The Modern Archivist

What Happens When A Company Ends Email?

By Elle Byram. Esq., CEDS

Would elimination of all internal email be an effective records management strategy? Could it potentially reduce the costs of e-discovery? Perhaps. But at what cost to the business? Do we need email to effectively conduct business? I would imagine the answer would be, as any good lawyer will say, it depends. However, we may soon find out.

Atos SA’s chief executive Thierry Breton recently made the decision to stop using all internal email – company-wide – by mid-2013. Breton is in turn requiring the $13 billion company that operates in 42 countries to use “instant messaging and a Facebook-style interface to communicate.” The decision was not made as a records management strategy but as a business strategy. The rationale for ceasing the use of emails is based on the conclusion that too many employees waste too much time sending useless emails. (And text messages, instant messaging and Facebook posts don’t constitute predominantly useless communication, which because of their inherent and intended limitations are difficult to make truly useful?)

Atos estimated from its own research that only 15% of its internal emails were actually useful. In a records management world, this seems to be a very generous proportion of emails. Some studies have found that less than 5% of all corporate emails have business value. Perhaps the Atos employees are actually more focused and efficient in their use of email compared with the average corporate employee. Something we should applaud. Or maybe their definition of “useful” is so broad as to actually be a tad bit wasteful.

Regardless of their motives, Atos may end up with fewer emails that could impact both their records management and e-discovery. The halting of all email communication is something a lot of records managers and legal departments would love. However, whether Atos’s alternatives will actually lessen the burdens that email causes companies is yet to be seen (and may never be intentionally made public). Their alternatives – instant messaging and a Facebook-style interface – may be more challenging forms of communication to retain causing more headaches for records managers and the legal department. However, if the alternative communication methods truly produce a reduction in the amount of information sent, no doubt a debatable point, perhaps this will offset the complications of retaining this type of information making retention of it about equivalent to the retention of email.

President Obama’s Records Management Directive

By Stephen Chan, Co-founder

Amidst the grogginess and sluggishness typical of American post-Thanksgiving overindulgence, the White House slipped out a short but interesting memo near and dear to The Modern Archivist’s heart. Published in the Federal Register on Monday, November 28, 2011, was a Presidential Memorandum on “Managing Government Records,” from the Office of President Obama to the heads of all executive departments and agencies.

Inside, it establishes a Records Management Directive, which focuses on six key items:

• 3(a)(i) creating a Government wide records management framework that is more efficient and cost effective;
• 3(a)(ii) promoting records management policies and practices that enhance the capability of agencies to fulfill their statutory missions;
• 3(a)(iii) maintaining accountability through documentation of agency actions;
• 3(a)(iv)increasing open Government and appropriate public access to Government records;
• 3(a)(v) supporting agency compliance with applicable legal requirements related to the preservation of information relevant to litigation; and
• 3(a)(vi)transitioning from paper-based records management to electronic records management where feasible.

It also references the Archivist of the United States and several requirements and deadlines towards Records Management Reform, including:

• 2(a)(iii) where a senior agency official must be assigned to supervise a review of records management practices, “in coordination with the agency’s Records Officer, Chief Information Officer, and General Counsel,” within 30 days.
• 2(b) which states that within 120 days, “each agency head shall submit a report to the Archivist and the Director of the Office of Management and Budget (OMB) that,” describes the agency’s current plans for improving or maintaining its records management program, “particularly with respect to managing electronic records, including email and social media,” and outlines the obstacles to adopting sound record management policies and practices as well as any policies and programs that would improve the agency’s efforts in records management per guidance from NARA and the Records Management Directive.

Ignoring for now the fact that Presidential memos do not carry the weight of laws or regulations, it does seem that the direction is being given from the White House for the federal government to step into the next century, and a paperless one at that.

I give significant credit to the fact that the memo specifically points out under Section 2(a)(iii), the need for “coordination with the agency’s Records Officer, Chief Information Officer, and General Counsel.” Raising the visibility, importance, and attention of this issue to these specific stakeholders, both technical and business related, has been one of the critical elements for success in the deployments that we have seen to date. Without appropriate buy-in from these groups, most records projects fail.

And while we shouldn’t dismiss the current efforts by NARA and other institutions that are already being explored and implemented, records management is not easily instituted. Like many other worthwhile endeavors, it can be likened to pushing on a string. The more support given by the President and any other thought leading agencies the greater our chances of seeing the benefits of an updated infrastructure in our lifetime.

See the original memo here: http://www.whitehouse.gov/the-press-office/2011/11/28/presidential-memorandum-managing-government-records

eDiscovery is Too Expensive! But who is driving the bus?

