eDiscovery Readiness for Government

JUNE 8-9, 2010

eDiscovery, Records Management, and Information Governance for Defense and Federal Agencies

Sponsored by the Journal of Legal Technology Risk Management

When it comes to the electronically stored information (ESI) of your organization, do you know what you have, where it is and how to access it when necessary?

The explosion of ESI has resulted in the overwhelming challenge of records management and information governance. Throughout the Federal Government, records managers are struggling to keep up with the amount of ESI and use the most economical, efficient, and reliable means for creation, retrieval, maintenance, preservation, and disposition of electronic records in any media.

Building a foundation for proactive records management and eDiscovery readiness is a huge undertaking, requiring the cooperation of legal, information, technology and business offices across the Federal Government. The 2010 eDiscovery Readiness For The Federal Government Training Conference will help you to get a handle on your records management and leave you better prepared for potential litigation.

At this conference you will:

• Gain new insights for setting up an effective e-records management program
• Hear about best practices for getting senior-level buy-in and collaboration between offices
• Discover what hasnt worked to save valuable time and resources
• Examine technology solutions that fit within your budget
• Understand the costs and benefits of being prepared for litigation
• Take the first steps in getting compliant Freedom of Information Act, the Federal Records Act and the guidelines set by the National Archives and Records Administration (NARA).

]]> http://www.ltrm.org/2010/03/07/event/feed/ 0 http://www.ltrm.org/2010/02/04/2009-issue-41-the-mobile-challenge/ http://www.ltrm.org/2010/02/04/2009-issue-41-the-mobile-challenge/#comments Fri, 05 Feb 2010 03:01:05 +0000 Daniel Garrie http://www.ltrm.org/?p=379

The Journal of Legal Technology Risk Management is pleased to announce that Issue 4:1, “The Mobile Challenge: Technology Risk Management in the Wireless Industry” and Issue 4.2, “International Finance and Financial Regulation” are now available.

The Mobile Issue is focused on the legal issues and challenges facing the mobile industry, from VOIP (on mobile phones) to information security. The Financial Issue – which is being published although one article is forthcoming – focuses on statistical considerations that courts face and the financial regulatory system.

ISSUE 4.1 and ISSUE 4.2 – AVAILABLE HERE

A dollar saved is a dollar earned. The costs of third-party technical and legal experts add up and the potential impact to the business is sizable, with the sky being the limit. See Sean M. McNee, Productivity as a metric for visual analytics: reflections on e-discovery. It is important to realize that the costs of getting, saving, searching and producing vary respective to the number of documents at issue. See J DeBono. Preventing And Reducing Costs And Burdens Associated With E-Discovery: The 2006 Amendments To The Federal Rules Of Civil Procedure, 59 Mercer Law Review 963 (Spring 2008). This means that if a company implements a solution in-house, one that synchronizes the document retention schedules with the systems, achieving control of the information that is stored and archived, the costs can fall as far as the number of documents retained.

Buying and executing an in-house solution is not always a simple feat. It requires collaboration and energy from the legal, technology, and business stakeholders to be successful. However, buying it certainly gives a company substantially more control over the costs associated with responding to a regulatory investigation, judicial case, or any document intensive production process.

While it is important not to discount the utility of outsourced solutions, when the proverbial fact pattern of the case requires, such solutions can be costly and result in a dependency on the vendor and a relinquishment of control over information and legal-business autonomy for an organization. Of course, bringing electronic discovery in-house requires an investment, but looking past a single quarter of earnings, an in-house solution can provide organizations with substantial tangible benefits year-after-year.

Renting a house is simply not as cost effective as buying it (discussing the tax benefits of buying a house v. renting are beyond the scope o this discussion). The technology benefits realized by buying instead of renting electronic discovery solutions vary by company. The benefits might include reduction in storage costs and/or better implementation of strategic storage initiatives; increase in data security; better responsiveness to requests for electronic information and possibly even happier workers. The savings, while difficult to quantify in a general way, can range from the thousands to the millions annually.

One other key point is how often do you obtain a great deal when the seller knows the buyer has a pressing timeline? When you have the functionality in-house, the costs around the electronic discovery process are certainly more predictable. For example, a company that does not have an in-house solution might find itself paying a substantial premium because the supply of competent document review companies cannot meet the demand, skewing the price curve for the point in time. A company that has an in-house solution can predictably control the costs and scale up and down as appropriate without paying substantial premiums. A services vendor who has already made commitments to other customers is in no position to cut you a better price, so keep this all in mind when you are under tight time constraints.

I welcome any comments or additional discussion or points around this benefit v. burden of buying a solution and brining the functionality in-house.

How to calculate the total cost of electronic discovery?

Companies seeking to deploy electronic discovery (electronic discovery) solutions could benefit substantially by gaining visibility into the cost associated with the life of an email message–from an individual’s machine to the courthouse. This visibility into the cost can provide companies with concrete dollar values to quantify the specific value proposition respective to deploying electronic discovery technologies that address e-mail discovery, of course an organization can expand this calculation beyond email.

Recently, I presented at a CIO Round Table, hosted by Comport Consulting (http://www.comport.com). It was evident that enterprises have minimal visibility into the discovery legal-technology cost structure. No one in the attendee group was able to provide actual dollar costs of email from birth to trial. I wager that this is not unique.

Many vendors claim that their solution delivers substantial savings but, I think that the complexity of the people, process and technologies each company deploys makes these saving projections circumspect. Some vendors offer rudimentary cost assessments at no charge, but generally the models they deploy are simplistic. Arguably, these free assessments dilute the value of the complex mathematical models that calculate discovery cost metrics.

Organizations that acquire visibility into the cradle to court cost breakdown arm themselves with invaluable data with which they can measure the effectiveness and cost-benefit of technologies, which can then be used to assist IT, legal and business stakeholders to ascertain the business value of investment in technologies that support their internal electronic discovery.

How to lower your legal operation costs by owning your data and applying common sense?

Stephen Breyer, a justice on America’s Supreme Court, recently expressed concern that, with ordinary cases costing millions just in e-discovery work, “you’re going to drive out of the litigation system a lot of people who ought to be there” so that “justice is determined by wealth, not by the merits of the case.” While the common American citizen arguably will be priced out of the justice system, I think that many corporations both big and small face similar problems.

The costs of discovery are high and technology might lower some of the costs, but the real solution requires action before litigation. A real solution mandates that companies control the information they create and responsibly manage it from inception to termination. Most companies lack strong information management process and underlying technologies. Corporations that have the technology and process still must transform the behavior of the employee.

What do I mean? Well, if an employee has no reason to think before sending an e-mail, why would they think? Imagine, if you audited a dozen (12) of your employees for compliance with the signed digital information management policies set-forth in your handbook and then circulate an e-mail firm wide stating that x%, which I would wager that over 50% failed, you would see a direct connection made between what I send and my job. It seems to me that it is not really the legal system that is growing out of control, but rather the ancillary costs around litigation are making it so costly, which are driven in part by a failure to take information management responsibility.

Organizations that calculate the total cost of review per-litigation matter, I believe will realize rapidly that the legal operation costs fall largely in having to manage the deluge of digital information. Hopefully, this realization sets off a chain reaction where they realize that less information equals less costs, and begin to actively engage technology, legal, business, and risk stakeholders to come up with a pragmatic solution. What is a good business reason to pay a third-party company to search, preserve, and produce information that your IT team maintains, secures, stores, and manages on a daily basis? Run the numbers! What if you had less information to review? What if you had an internal team to search, preserve, and produce the information to outside counsel? Calculate these savings internal to your company.

Google https://event.on24.com/eventRegistration/EventLobbyServlet?target=registration.jsp&eventid=116574&sessionid=1&key=7D0FA59A44C3BDDBFFFA3C077EADB033&partnerref=web&sourcepage=register Of course, the average litigant seeking justice confront serious fiscal imbalance any time they are looking at litigation, and these additional costs certainly will not make it any more equitable.

Daniel B. Garrie, Esq. has a B.A. and M.A. in computer science and is an e-discovery neutral and special master with Alternative Resolution Centers, available internationally. He can be reached at (310) 284-8224 or (800) 347-4512 and at DGarrie@fsrdg.com.

One question that was raised during our presentation was, “Is the EDRM model outdated, based on the technology toolsets currently available?” This question inspires another question, “Is the EDRM model, so heavily relied on, hampering the evolution and delivery of the techno-legal solutions that enable the market to evolve?”
Depicted above is the traditional electronic discovery model that a great number of vendors use to position their products in the marketplace. The IQPC attendees suggested that perhaps In-house counsel , the people on the front lines, can use technologies that collapse the identification, preservation, collection, and first pass review into a single step enabling “early case assessment” and allowing them to achieve substantial cost savings.

While my personal position on this question is still evolving, I certainly feel that the attendees raised valid points. It is beyond refute that organizations that acquire the ability to seamlessly identify, preserve, collect, and review when seeking to establish the specific facts relating to a particular issue potentially place themselves in a stronger legal position.

Irrespective of the legal benefit, it is clear to me that if In-house legal departments could achieve visibility into the “creation-to-court” cost of information it would be easy to measure the effectiveness and cost-benefit of e-Discovery technologies. In addition to the business benefits, the same information could be presented to the court to support cost shifting arguments. With this information, the courts could make more informed findings on shifting costs.

I welcome comments and thoughts about the legal process and technology–especially thoughts related to the questions, “Has technology evolved beyond the confines of the EDRM model?” and “Is there monetary and/or legal value in having email creation- to-court cost breakdowns?” and “Can this cost be calculated?”

Daniel B. Garrie, Esq. has a B.A. and M.A. in computer science and is an e-discovery neutral and special master with Alternative Resolution Centers, available internationally. He can be reached at (310) 284-8224 or (800) 347-4512 and at DGarrie@fsrdg.com.

Keynote: Seymour Hersh.

Join journalists, scholars, and policy makers to examine how the US government and other institutions distort or otherwise affect flow of information. What limits safeguard our democracy and which erode it?

Enquiries: socres@newschool.edu

Web address:  http://www.socres.org/limitingknowledge/
Sponsored by: Social Research conferences, The New School

Nonetheless, the impact of e-discovery on business is difficult to quantify.  Companies should attempt to quantify the e-discovery costs today to determine the true costs. In performing this calculation, it is critical that companies factor in the people burden. Especially the indirect costs that result from the loss of business revenue or decreased job satisfaction. The costs can extend beyond the e-discovery fees for a particular case. Companies should recognize that diverting critical recourses and decreased job satisfaction impacts the overall bottom line.  Employees involved in the e-discovery production, review or analysis process in an as needed bases, will clearly limit the time and energy they can invest in their core duties.  In some cases, companies have implemented in-house e-discovery teams, but unfortunately more often than not the team is not provided with the necessary recourses to deliver real savings to the company.

Most solutions do not require a company to outlay millions of dollars. Most of the time, a solution hinges on a mixture of some good old fashion common sense on defining the approach a company takes to handling e-discovery factoring in the technology, business and legal needs of a company. .  A company that is able to establish internal policies and business processes with the requisite technologies can reap substantial cost savings – which I am sure you can request from one of the many e-discovery vendors.

Moreover, a company that can efficiently and effectively respond to e-discovery requests is minimizing the disruption to the business mission, which means that the focus will be on generating profits and not dealing with e-discovery issues. While e-discovery is becoming the cost of doing business, the amount it costs varies greatly on these and other factors.

Here, it is not necessary to get it 100 percent right the first time. It is key nonetheless to get the ball moving and iterate – learning from your mistakes and your peers.  The end result, perhaps not immediate, is that a company can lower the cost impact of unwelcome e-discovery requests and be assured that the focus is on making money.

Companies that are e-discovery prepared are rewarded. Why? E-discovery companies just like companies that charge two times the amount for a venue when they learn a couple needs it for their wedding, e-discovery and forensic firms charge substantial fees for a “rush job.”  In addition, prepared companies avoid the internal e-discovery learning cost curve.

Given the American legal mantra: the better you do in business, the more likely it is you get sued, and, the Code of Civil Procedure, modified to address e-discovery, it is more likely than not that a company doing business in California will face the e-discovery cost conundrum sometime in the near future – in state or federal court.

Companies that fail to face these e-discovery issues can incur substantial expenses to their company or, in the case of outside counsel, to their client. Adjoining the additional costs is the reality that counsel can potentially endanger a case, irrespective of the underlying merits, which is reflect at both the state and federal level.

Daniel B. Garrie, Esq. has a B.A. and M.A. in computer science and is an e-discovery neutral and special master with Alternative Resolution Centers, available internationally. He can be reached at (310) 284-8224 or (800) 347-4512 and at DGarrie@fsrdg.com.

The Berkman Center for Internet & Society is currently accepting applications for our 2010 summer internship program.  We’re looking for bright students to join our team for ten full-time weeks of exciting research and shared exploration.

Information about the summer program, participant eligibility, and application instructions can be found below and at http://cyber.law.harvard.edu/getinvolved/internships#summer.  The application deadline is March 5, 2010.

As always, please pass this along to individuals or relevant lists where the next Berkman summer interns may see it!

All best,
Becca
—

Summer Internship Program 2010

For 10 weeks each summer The Berkman Center for Internet & Society at Harvard University swings opens the doors of its big yellow house to welcome a group of talented, curious, and energetic full-time interns who are passionate about the promise of the Internet and issues related to media and journalism, civic engagement, policy, identity and privacy, education, technology, the developing world, law, and more. The interns team up with Berkman projects like Herdict, Cooperation, Digital Natives, Law Lab, Internet & Democracy, or the OpenNet Initiative, where they have an opportunity for deep and substantive involvement in project operation.  Performing topic-based research; drafting and editing blog posts, papers and other written outputs; conducting outreach, developing partnerships, and maintaining relationships; exploring project and research design; and undertaking academic responsibilities of all kinds both independently and collaboratively are part of the Berkman summer intern experience.  Specific tasks and experiences vary depending on interns’ skills and project needs.

In addition to contributing to project based work, summer interns participate in special events and lectures with Berkman faculty and fellows, engage each other through community experiences like the weekly interns discussion hours, and each year innovate for themselves new opportunities for fun and learning, like organizing debates, producing podcasts and other media outputs, and hosting book clubs and cookoffs (!).

The word “awesome” has been thrown around to describe our internships, but don’t take our word for it. Zack McCune, a summer intern from 2008, had this to say: “it has been an enchanting summer working at the berkman center for internet & society.  everyday, i get to hang out with some of the most brilliant people on the planet. we talk, we write (emails), we blog, we laugh, we play rock band. and when things need to get done, we stay late hyped on free coffee and leftover food. it is a distinct honor to be considered a peer among such excellent people. and i am not just talking about the fellows, staff, and faculty, though they are all outstanding. no, i mean my peers as in my fellow interns, who are almost definitely the ripening next generation of changemakers.”

Eligibility:
* Internships are open to students enrolled across the spectrum of disciplines;
* Internships are open to students at different levels of academic study including undergraduate, graduate and PhD. programs;
* Summer interns do not have to be affiliated with Harvard University;
* We welcome summer interns from universities across the world, however we can not pay international students who have not yet received an undergraduate degree.

Time Commitment: Summer internship positions are full time (35 hours/week), and the summer program runs for 10 weeks from June 1 to August 15.

Payment: Interns are paid $11.50 an hour.  Please be forewarned that stipends may not be sufficient to cover living expenses in the Boston area. No other benefits are provided, therefore interns must make their own housing, insurance, and transportation arrangements.

To Apply: We know what you’re thinking. Yes please. I want that. That sounds magical. Did I mention I’m really good at “Rock Band”?

Here’s what you should do…

Law Students
If you are interested in working with the Cyberlaw Clinic over the summer, please read and follow the application instructions outlined here.
If you are interested in working with the Citizen Media Law Project over the summer, please read and follow the application instructions outlined here.

Students from other disciplines
To apply for a summer internship position, please send
* a letter of interest describing your skills and interests, and indicating the area of research and the Berkman projects in which you have interest;
* a current version of your resume; and
* the contact information for two references (professional or academic)

to Berkman’s community coordinator, Becca Tabasky, at rtabasky@cyber.law.harvard.edu.

The application deadline for Summer 2010 is 11:59 p.m., ET, Friday, March 5, 2010.

The federal courts emphasized that document requests balance the cost-reward ratio and rest on some demonstrative basis for the request beyond gut instinct. <I>See e.g., Ford Motor Co. v. Edgewood Props., Inc., 257 F.R.D. 418 (D.N.J. 2009) (should requesting parties fail to make a demonstrative showing that opposing counsel acted in either a purposeful or negligent manner in withholding documents, the court will deny the requesting party demand – weighing the reasonableness of the demand against the cost.); <I>William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 2009 WL 724954 (S.D.N.Y. Mar. 19, 2009); <I>Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008).

Common sense rules are also in state courts. For instance, when a litigant directly violates a court order to produce their laptop by using wiping software to delete potentially relevant data, sanctions will be issued.  <I>See Oz Optics, Ltd. v. Hakimoglu, 2009 WL 1017042 (Cal. App. Apr. 15, 2009) (Unpublished).  Counsel in receipt of a litigation hold, or certainly a court order, should advise their client to comply and provide guidance on compliance where necessary to avoid negative results and sanctions.  <I>See e.g., Qualcomm Inc. v. Broadcom Corp., 2008 WL 4858685 (S.D. Cal. Nov. 7, 2008); Keithley v. Home Store.com, Inc., 2008 WL 3833384 (N.D. Cal. Aug. 12, 2008); R & R Sails Inc. v. Ins. Co. of Pa., 251 F.R.D. 520 (S.D. Cal. 2008); In re Flash Memory Antitrust Litig., 2008 WL 1831668 (N.D. Cal. Apr. 22, 2008)(discussing importance of counsel’s role in execution of preservation dollars).

This is not to say that the massive amount of information created and stored by an organization does not present an operational challenge to the legal and technology and potential e-discovery risks when a response to a discovery request comes via the courts or administrative agency.  In 2009, the case law and stories reported demonstrated that a great deal of e-discovery headaches arise from the copious amounts of unstructured and unmanaged electronically stored information.

Arguably, legal fees have not grown a great deal in proportion to the amount of data being requested, reviewed and produced.  Clients should realize that greater cost savings can be achieved by focusing on addressing the issues of controlling the amount of information existing within an organization.  While anecdotal, the case law and conversations with my peers, suggest that a clients inability to control their data escalates the costs of e-discovery and not the legal fees.   Effectively less information results in a proportional reduction in the amount of information that is reviewed for legal matters when examined over an extended period – information being defined uniquely for each company and assuming that the systems captures all relevant content.

Counsel should seek solutions that transform an e-discovery request from an unwelcome pressure point to a demonstration of the organization’s capability to marshal its enterprise content with minimal disruption to ongoing business operations.

The coming year will certainly be a big one for e-discovery as the Supreme Court will hear the 9th Circuit’s decision in Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008). It is foreseeable that the Supreme Court may elect to use this case to shape privacy rights of U.S. citizens and weight in on the scope of e-discovery. Below are a couple of good axioms lawyers, for big or small companies or firms, might want to apply in 2010 when dealing with e-discovery.

“Trust but verify” It is important that counsel inquire whether cases cited to by vendors in a white paper or presentation have been shepardized, requesting a copy of the case where appropriate. Vendors can unknowingly cite to case law that is no good, or broadly reference and apply cases limited to a unique set of facts. Trust and verify equally applies to counsel’s dealing with in-house information system managers and information custodians – it is rare that the first answer is the complete answer.

“Use it or Lose it”: “Does a vendor eat their own dog food,”asks whether the vendor uses  its own product. If a vendor does not, this should raise a red flag.

It was a watershed year for e-discovery and 2010 is likely to be even more telling.

Daniel B. Garrie, Esq. has a B.A. and M.A. in computer science and is an e-discovery neutral and special master with Alternative Resolution Centers. He is on the Board of Advisors to Digital Reef Inc. and was named 2009 Top Neutrals as an Up and Coming Star. He can be reached at (310) 284-8224 and DGarrie@fsrdg.com.

International Journal of Peace and Development Studies

www.academicjournals.org/IJPDS

Call  for  Paper

Introducing ‘‘International Journal of Peace and Development Studies‘‘

Dear Colleague,

The International Journal of Peace and Development Studies is a multidisciplinary peer-reviewed journal published monthly by Academic Journals (www.academicjournals.org/IJPDS). IJPDS is dedicated to increasing the depth of research across all areas of the subject.

Editors and reviewers

IJPDS is seeking qualified researchers to join its editorial team as editors, subeditors or reviewers. Kindly send your resume to ijpds.journal@gmail.com.

Call for Papers

IJPDS  welcomes the submission of manuscripts that meet the general criteria of significance and scientific excellence in this subject area, and will publish:

• Original articles in basic and applied research
• Case studies
• Critical reviews, surveys, opinions, commentaries and essays

We invite you to submit your manuscript(s) to ijpds.journal@gmail.com for publication in the Maiden Issue (February 2010). Our objective is to inform authors of the decision on their manuscript(s) within four weeks of submission. