times before. Co-defendant Harmony Brands, LLC claimed that plaintiffs had failed to produce enough key documents, and alleged that this was due to an insufficient litigation hold policy. When your opposing counsel is suggesting that your eDiscovery procedures are lacking, it’s probably worth listening. Accordingly, prior to this hearing, Harmony asked

the Court to compel Scentsy to conduct a forensic exam of its own computer systems at its own expense to retrieve any deleted discoverable data, or to order other appropriate sanctions.

The Court makes the point that timing is a key consideration when talking about spoliation, and observes that the dates and the time-frames here at a little unclear as to when litigation was reasonably foreseeable and when particular documents were deleted. The rule for sanctions is that

a court may not impose sanctions… on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system

and so there has to be a finding of bad faith from Scentsy before any sanctions can be imposed. Speaking about the apparent state of Scentsy’s policies:

Generally not deleting documents, and orally requesting certain employees to preserve relevant documents concurrently with filing a lawsuit, is completely inadequate. It is very risky – to such an extent that it borders on recklessness.

Though speaking “generally”, that comment seemed fairly particular to this party. To make that point clearer, the Court declared that

Scentsy’s document retention and litigation hold policies are clearly unacceptable.

Ultimately, the Order allowed Harmony to depose Scentsy employees on the particular subject of whether documents were destroyed. The Court withheld sanctions in this Order, but suggested that, depending on what comes up in these depositions, the window would be open in the future. An adverse inference at trial, or the dismissal of some of Scentsy’s counterclaims are possible sanctions to look out for as this case progresses.

We’ve said before and we’ll say it again: Have a solid policy. Review that policy. Don’t let yourself be open to this kind of challenge. Keep those steps in mind and you’re a lot less likely to get called out by a judge like this.

To address data security concerns CIO’s will need to include litigation support as part of the cross-collaborative team.  The CIO will need to assist litigation support in examining themselves and their data in order to fully address data security concerns.

Security Number One Concern for CIO’s

Managing data security is a CIO’s number one concern according to a 2012 AM Law poll.  If security is the greatest concern then CIOs must take a hard look at litigation support operations, its data organization and customer usage habits.  Here CIOs will find competing interests and a data nightmare challenge just waiting for some brave sole to tackle.

Litigation support transactions make up more than 80% of the information trafficked across the law firm’s network.  What can CIO’s do to mainstream litigation support?  To institute better governance over litigation support information?  What can be done to secure this mission critical information while still meeting client needs, and raising customer satisfaction levels?

How to Improve Security and Provide Exceptional Client Experience

To improve security over litigation support data, both client evidence and firm work product, CIOs must work closely with litigation support and records management to map and define the information – transmission flow, vulnerabilities, system requirements, file characteristics, RIM classification, value and usage.  With this information, the CIO and her team will be able to design an infrastructure system and security features that meet operational requirements as well as secure and protect this mission critical information, particularly as lawyers go more mobile.

To mainstream litigation support CIOs must consider these issues:

Centralization – Bringing litigation support data to a data center, thus increasing the security of the information, while improving overall life-cycle management.

Matter-management – Re-mediate litigation support data under a matter-management structure so that data may be properly classified, used/re-used, or disposed of in accordance with the firm’s records management policies and procedures.

Virtualization – Bringing higher and higher processor utilization to the data center, increasing the business importance and criticality of each physical server used by litigation support, which makes effective power and cooling even more vital to safeguard availability of this mission critical data.  The need for capacity management is greatest when there is change, changing server populations, varying power density, load migration both over time and in physical location – and the steady advance of new legal technologies and the pressure to deliver timely results persists.

Storage Management – Institute storage procedures that allow for management of data across hot, warm and cold spaces, as well as recovery for data that is no longer valued.

Records Management Procedures – Update records management policies and procedures to incorporate litigation support data – both electronic evidence belonging to clients and firm work product.

Visibility and Transparency – A fundamental requirement of any modern litigation support center is visibility and transparency into the complete inventory of data – electronic and physical.  In litigation support this means all versions of client data and work product, evidence, work-in-progress, results and legacy information. This facilitates quick resolution for identifying & solving any problem occurring in the data set.  Fundamentally, litigation support requires visibility and transparency to effectively serve clients.

Information Integration – With evidence management and visibility into data being two key considerations for litigation support, the need for integration between intelligent physical infrastructure management and enterprise management systems portraying the full availability and usefulness of information is intensifying.

Resource Balancing – Infrastructure is provided at the right time in the right volume at the right price, and that it is used in the most efficient manner. The critical success factors are providing accurate capacity forecasts, and appropriate capacity to meet litigation support business needs.  The challenge is that data arrives without warning at 5pm on Friday in litigation support with a request to review by Monday morning.  Having a scalable infrastructure to handle day to day requests as well as spikes is critical to litigation support client satisfaction.

Project Management – Develop an effective program and workflow that is designed to better care for and manage litigation support information.

Mobility – Lawyers are constantly on the go and with the capabilities of smartphones and tablets don’t spend near as much time behind a desk.  Planning a mobile strategy for lawyers will necessarily involve how to deliver litigation support content to the device.  Mobile search, as the predominant consumer utility on smartphones, and sideways traffic (links shared through social media and email that are primarily accessed via a mobile device) are together responsible for the majority of all mobile web traffic.  Determine what other content lawyers access while on the go – does that include document review?  If it does remember that mobility is about behavior, not technology – consider how the lawyer will spend their time before making decisions on where to focus and invest.

Conclusion

To address security concerns CIOs will need to mainstream litigation support.  This means developing an overall infrastructure strategy coupled with a data placement strategy and detailed file plan for litigation support.  The strategy and plan will need to address litigation support’s information life-cycle, its use and value nuances.