By Linda G. Sharp, Esq., MBA

We have all heard time and time again that eDiscovery is too expensive. Those that have been in the industry for any time have come to realize that this is a huge problem for corporate America. But what are the driving forces?

1) Keeping data that has no legitimate business purpose (“Honey pick up the milk” emails).
2) Keeping data that has passed its useful business lifecycle.
Replicating data again and again for multiple matters, which includes collections, processing, review, and hosting.

In the paper days, one file on any given transaction constituted the “corporate record”. What happened? Why can’t we do that in the electronic world? As new technologies developed, it became easier and easier to replicate information. Consider those emails, with the attachments, that are sent to the entire department or members of the team. Not to mention the number of replies to all compound the problem. How do we get control of this problem?

Imagine if there was only one instance of any given document. For litigation matters, you could place a hold on the data without going through the traditional process of collecting, processing and hosting it for review. What if you could put a legal hold on the data in your environment so that it isn’t deleted? What if you no longer had to export your data for review but could have counsel link into your environment and review the documents, in place, that satisfy the request? What if you could eliminate collection, processing and hosting charges while at the same time reduce review costs? What if, once you learned that the data no longer has a legal or business purpose, you could click a button and it would just go away?

There is technology today that can solve this, but companies have to make the move. Many companies have built enormous IT infrastructures as well as implemented eDiscovery processes and workflow that compound the problem. We have to stop looking at the way we do business just because “this is the way we have always done it.” But who is driving the bus when it comes to looking at corporate data from a holistic approach? Legal is focusing on legal, records on records, and compliance on compliance. And IT? They wait for their “internal customer” to tell them what they need and then find a targeted solution to fix that specific problem.

The NY Times on Data Growth

The NY Times’ Shelly Podolny ran a recent opinion piece on the growth of information. Particularly troublesome was the cost of information overload which was estimated to be in the “…hundreds of millions of dollars yearly.” According to the NY Times:

The current volume estimate of all electronic information is roughly 1.2 zettabytes, the amount of data that would be generated by everyone in the world posting messages on Twitter continuously for a century… More stunning: 75 percent of the information is duplicative. By 2020, experts estimate that the volume will be 44 times greater than it was in 2009.

And it is in the business world where all of this data is continuously being stockpiled – mainly because doing so seems easier than figuring out what is permissible to delete.  There are other costs associated to information hoarding as well, costs like e-discovery which can add up to millions of dollars every year…on top of settlements forced on companies by e-discovery’s costly nature.

As internet usage expands in volume, this problem faces both Wall Street and Main Street:

…it’s not the giants like Google or Amazon or Wall Street investment banks that are responsible for creating the data load on those servers — it’s us. Seventy percent of the digital universe is generated by individuals as we browse, share, and entertain ourselves…

Podolny asserts that no matter what we do, “…improvements in the digital highway usually just lead to more traffic…” But here at ZL we believe that is a fallacy. ZL believes in smarter traffic.

By reducing duplicative information within organizations, storage footprints can be reduced by over 75 percent. Using proven methods like stubbing, single-instancing and SaaS, we believe in a further reduction of IT capital expenditures while preventing the hidden costs of rogue data.

On top of this, ZL can categorize and (most importantly) delete data based upon the content or metadata. This puts real teeth to a retention schedule and means that there is even less information being stored.

Less processing power storing less information means smaller server farms, reduced energy consumption, and a decrease in a corporation’s carbon footprint.

As Podolny asserts, “No one wants to give up the pleasures and benefits that the digital domain provides.” With smart information management, no one will.

The Case against Gmail

I love Gmail. The features, UI, and integration of this service are second to none. I even use Gmail as my main e-mail client for non-professional use. However, Gmail cannot be used in the business world for one reason: it is not 100% reliable.

Yesterday, Gmail users have been reporting a huge problem – that all of their emails, labels, themes, folders and settings had been erased. According to Google, this may affect .29% of the Google Mail database. Although this seems like a trivial amount (29 out of every 10,000 mailboxes), the loss of any mailboxes at all to a corporation is substantial.

What if one of the lost accounts happens to be a C-level executive or a custodian in an eDiscovery case? I know of no IT or Legal department that would want to be traced to a problem of that magnitude. We all know how important e-mail is for day-to-day business. And imagine how indefensible it would be to explain that Google lost all of your evidence.  A day after the issue was reported, the Google engineering team is still “investigating”.

According to one blogger cited on HuffPo, “It is clear from the Gmail forums and Twitter that hundreds if not thousands of people have had their Gmail accounts compromised. A firm believer in the concept of cloud computing, it never occurred to me that my Gmail account could one day disappear.”

Cloud service providers will always have this problem – even Google can’t guarantee everything. You can check the status for the issue on Google’s forum here.

