The Modern Archivist

Does Congress Really Want More Lawsuits?

In 2007 and 2008 the Supreme Court made two rulings the plaintiff‘s bar could not stomach, Ashcroft v. Iqbal and Bell Atlantic v. Twombly.  As Lisa Rickard from Townhall.com points out, the Supreme Court aimed to establish that “plaintiffs should not sue someone and subject a defendant to the costs and burdens of litigation if there is no plausible basis for their claims.” Seems pretty reasonable to me. 

But last November, Representative Jerrold Nadler from New York, introduced H.R. 4115: Open Access to Courts Act of 2009. The law “prohibits a U.S. district court from dismissing a complaint: (1) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief; or (2) on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff’s claim to be plausible or are insufficient to warrant a reasonable interference that the defendant is liable for the misconduct alleged.”  Whoa.   

In effect, Mr. Nadler aims to open the floodgates of litigation by imposing the burden on the defendant to prove “…beyond doubt that the plaintiff can prove no set of facts in support of the claim…” In an era of ever increasing litigation, with docket’s backed up for years, frivolous lawsuits around every corner, and with people even suing themselves…it may be wise to continue to use a judge’s discretion when there exists no plausible basis for an expensive lawsuit.

If the law passes, there would be no barrier to entry for potential litigation. The average person could play the Lawsuit Lottery: posting frivolous lawsuits until a corporation settles under the weight of potential discovery. Perhaps, if plaintiffs were penalized with the cost of litigation in the event they lose, the liability would give them adequate exposure to litigation risk and mitigate frivolous lawsuits. But the way the system is right now, H.R. 4115 will only exacerbate an already cramped situation.  What do you think? 

Tags: e-discovery, e-discovery costs, Lawsuit, records management

Archiving Software is the Best Way to Handle eDiscovery

Barry Murphy’s recent post discussing whether file/email archiving software or ECM software is best for e-discovery reminded me of the little boat that Quint used in Jaws.  Mr. Murphy correctly points out that, “While ECM systems are closely connected to content-centric processes (think insurance claims management), the information deemed necessary could be archived (alongside email and other content) – and the archive could become the eDiscovery system of record.”   This is precisely what we are seeing in the market today.  Archiving solutions are being asked to ingest all document types including ECM files (like Sharepoint) so that there is one repository for all documents that need to be searched, culled and reviewed for e-discovery purposes.  And with the explosion of data inside large companies, this problem will only grow.  As most companies are realizing, when it comes to e-discovery – you are going to need a bigger boat.

Thanks for the awesome picture Steve!

Tags: Discovery, e-discovery, e-discovery search, e-discovery software, electronic records, litigation discovery, records management

Demonized computers beware…

In another of our series of great cease and desist letters – Best Buy issued a C&D against a priest for using a door sticker on his VW Bug that says “God Squad.”  Apparently, Best Buy’s lawyers think this is too easily confused with their “Geek Squad” of mobile computer nerds.  I doubt there could be any consumer confusion unless the priest makes house calls to perform exorcisms on computers (which is prevelant enough to merit a name -computercism).  What do you think?

Tags: early case assessment, smoking gun documents

Social media is now in a relationship with e-discovery

Maybe it wasn’t love at first site, but there can be no question that the two are now firmly in each other’s arms.  But don’t take my word for it.  Check out the updated state of Florida record-keeping regulations here.   It used to be that e-discovery evidence and records were to be found in Word, Excel or email files.  But the state of Florida has expanded their definition of electronic records to include those made by “email, instant messaging, text messaging (such as SMS, Blackberry PIN, etc), multimedia messaging (such as MMS), chat messaging, social networking (such as Facebook, Twitter, etc.), or any other current or future electronic messaging technology or device.” 

