The Modern Archivist

Extended Functions of E-Discovery: Regulatory Compliance and Internal Investigations

E-discovery solutions have naturally been classified as litigation support, and in this post I’ll go over why this area continues to be of growing concern. In another section, I will cover why the same solutions which provide litigation support can also help to solve internal investigations as well.

First, rising litigation highlights the importance of e-Discovery. In Fulbright’s most recent survey litigation survey, over 90% of U.S. and U.K. respondents expecting legal disputes to increase or remain the same:

…93% of U.S. and 97% of U.K. respondents expecting legal disputes to increase or remain the same this coming year. This expectation comes during a year when 87% of U.S. respondents faced new litigation in the past year (up from 83% last year) and 53% of all respondents initiated a suit in the past year (up from 48% overall last year)….In the U.S. – and for large-caps in particular – intellectual property and patent litigation are also high on respondents’ radars.

And, according to the same study, “More regulators have been investigating a greater variety of companies, from small to large and across sectors – particularly banking, health care and energy.” Rampant regulatory changes and stricter enforcement seem to have increased the need for the ability to find documents within an enterprise.

Like most things, cost produces the constraints which this process works around. Bringing discovery in-house reduces the cost at an astonishing rate. Patrick Oot, a member of the Law Technology News Editorial Advisory Board, is director of electronic discovery and senior litigation counsel at Verizon, based in Washington, D.C. says:

In July 2008, our EDD team completed a business case that presented an opportunity for Verizon to save about $4 million in legal expenses in one year by establishing an in-house system, with support staff, infrastructure and software for internal data processing, hosting and review. We believe that over the next three years, this business case will yield up to potential 395 percent return on investment.

Following this example, both NBC and Microsoft have moved their discovery internally. At NBC, Jonathan Chow -Chief Information Security Officer (CISO) – heads the IT implementation and explained to ComputerWorld that, as with many corporations, the information security department includes e-discovery as a key responsibility for litigation support, M&A activities, and internal investigations. The move in-house allows NBC to administer searches and investigations internally without the dubious cost of hiring outside vendors.

E-discovery Used Internally

E-discovery solutions have traditionally only been seen as a litigation support tool. But no longer. Today, savvy businesses are using the same tools to solve internal investigations, regulatory compliance and records management issues.

The use of e-discovery tools in internal investigations remains vital for international corporations as well as domestic outfits. All major companies need the ability to search electronically stored information ( ESI) to complete internal investigations that may be generated by HR or corporate security. No matter the regulatory environment, personnel misconduct and fraud detection must be of vital importance for any company – and a particular worry for CISOs, Chief Security Officers, General Counsels, and CEOs. Unauthorized access to sell or manipulate data and sexual harassment or other inappropriate communication has become all too common, and internal investigations have become ever more important as a result.

Compliance with government regulations remains of great importance to industries such as financial services and healthcare as well as the broader set of publically listed companies. NASD, SEC, and HIPAA govern strict regulations on the retention of e-mail and other ESI. As a part of information management and security, e-discovery tools like ZL’s Unifed Archive can manage the retention (or destruction) schedules for ESI based on a granular set of rules. If a company’s ESI were sand in a box, ZL’s proactive e-discovery tool is a very speedy fine-toothed comb.

As the application of e-discovery tools expand, many companies find that classifying them purely as litigation support can be a misnomer. The discovery function serves both litigation support and internal investigations due to the increasing need to hold employees accountable to company policies. No matter the name, the ability to search through a company’s ESI remains a pillar of responsible corporate governance.

Tags: ComputerWorld, Discovery, electronic discovery, Electronically stored information (Federal Rules of Civil Procedure), Security

Government Metadata Now Subject to Production

On October 7^th, in O’Neill v. City of Shoreline the Supreme Court of Washington ruled that metadata of government records are subject to disclosure under Washington’s Public Records Act (PRA).

The case involved a request for e-mails from employees of the State of Washington. The requested e-mails, which were duplicates, were provided in hard copy format to plaintiff without the original metadata. The plaintiff again requested the original e-mail complete with metadata. Unfortunately, the original e-mail had been deleted. To further complicate matters, at least one recipient in the original e-mail had been included solely in the blind carbon copy (BCC) function, as the to and from fields were not used to address the relevant individual. Metadata in the BCC field is challenging to capture.

Since the City of Shoreline was unable to produce the e-mail and metadata, the plaintiff alleged that the defendant violated the Public Records Act. Upon review from the Supreme Court of Washington, the court declined to hold that the City had violated the PRA, but the court is compelling  the City to recover the requested metadata from the BCC’d recipient’s computer. The trial court was instructed to hold the City in violation of the PRA If the recovery is futile.

O’Neill v. City of Shoreline was Washington’s first exposure to the question over the availability of metadata, and only the second case nationwide. This case, combined with the other case hailing from Arizona, form important e-Discovery precedent. Taking cue from the Arizona Supreme Court, the Supreme Court of Washington ruled that [emphasis mine]:

“Metadata may contain information that relates to the conduct of government and is important for the public to know. It could conceivably include information about whether a document was altered, what time a document was created, or who sent a document to whom…We agree with the Supreme Court of Arizona that an electronic version of a record, including its embedded metadata, is a public record subject to disclosure.”

