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Jim Gill

Glitch in the Matrix – The Vital Role of Communication Between All Stakeholders in eDiscovery: eDiscovery Best Practices

Editor’s Note: Jim Gill’s writing about eDiscovery and Data Management has been twice recognized with JD Supra Reader’s Choice Awards and he holds an MFA in Creative Writing from Southern Illinois University, Carbondale.  Before working in eDiscovery, Jim taught college writing at a number of institutions and his creative work has been published in numerous national literary journals, as well as being nominated for a Pushcart Prize.

Jim’s post below highlights the importance of communications between all stakeholders in the discovery process.  Here’s an example of what can happen when communications break down.  For more information on how CloudNine manages communications for our clients, contact us at info@ediscovery.co.

But first, this week’s eDiscovery Tech Tip of the Week is about Filtering Your Document Collection.  Some attorneys like to load data and get started right away with searching, before they cull out duplicates and clearly non-responsive files.  This can drive up review and production costs and lead to inconsistency in review.  If data for several custodians in an organization is collected for review, many of them will have the same files and emails, especially when those emails are sent to large groups or all employees, so there’s generally no need to review them more than once.  Every file has a digital fingerprint known as a HASH value and all files with the same content in the same format will have the same HASH value, so you can set aside all of the duplicates after the first file.  Domain categorization and relevant date range identification are other areas where you can effectively cull before searching.  The ability to select specific clearly non-responsive domains or collected files outside of the relevant date range and put them quickly into the non-responsive “bucket” can save a lot of time in review and production.

The good news is that the process of filtering that redundant or clearly non-responsive ESI today can be largely automated.  To see an example of how Filtering Your Document Collection is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

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In an article by Morgan Chalfant at The Hill posted on January 25th, it was reported that text messages between two FBI employees that were sought by Congressional and Justice Department investigators had not been preserved due to a “glitch” that not only affected the messages in question, but nearly 3,500 FBI devices, “close to 10 percent of cell phones used by bureau employees”.

In this day and age, where data hacks and cyber-espionage are no longer the realm of near-future science fiction, cries of a conspiracy were quickly sounded. But the reality, according to FBI officials, was “that the messages were not preserved as a result of misconfiguration issues related to software upgrades of FBI-provided Samsung 5 mobile phones that conflicted with the bureau’s archiving efforts.”

As more and more tools and applications move to cloud-based platforms, particular awareness has to be taken when it comes to automatic system updates. Last year, when it seemed everyone in eDiscovery was moving or planning to move to Microsoft Office 365, one thing that users noted (particularly those in legal departments) was that they weren’t notified about the updates, either because IT didn’t communicate the updates to users in Legal, or the users in Legal didn’t notice when IT did communicate the updates. Some of these early O365 updates would change settings back to a default, resulting in problems related to retention and preservation. It seems a similar issue is what happened with the FBI’s phones.

This brings up a couple of challenges that are common in eDiscovery:

  • First, the need for clear communication between all stakeholders involved in the process — Legal, IT, Lit Support, Project Managers, Security, Business Units, etc. Information moves fast enough as it is, and when you add elements like automatic updates to the mix, it’s extremely difficult to keep up. Most people don’t track when the apps on their phone update. You might notice it happening via a push notification, but unless the app stops working the same way or a new feature or interface pops up, we simply move on. Apparently, even the FBI does this. So this is why it’s important to create communication protocols surrounding technology changes ahead of time, so that things like this aren’t missed.
  • And second, the need for having a good working relationship with software vendors / providers. More and more, the role of industry third-parties can provide insight, training, and support for the smooth operation of your team’s information governance and eDiscovery operations. With software platforms moving to the cloud, vendors have more and more control over your organization’s processes (which isn’t a bad thing, because they most likely have more technical knowledge on making things run successfully). If you can find a vendor that understands your organization’s needs and is willing to develop a solid working relationship with your eDiscovery team, then when glitches do arise, it’s much easier to handle them.

When things go wrong in a big way, it’s tempting to blame it on the technology (or even better the unknown wizards behind the curtain who created it). Which is all the more reason why legal teams need to incorporate experts who understand the technology and how it affects (or could potentially affect) operations, and then foster regular and open communications with all parties involved, so that everyone knows how to avoid potential problems, or when they do, there are policies and protocols in place for quickly bringing things back in working order.

