Part 3 – E-discovery: Creating and Managing an Enterprise-wide Program

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Bridging the Distance between Information Management and eDiscovery

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.

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