Courts have also found that social media and e-discovery are made for each other.  For example:

• In Monster Worldwide, Inc. v. HR Guru.biz, HR Guru issued counter-claims that allege Monster Worldwide created and maintained a FaceBook page and Twitter account that infringes trademarks and constitutes an unfair business practice;
• In TEKsystems v. Brelyn Hammernik et al, Teksystems  alleges that three former employees breached their non-compete agreements by using LinkedIn to contact current employees;
• In Bass v Miss Porter’s School , the court found that the content of Plaintiff’s Facebook usage was relevant to both the liability and damages phase of the lawsuit; and   
• In Horizon Group Management v Amanda Bonnen, alleges that defendant tweeted about her “moldy apartment” which defamed apartment management. 

And these are just the tip of the iceberg.  Attorneys that specialize in employment and divorce in particular are keen to exploit social media evidence.  Isn’t young love grand?

Tags: e-discovery, e-discovery software, records management, social media

Best Practices: Stopping “Precrime”

In the movie Minority Report, the fictitious Department of Precrime taps into the gifts of three people to identify potential crimes before they happen. The Department of Precrime is intent on stopping the crime from happening by intercepting the perpetrator before the crime occurs. In the movie this was impossible due to false positive prediction flaws in the system and (and Tom Cruise’s acting limitations); however, these reasons do not prevent the idea of stopping precrime from being of particular use to today’s enterprises.

Indeed, stopping electronic precrime is an integral part of an information governance strategy that is linked to eDiscovery, regulatory compliance, and internal investigations. This requires a scalable application that is well integrated into the organization’s IT infrastructure, and cannot be accomplished by standalone review and analysis tools that require manual collection. Forward thinking organizations are proactively monitoring email for compliance and halting offending email communications before they are delivered. 

ZL’s software proactively scans the organization’s email and content using our classification engine to identify potentially infringing documents for review. For email, this happens before the offending email is sent.  For file systems, we use our newly released Manage in Place GRID^TM application to give users vision into the documents before they are used in a courtroom or Senate investigation.  The ability to stop precrime fits into ZL’s information governance and eDiscovery solution set by giving insight into the documents housed within an organization, allowing early case assessment, and driving automatic document preservation and collection.

Tags: analysis, Discovery, Preservation, records management

Electronic Privacy and the Vast Machine

Last week, the Saudi Arabian government announced their intention to block BlackBerry service, claiming that the BlackBerry producer Research in Motion (RIM) had failed to “meet the regulatory requirements of the [government] commission.” The statement did not elaborate much further. This announcement came after the United Arab Emirates had recently decided to suspend BlackBerry service for the benefit of national security. Other countries such as Indonesia and India have expressed similar interest in limiting Smartphone communications as well.

Over the weekend, RIM came to an agreement with Saudi Arabia to place servers inside the Middle Eastern kingdom in order to avoid a ban on service. Saudi officials will now be capable of reviewing messages from BlackBerry products in efforts to curb whatever they deem to be illegal activity.

This agreement creates a dangerous precedent for other governments in the region, and anywhere else in the world.  They will undoubtedly compel all smartphone producers to provide full access to previously encrypted, private information (if they haven‘t already).  Just like RIM, they won’t have any real choice.

The grim reality is that personal emails were (still are?) being read by employers and agents of supposed “free democratic” societies such as the United States. And employees already know that their emails and communications are capable of being read by their employers.  Indeed, there exists very little expectation of privacy for anything online, and the fact that messages are sent on personal phones does not change this reality. In this way, I appreciate that Saudi Arabia and UAE are open and forthcoming about their intentions.

Will individuals begin to behave differently because they are aware that they are being watched?  As it becomes increasingly apparent that someone may be (likely is) reviewing electronic communications, we could simply limit the quantity or type of information we view and share (this will be the virtual panopticon).  Or will we reverse course?  The increasing abundance of data could create a sense of “that couldn’t happen to me” because of such an overwhelming base of information (the ostrich defense?).

Whatever the outcome, don’t be fooled into thinking that the original desire of the Saudi government to review emails is something new, or something limited to oppressive Middle Eastern regimes – privacy is a shared illusion worldwide.