So, what do you think?  How do you manage communications with stakeholders in your organization?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

ESI, ROT, and LBJ – Thoughts on Data Management While Visiting the Lyndon Johnson Presidential Library: eDiscovery Trends

Editor’s Note: If you love to read blogs about eDiscovery, you’ve undoubtedly read posts and articles by Jim Gill.  So, we’re excited to have Jim providing some guest posts for eDiscovery Daily!  Jim’s writing about eDiscovery and Data Management has been twice recognized with JD Supra Reader’s Choice Awards and he holds an MFA in Creative Writing from Southern Illinois University, Carbondale.  Before working in eDiscovery, Jim taught college writing at a number of institutions and his creative work has been published in numerous national literary journals, as well as being nominated for a Pushcart Prize.

Jim’s post below highlights the importance of information governance and the need for data discovery to manage increasing volumes of data (as we discussed during this webcast last month).  For more information on how CloudNine helps organizations with data discovery, contact us at info@ediscovery.co.

But first, this week’s eDiscovery Tech Tip of the Week is about Issuing a Timely Legal Hold.  Without a doubt, the most frequent type of case we’ve covered on the eDiscovery Daily blog has had to do with sanctions for spoliation of ESI.  Often, the risk of spoliation of ESI can be minimized simply by issuing a properly documented legal hold, which can go a long way in showing due diligence efforts to meet your duty to preserve.  It’s also important to understand that the duty to preserve begins when there is a reasonable expectation of litigation, which can sometimes be well before a case is actually filed.  For example, if a terminated employee (who feels that he or she was wrongly terminated) says something like “I’m going to sue you, you’ll be hearing from my lawyer”, your duty to preserve responsive ESI related to their employment and termination may begin then, not when the case is actually filed.  Here’s a famous example of a case where a company failed to meet its duty to preserve.

The good news is that the process of issuing a legal hold today can be largely automated.  To see an example of how Issuing a Legal Hold is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

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A few weeks ago, I took a road trip from Oregon to Austin, Texas as a way to ring in the new year. A friend met me there, and one of the things we’d hoped to do (besides listen to a lot of live music) was visit the LBJ Presidential Library housed at the University of Texas campus. As the man at the information desk said with a smile, “In Texas, we like to do things a little bigger and a little better,” before explaining that the other presidential libraries keep all the documents created during a presidency, but with Lyndon Johnson, the library contains not only documents from his presidency, but from his entire time in public service.

From the 4th floor mezzanine, you can see the upper floors of the library through glass — Five through Nine contain Johnson’s documents — five floors of paper documents, that may be historically significant and valuable to researchers. The library houses more than 45 million pages, including an extensive audiovisual collection and more than 650,000 photos and 5,000 hours of recordings.  Which made me think of the state of data creation, management, storage, and security in the corporate world today.

We’ve all read various stats on the exponential growth of Electronically Stored Information (ESI), that basically more data is created every two years than all of the data created up to that point in history. It’s a daunting notion. Which means corporations and other organizations need to get serious about data management.

From a legal standpoint, attorneys tend to be very risk averse, and in the name of defensibility, tend to take on a “save everything” approach to data. And a few years ago, this may have been the best approach. But now, with more secure cloud-based information governance and eDiscovery solutions, companies can quickly map and analyze their data landscape and decide what is absolutely necessary to keep, and what can be deleted without affecting defensibility should litigation arise.

In 2016, a study by Veritas found that as much as 85% of ESI is Redundant, Obsolete, or Trivial (ROT). If you think of the image of the five floors of documents at the Johnson Library, that means four of those floors (and part of the fifth) would be filled with duplicates, things that didn’t relate to Johnson’s tenure as a public servant, or grocery lists scribbled on napkins. A Fortune 500 company in 2018 might create five floors worth of data every year (or more!), most of it ROT.

The consequences of poor data management are wide ranging: storage costs; security risks should there be a data leak; eDiscovery costs, particularly surrounding collection and review; etc. Which is why automating and integrating both data discovery and analysis with eDiscovery tools is vital for any organization so that the concerns of all stakeholders (Legal, IT, and Business Units) are covered.

So, unless you’re a presidential library, whose sole purpose is to keep everything, it might be time to consider the state of your organization’s data and move toward a more secure, defensible, and cost-effective approach.

So, what do you think?  How does your organization keep ROT at bay?  Please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.