The Modern Archivist

Megaupload Founder in More Trouble

By Benjamin Lee

Kim Dotcom, one of the founders of Megaupload.com, was arrested last week for his website that took away over 500 million from copyright holders and promoted online piracy. Dotcom is under fire once again for a ‘joke email’ he sent out two years ago that authorities got a hold of. Since Dotcom has a long track record of previous run-ins with the law, it comes as no surprise that authorities did not take his joke so lightly. In April of 2010, Dotcom sent the following out to his neighborhood watch.

Dear Neighborhood-watch,
As you all know I recently moved into the Neighborhood and I am a former hacker. Well I was just hacking into a local mail server and guess what I found.
First of all let me assure you that having a criminal Neighbor like me comes with benefits.
1. Our newly opened local money laundering facility can help you with your tax fraud optimization.
2. Our network of international insiders can provide you with valuable stock tips.
3. My close personal relations with other (far worse) criminals can help you whenever you have to deal with a nasty Neighbor.
In all seriousness: My wife, two kids and myself love New Zealand and ‘We come in peace’.
Fifteen years ago I was a hacker and 10 years ago I was convicted for insider trading. Hardly the kind of crimes you need to start a witch hunt for. Since then I have been a good boy, my criminal records have been cleared, and I created a successful Internet company that employs 100+ people.
All the media has to report are old news. Why? Because I have chosen to avoid the media. Just look what the media did to this Neighborhood. Scary.
Now you can make a choice: 1: Call Interpol, the CIA, and the Queen of England and try to get me on the next plane out of New Zealand. 2: Sit back, relax and give me a chance to do good for New Zealand and possibly the Neighborhood.
If you feel like it come over for coffee sometimes. And don’t forget to bring the cocaine (joke). All the best, Kim.
The Guardian

Though I found the email humorous, neighbors did not, reporting that it “scared the hell out of everybody”. Dotcom may have had the right intention in trying to ease his neighbors’ worries, but he can only regret sending that email now, as it alludes to his past criminal behavior and possible current drug use. This email was sent almost two years ago, and Dotcom probably thought nothing would come of a harmless email. Boy, was he wrong!

More and more companies are investing in email archiving solutions, as they help litigation processes run more smoothly, provide a clearer picture to trials and cases, and save time and money! This is bad news for people like Dotcom, but good news for everyone else in the world.

I spam, you spam, we all spam for more spam?

By Benjamin Lee
It was announced today that the average number of promotional email campaigns sent by top retailers to subscribers reached an all-time high this past year. “Retailers sent each of their subscribers 177 promotional email campaigns on average last year, up 16% from 2010,” said Chad White, Research Director at Responsys, who tracks the email marketing activity of hundreds of the top retailers. “Since 2008, the average number of promotional email campaigns sent by the top retailers to each of their subscribers has risen 51%.” But it isn’t just marketing emails and general spam that has been continually increasing at an exponential rate; the usage of email in general has skyrocketed.

While email usage may have started out as a casual means of communication, it has recently transformed into the lifeblood of most organizations and serves as the primary mode of communication for almost all businesses. In an increasingly paperless world, emails have replaced written memos as a standard business record, and transferring files in the form of attachments have become commonplace. This coupled with the increase in spam and marketing promos have employees’ inboxes cluttered, hitting email storage restrictions faster than ever before.

So what can companies do for relief from the steady stream of spam? Investing in an email archiving solution can alleviate the pains of spam by providing the following benefits:
-reducing the load on the company’s mail server
-enable users to self-restore any deleted email from backup
-maintain an archive of all email, which can be easily searched for compliance or eDiscovery
-save time for employees as they no longer need to organize their inboxes

Times are changing, and it is up to you to keep up with the ongoing trend of increasing email and spam levels. Email archiving solutions represent a viable solution to meet most of these ongoing demands.

Havana Bar Brawl? Nope, just sanctions!

By Elle Byram. Esq., CEDS

It’s not too often that you see a case in which both the plaintiff and the defendant receive sanctions for spoliation. This is exactly what happened in Patel v. Havana Bar, Restaurant and Catering, 2011 WL 6029983 (E.D. Pa. 2011). The case arose from injuries sustained by plaintiff when he fell from a second floor balcony at an engagement party in the defendant’s bar. Both parties, perhaps one more egregiously than the other, spoliated evidence.