ZL’s Unified Archive will make sure this never happens for any company. While Gmail may lose e-mails forever, ZL’s e-mail archiving allows end-users (or only admins) to restore anything from single messages to entire mailboxes. In the case of user-error or disaster, everything is recoverable.

SAC Capital: Dumping Data

According to the Wall Street Journal, two former hedge-fund managers from SAC Capital Advisors have been acting quite suspiciously lately – one even took his computer drives apart with pliers and deposited the left-overs in four different garbage trucks around NYC. In testimony, the offending manager, Donald Longueuil, explained in very colorful language that, “It’s all f—in’ ripped apart. Everything’s gone.”

That is one way to enact a retention policy.

Mr. Longueuil had been reacting to this WSJ article about a federal probe into insider trading. Now, there’s no way to tell how SAC Capital manages their electronic data, but I am sure that no compliance officer is happy when someone is ripping up hard drives by piece.

“When people frantically begin shredding sensitive documents and deleting computer files and smashing flash drives and chasing garbage trucks at 2 a.m. … it is not because they have been operating legitimately,” said Manhattan U.S. Attorney Preet Bharara.

This is a prototypical case of why companies cannot allow end-users to manage the retention of their data – they are allowed to break the law and destroy the evidence. Prosecutors will not be kind to such a poorly governed company. Already the government has been broadening the scope of the investigation into SAC and its partners.

In this case specifically, SAC Capital could have benefitted from e-mail and file archiving to ensure that they keep a copy of all business-relevant data from their computers. With this information they could have proven Mr. Longueuil to be an isolated manager who went off the reservation. Instead, they will be at the center of an expanded federal investigation.

Alaska needs ZL’s Unified Archive

Over 2 Years and Waiting

Alaska now has only a few months to find and release 25,000 pages of e-mails from former half-term Governor Sarah Palin and her administration.  So far, Alaska has taken over 986 days to collect and review records from the Palin administration that was in office for only 966 days, or just over 2.5 years.

The Delays with Finding E-mails

Recently, Alaska attorney general John Burns granted the 15^th extension for the request, but assured everyone that the new deadline is “firm.” He explained the reason for the delays:  “The Governor’s Office has responded to several other very broad requests for Governor Palin’s emails, including eight requests that required review of over 25,000 pages. Due to limitations of the state’s email system, just collecting the email records responsive to those requests took several months.” [Emphasis added]

The number of delays and extensions may be a record for FOIA requests. And, incredibly, the governor’s office asked that those who requested the records pay for their production. According to MSNBC, it will cost over $15 million dollars to get the documents.  Here is a breakdown from the Associated Press:

When the Associated Press asked for all state e-mails sent to the governor’s husband, Todd Palin, her office said it would take up to six hours of a programmer’s time to assemble the e-mail of just a single state employee, then another two hours for “security” checks, and finally five hours to search the e-mail for whatever word or topic the requestor is seeking. At $73.87 an hour, that’s $960.31 for a single e-mail account. And there are 16,000 full-time state employees. The cost quoted to the AP: $15,364,960. (And that’s not including the copying costs since they apparently have to print all documents in hard copy, review and then copy them for production).

This is appalling and frankly way out of line with typical e-discovery costs.  In fact, I am sure that the judges and e-discovery experts who drafted the Judge’s Guide to Cost-Effective E-Discovery would reject these cost estimates out of hand.  Alaska and other state governments should already be prepared to answer similar Freedom of Information Act (FOIA) requests in a responsible and timely manner. To take over 2 years and charging millions of dollars undermines the concept of a transparent government. And if it is true that the delays are brought on by the state’s inefficient IT infrastructure, then they need to talk to ZL.

ZL’s Unified Archive as the Solution

Using ZL’s Unified Archive, Alaska (or any other government agency) can search, find, and review e-mails from one platform in minutes.  Citizens and journalist will no longer have to wait years or be charged millions for access to information that should be readily available to them. They will be better able to hold their state governments accountable and, as we have seen recently in Egypt, a government which is truly accountable to its citizens benefits everyone.

2010 E-Discovery: A Year in Review

In 2010 we have seen many exciting changes to the e-discovery landscape. Metadata and social media have now become standards to be included in discovery requests. Litigation continued to rise in a lagging economy and the sanctions relating to e-discovery violations grew as courts increased awareness. The use of e-discovery tools have been extended for both regulatory compliance and internal investigation functions as well.

In response, corporations have begun to look into new ways to approach the e-discovery problem. First, they have reached out to create internal or external clouds for e-discovery. They have also incorporated archiving into their e-discovery process, a move which intimates the continuing trend of moving discovery in-house.