Tags: electronic records, legal discovery, litigation discovery, records management, smoking gun documents

Goldman All Red Over Profanity

 

“boy, that timberwof was one s— deal.”

This one line tormented Goldman Sachs throughout the Senate’s investigation and is highlighted in recent bad press about their curse-laden culture.  Shockingly, these aren’t even as bad as it getswhen it comes to regrettable corporate e-mails that have been leaked to the press.  In response, Goldman Sachs has banned profanity from electronic communications, joining the ranks of Citigroup and J.P. Morgan Chase. Not a bad idea after losing $535M to the SEC in July.   

The lawsuit and investigation, which was in part based on Goldman’s own traders calling their deals “shi**y”, underlines the need for companies to review communications system-wide.  I am sure that Goldman is looking for software that can pre-review emails for certain phrases (like shi**y) and alert the sender and the sender’s management of the breach of policy.  Without that level of monitoring and review, employees can cost companies millions…and in this case, over half a billion. And any software that does this level of pre-review can go far beyond Goldman’s enforcement of their new curse code (or whatever they are calling it) and includes the protection of intellectual property, personal information, and general Data Loss Prevention.

People might see profanity censorship as draconian, yet this has become standard practice for many companies. Bloomberg LP says that it has monitored emails for over 10 years. As Kendall Coffee, former federal prosecutor says, “There is case after case of email disaster that is reported in newspapers or media, and you would think that the last thing any rational person would do would be to…use profanity in email, but it seems to be an unlearnable lesson.”

I agree and doubt there is any way to stop traders from using profanity.  But is it too much to hope that Goldman can learn to stop trying to f*!@ its investors?  We’ll see.

Tags: Discovery, e-discovery search, electronic records, Preservation, records management, review

Best Practices: Manage Documents in Place and Collect Documents Automatically

One of the benefits at working at a relatively small technology company is the ability to interact with our large Fortune 100 customers.  In one of these discussions, a client mentioned their need to search for and collect documents that were not part of their archiving system.  In essence, the customer told me that they didn’t want to archive all the company’s documents but really wanted to search the documents and if they found them to be relevant to a lawsuit (for example), collect them for possible production.  Armed with this wish, our team created the Manage-in-Place and Automatic Document Collection modules that shipped with the latest ZL Unified Archive® release. 

Manage-in-Place provides organizations with complete information governance while leaving the document on the source file system.  This module allows our clients to search and analyze petabytes of data on disparate file servers without the need to archive that data.  Our client can now use this module to search for and analyze their data at the touch of a button and to perform true early case assessment before a lawsuit has been filed or discovery requests served. 

Once the documents have been searched for, analyzed and found to be potentially relevant, our new Automatic Document Collection module copies the files (with metadata intact of course) into the archive.  The client does not need to ask for the IT Department’s help or hire an expensive eDiscovery vendor to perform a manual collection – now it is all automatic.  And because the data is preserved for litigation so quickly there is little chance of a spoliation sanction.    

Here are ways to use the new modules:

• Early Case Assessment: By proactively analyzing the organizations data, users can quickly zero in on relevant data for any litigation, identifying information and then launching automatic collection and preservation tasks that take days instead of months to compete.
• Automatic Custodian-based Collection: Collection is a major eDiscovery challenge since networked files are often not as easily delineated by user as compared to user mailboxes. With ZL Manage-in-Place, a custodian map is created for all files managed in place to enable search and collection by custodian. This can be used for custodian-based collections and is supported by integration with user directories (e.g. Active Directory, LDAP) and file systems (Windows / CIFS, NFS, etc.).
• Automatic Matter-based Collection: For targeted investigations, ZL’s matter-based collection uses keywords, date ranges and other query parameters to target data for collection across the entire organization.  Matter-based collection can be used to identify just the data to be collected and to identify custodians whose data should be included in any collection.  

I am really excited about these innovations because implementing these features will have a dramatic effect on improving our clients’ eDiscovery efficiency.

Tags: Discovery, e-discovery, e-discovery costs, e-discovery software, early case assessment, Preservation