Defendant, who routinely recorded video surveillance of the bar, and which was recorded on the night of the injury, failed to preserve the video. The surveillance system was programmed to record over the existing footage every three weeks. Defendant, claiming that he attempted to prevent the footage from the night of the accident being erased, was unsuccessful in such attempts.

The plaintiff’s part appears to be substantially more egregious. About a year after plaintiff was injured, plaintiff’s sister-in-law sent a Facebook email to the engagement party guests to request a statement of what they witnessed that evening. However, her email requested that the guests state that plaintiff was not intoxicated at the time of the fall and that he is “a hyper guy who acts all wild and crazy without being drunk… .” No statements from this request were ever produced to defendants. Two years after this email, plaintiff’s sister-in-law again requested statements, but because the direction of the case had changed, her request sought statements indicating that plaintiff was in fact drunk.

Note that reading the sister-in-law’s emails sent to the guests requesting their statements is painful. No attorney ever wants a written word requesting evidence to be tailored to the outcome you desire.

Defendant knew nothing about either of the emails requesting statements or the purported statements until one of the plaintiff’s witnesses was deposed and admitted to sending a statement to plaintiff. Despite this admission and defendant’s subsequent requests to plaintiff to produce the statements, no statements from the first email were produced and only 16 of the 20 from the second email were produced in a piece-meal fashion. The court found plaintiff spoliated evidence as well.

The result of both parties’ spoliation: an adverse inference sanction was granted for defendant’s spoliation of the video and for plaintiff’s spoliation of the statements from the earlier email request. Plaintiff was also sanctioned for defendant’s costs for the original requests for production as well as re-deposing witnesses.
And so the lessons to be learned? Make sure you halt routine destruction of evidence. This cannot be emphasized enough. Additionally, if you are advising your clients on a suit, don’t let them create evidence that could impact the case. It should go without stating that you should not let your witnesses fabricate evidence either, but it never hurts to remind some attorneys.

Should more artists perform document review?

By Elle Byram. Esq., CEDS

I was excited to read a recent blog by Greg Bufithis that connected neuroscience, and yes, e-discovery. In an earlier career, I pursued neuropsychology. Long before the electronic discovery days I must admit. But I’ve never lost my fascination for the power of the brain. When I saw Greg’s blog I felt a little tinge of excitement.

In the blog, Greg references a discussion he had with a neuroscientist about e-discovery, algorithms and predictive coding. The neuroscientist explained that when humans change their minds, those changes are generally based on heuristics, those “ah-ha” moments where the brain connects-the-dots as we are being told a story. Heuristics generally happen in the right side of the brain. Most of us recognize this as the artistic side. The other side, or the left side, is the logic side, which is less frequently deployed by the human brain when we change our minds.

This of course begs the question, should artists, who are legal folks’ right-brained brethren, actually be doing document reviews? I would venture a guess that the answer most often will be no. And, I highly doubt too many artists would leap on the opportunity to sit hour-upon-hour, week-upon-week plastered in front of a computer merely to review some of the most tedious communications in existence. (Sigh. And what was wrong with me when I chose to sit behind the computer and week-upon-week review mind-numbingly dull documents. Alas.)

Notwithstanding, over the past few years, many e-discovery professionals have been searching for new technologies pushing predictive coding, which uses algorithms to assist with e-discovery review. For at least one obvious reason, it’s certainly received quite a splash: those mind-numbingly dull reviews produce frequent errors that have on occasion had serious consequences. This of course is not to say that technology doesn’t produce errors, especially with technology that is in its infancy. However, it seems that technology may be winning over the human reviewer, not just in accuracy, but in speed and cost. And, it appears that it’s winning by overcoming some of the weaknesses of the human brain in e-discovery reviews.

Greg’s blog goes on to mention that perhaps the key, which seems to be what some of the predictive coding technologies are attempting to crack, is to allow algorithms – i.e. logic – to change the way the human mind makes decisions. By providing a formulaic approach based on a small sampling of data, predictive coding can provide the reviewers with specific information about what is being reviewed. This will in turn allow the reviewer to make even more accurate logic-based decisions resulting on a more effective review.

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.