In 2011 we see similar trends coming to the fore. The incorporation of more data sources (including structured databases), coupled with more advanced analytics and outsourcing to the cloud for space and processing power will ensure that the year ahead will be a dynamic one. For our full 2011 projection check our 12 Important E-Discovery Trends for 2011 and Beyond published by eweek.com.

The Modern Archivist has found 2010 to be a year of tremendous growth, adding 4 contributors to keep on top of the latest e-discovery news and analysis. We look forward to continuing to provide relevant and useful information concisely, communicating what you need to know in the shortest possible time. We would like to wish you a very happy new year and we are excited to see you on the other side of 2011.

News Flash: e-Discovery Sanctions on the Rise

Okay, so maybe it isn’t shocking to learn that E-Discovery sanctions have risen every year in the past 10 years.  But it is surprising to find that the rise has been so great and that it continues regardless of aggressive attorney educational efforts and maturing technological solutions.

If you haven’t already seen it, last month the folks at legalworkshop.org published a thorough analysis of e-discovery violations throughout the past 29 years (yes, there was an e-discovery case in 1981). You can find the original post here.  According to the authors “ESI has played a more predominant role in pretrial discovery; producing parties have struggled to comply with ever-expanding and increasingly complex responsibilities. The liberal scope of discovery in federal courts, when coupled with ESI’s defining characteristics—high volume, broad dispersal, and dynamic nature—also confounds efforts to conduct discovery effectively and economically.”

We continue to see this played out in the courts and in the marketplace. The ruling in Qualcomm Inc. v. Broadcom Corp concluded that Qualcomm and its counsel failed to produce more than 200,000 pages of relevant electronic documents and was ordered to pay $8.5 million in legal fees. In the Victor Stanley v. Creative Pipe decision, intentional e-discovery mishaps nearly led to jail time and cost over $300,000 in sanctions.

A quick analysis of the data shows that written rulings on E-Discovery almost tripled between 2003 and 2004 – with a steady increase in each consecutive year and culminating in 2009 with 111 total rulings, 46 sanctions awarded and 12 adverse jury instruction sanctions. The rise of adverse jury instruction sanctions should be of particular concern for  defendants since it was found that the sanctions disproportionally affect them.  Indeed, since 2005, the courts have seen between a 1:5 to 1:3 ratio of plaintiff sanctions to defendants’.

With sanctions being given out at historic rates, it behooves legal counsels to take advantage of timely educational opportunities.  For

example, ZL is hosting a webinar next week, December 14^th, on Ethics in E-Discovery (sign up here) and another on 1/11 and 1/25 in January.

For more information click here.

In addition, in-house attorneys should re-evaluate their e-discovery software to see

if it can scale to match the incredible influx of documents and includes air-tight audit trails to prove the defensibility of all actions taken.  By combining education and the tools to properly address e-discovery, ZL aims to help all of our customers develop an unquestionably defensible e-discovery process.

Government Rewarding Whistleblowers and Effective Whistleblower Policies

A little publicized provision in the new Dodd–Frank Wall Street Reform and Consumer Protection Act, “…requires the Commission to pay an award…to eligible whistleblowers who voluntarily provide the Commission with original information about a violation of the federal securities laws that leads to the successful enforcement of a covered judicial or administrative action…”

In the end, the provision allows the commission to pay between 10 to 30 percent of any recovery over $1 million to whistleblowers who give original information of fraud. As the Wall Street Journal’s Law Blog points out, “It opens companies up to more scrutiny from the SEC, and will likely raise costs.”

Corporate compliance systems will be under increased scrutiny internally, as employees are given incentive to tell on their employers, and externally, from the SEC itself. It is of importance to develop a system to quickly conduct internal investigations and to develop a set of whistleblower policies conducive to such an environment.

An effective whistle blower policy will:

• prohibit employees from interfering with the right of another employee to blow the whistle
• prohibit employees from retaliating against an employee for having made a protected disclosure or for having refused an illegal order
• provide a procedure for raising a concern to the corporate legal department
• provide a procedure for filing and addressing complaints of retaliation for whistleblowing.

Once these policies have been enforced, it is then vital to implement a robust investigation process – a process which manages internal reports of fraud and investigations directed by the SEC itself. The ability to quickly launch a thorough investigation, to identify areas of risk or to take action against open cases, becomes increasingly important as scrutiny increases. The Dodd-Frank bill pushes to light the mandate to create an environment of corporate transparency – an order now directly from Washington.

Investigations can take months to complete – disparate data sources and an incomplete data map can make collection a logistical nightmare. By deploying ZL Technologies’ Unified Archive, enterprises can manage and search through all of their unstructured data (including email and file shares) from one platform. This cuts down collection from days or weeks to seconds. With the Unified Archive, responding to an allegation of misconduct has never been simpler.