Information Governance and Its Impact on Litigation
"The amount of information generated by business today is continually increasing—some estimate 1.8 zettabyes of data will be created in 2011. While word processing, social media, and email have made it easier to create information, it remains important to effectively govern that information in order to minimize risk while maintaining the information's value to the organization. Information governance is important because it allows business to share information more effectively across departments and geography, and prevent the mistakes and wasted energy so often caused by lack of communication and information silos.
While a company cannot typically control the increasing number of lawsuits, audits, and investigations it may face, it can establish parameters around its response to those obligations, minimize the company's public scrutiny, remain compliant, and reduce business and legal risk, cost, and impact. To that end, it is important to establish guidelines and policies around information governance and leverage technology to help implement those protocols."
"It must be hard to be a computer network professional. You're responsible to maintain security, you have little or no control over what people send and receive from the computers you maintain, and you may be the only person with the technical knowledge and access to identify the source and availability of electronically stored information. I imagine these folks hate subpoenas, especially if they have nothing to do with their employer's business.
In Tener v. Cremer,[FOOTNOTE 1] the plaintiff sought to compel a non-party, New York University, to respond to a subpoena that might enable the plaintiff to identify the source of a posting on "Vitals.com," an internet opinion website that advertises itself as the place "where doctors are examined." This appears to be one of many internet sites that solicit opinions that others may use in making consumer decisions, and the plaintiff in Tener was a board certified physician who wanted to sue the author of allegedly defamatory remarks."
A Quick-Guide Article to Reducing Backup Times
"Though backup software vendors continue making advancements in technology to speed up the process, the time it takes to backup can still be very time consuming for many IT managers today. A recent survey conducted by Vanson Bourne on 1,000 UK companies suggested businesses are on average backing up to tape once a month, with one rather alarming statistic from the same survey showing 10 percent were only backing up to tape once per year.
This infrequency of backup could realistically be strongly attributable to the time factor involved. Likely, many companies would run their backups on Friday evenings, in the hope for it to be completed by Monday business start. But with such large data pools, these backups might not complete in time, and can therefore often be postponed for larger time frames."
When a cloud service vanishes: How to protect your data
"The Web services that we entrust with our data can -- and do -- vanish. And when that happens, you need to have a plan. In the following pages, I'll take a look at some cases where user data was lost or endangered, how the companies (and their users) handled the situation, and what you can do to keep your own information safe."
A Legal Software Reality Check
"Technology analysis firm Gartner recently published several reports dubbed "hype cycles" as reality checks against pundits' and vendors' buzzwords, fluff, and vaporware. One such report by analyst French Caldwell, Hype Cycle for Legal and Regulatory Information Governance, 2011, includes several sections directly relevant to legal technology including redaction, forensics, and e-discovery software.
"Legal and compliance challenges are most often the business drivers for beginning or enhancing information governance programs. Therefore, corporate compliance officers, general counsels, and IT legal support managers have crucial roles in formulating policies, overseeing processes and enforcing standards around information governance,” Caldwell wrote, referring to the overarching process of making data conform to business strategies instead of the opposite."
"Organizations offering to certify electronic data discovery professionals are sprouting up faster than dandelions in May grass — and preying on the members of our legal community who may be the least able to afford the "services" and may not realize how flimsy the certifications may be. The basic premise: Pay $995 to take an exam, offered by a newly formed for-profit organization that has an advisory board full of names you don't recognize. If you pass, they will hand you a piece of paper declaring that you are certified to handle e-discovery.
Unfortunately, too many of these organizations target young, ambitious contract attorneys, paralegals, and litigation support professionals who are trying to better their careers. New lawyers may not even realize the serious ethical challenges created by state bar rules that tightly control how lawyers can present credentials to the public. For example, the California bar strictly regulates specialization, and many other states have ethics rules that forbid lawyers from announcing that they have passed certification programs. The bottom line — hard work and even harder earned dollars are being extracted for a certification that may not be worth the paper it's printed on."
E-Discovery Certification Holds Promise for Legal Professionals
"Electronic data discovery is a mainstream business process that is still in its infancy, so it only makes sense that organizations are attempting to build a standardized body of knowledge that will require consistent standards, processes, best practices, tools, and techniques. Many EDD professionals entered the field from various directions, including technologists, paralegals, and lawyers. Currently, individuals entering the field have little knowledge of the litigation life cycle, technology processes, or the practical experience needed to navigate the budgetary, technological, and legal requirements for a case."
Don't Confuse Oranges With Apples: E-Discovery on Macintosh Systems
"As if dealing with electronic data discovery in a predominately Microsoft Windows world is not difficult enough, Apple's Macintosh computer systems are increasingly finding their way into corporate environments and present unique discovery challenges. Lawyers who assume they can simply use a standard Windows discovery approach when dealing with Macs may be committing an error in logical reasoning — similar to comparing apples to oranges.
During the identification stage lawyers typically reach out to relevant custodians and the client's IT contacts to gain an understanding of key issues, and the systems and electronically stored information that may come into play."
Automated Management of Legal Holds
"Recent federal court cases have reinforced that legal holds are an indispensable element of electronic discovery. A legal hold is a corporation’s legal duty to preserve electronically stored information (“ESI”). A hold issued internally within a corporation places potentially key custodians on notice to retain materials that may be relevant to legal claims of a pending or anticipated matter. Although these cases are highly fact-specific, federal courts have noted that the duty to preserve is invoked “when the party has notice that the evidence is relevant to the litigation or when a party should have known that the evidence may be relevant to future litigation.” Instituting and managing a legal hold must thus take place from inception through release."
Talking to your client: 101 of ESI Preservation
"Due to the importance of discovery, courts take it very seriously. Especially the duty to preserve documents. Ever since Zubulake v. UBS Warbug, LLC, the threat of sanctions paid by a party has loomed the realm of discovery. Zubulake and its predecessors have brought into focus the question of when do you retain documents, how do you properly retain documents, and to what extent you are bound to preserve these documents.
What follows is a quick guide to starting that conversation with your client when the duty to preserve arises."