The scope of production for Washington’s PRA has thus been significantly widened and any future failure to properly capture and produce metadata will result in violations of the Public Records Act. As Arizona and now Washington have shown, this is a trend which is likely to continue as courts learn to understand the value of metadata for providing context and information. State governments must prepare themselves to comply with requests which involve metadata.

From an e-mail perspective, which is highlighted in this case, states will be required to journal e-mails into an archive in order to be able to capture all relevant metadata. For instance, in order to capture the BCC metadata used in this case, the state would have had to archive the e-mail using a journal method. ZL Technologies’ Unified Archive provides the ability to journal, along with many more functionalities to archive the content and metadata of over 1000 file types. Visit www.zlti.com to find out more.

Tags: e-discovery, e-discovery software, litigation software, Preservation

Elastic Clouds, Archiving and E-Discovery

A key aspect of managing archiving / e-discovery costs with the cloud, whether it is on the public cloud or a private on-premises cloud, is the ability to control hardware costs by matching it with the required workload through elastic scaling. In this article I will talk about why elasticity is important information governance and the different cloud computing layers (SaaS, PaaS, IaaS, etc.) that are required for a cloud computing solution.

Both archiving and e-discovery are well-suited for elastic cloud solutions due to the amount of one-time work needed. For archiving this often occurs when migrating from one system to another; while for e-discovery, this often occurs during collection and processing which is associated with individual matters. During any of these tasks, a large amount of processing power may be needed to collect and process data, whether it is several gigabytes or several hundred terabytes. In a traditional solution, hardware resources are fixed over the short-term meaning that either you cannot easily obtain additional needed resources or you are budgeted for peak loads and have additional carrying costs when not performing those functions. Using an elastic cloud-based solution allows organizations to match their hardware with their processing needs, scaling up when needed and scaling down or redeploying when not needed. At ZL Technologies, our customers run cloud environments ranging from several servers to several hundred servers, easily adding and removing servers as necessary for archiving and e-discovery.

To be truly effective, a cloud-based system must be cloud-enabled at several layers:

• Infrastructure – Infrastructure as a Service (IaaS)
• Platform – Platform as a Service (PaaS)
• Application – Software as a Service (SaaS)

Cloud infrastructure is generally easy to obtain, whether it is on Amazon’s public cloud or a VMware-powered private cloud; however, this takes advantage of only the most basic resource pooling benefits of cloud computing. By scaling at the application layer, a SaaS / PaaS solution enables true elasticity where servers can not only be easily brought online, but also brought into the worker pool to share tasks and then be redeployed when the tasks have been completed. Today, cloud-based elasticity at the SaaS and PaaS layers generally needs to be built directly into the archiving / e-discovery solution.

ZL Unified Archive®’s success as a scalable archiving and e-discovery solution (see IDC case study) is based on its ability to scale at the application and platform layers using ZL’s Globally Redundant, Integrated and Distributed (GRID^TM) platform and applications. The GRID^TM platform and protocol was developed by ZL to handle carrier-class Internet and mobile deployments that manage 100,000s of users and millions of emails per day for some of the world’s largest telecoms. This same technology allows ZL’s Fortune 500 customers to effectively manage hundreds of terabytes and billions of documents in the cloud.

If you are interested in learning more about scaling archiving and e-discovery in the cloud, please contact us at ZL Technologies for an in-depth discussion of offerings and case studies.  Or visit us at the upcoming IQPC conference for Oil and Gas Companies in Houston.  We will be there discussing both cloud computing on day 1 and how to move from reactive e-discovery to proactive e-discovery on day 2.  

Tags: cloud, Discovery, e-discovery, electronic records, legal discovery

Social Media Can Lead to Social Change

In an interesting exploration of the social media world, Malcolm Gladwell of Tipping Point fame, analyzes the impact of social media in The New Yorker. His analysis contends that social media cannot enact true social change because “[t]he platforms of social media are built around weak ties,” and social movements have historically grown from close ties.  Mr. Gladwell points to the Greensboro sit-ins in the 1960s as evidence of close ties that helped enact true social change.

I disagree.  As the Economist’s Free Exchange states, it is a mistake to “assume that social media merely increases weak ties… networks like Twitter and Facebook reduce the cost of minor interactions, which leads to more minor interactions.” And these additional minor interactions lead to the ability to create strong ties. Furthermore, Mr. Gladwell fails to see that social networking is much more like the Greensboro sit-ins than he could imagine.  For example, in the last month alone, forums across the Internet have spurred over $250,000 in donations to American classrooms and a Rally in Washington, DC – - the genesis of which came from one man’s post. The proof is in the pudding.  Social media is now the avenue to spur action, and companies and large organizations are already harnessing this power.  You should too.

Tags: e-discovery, electronic records, smoking gun documents, social media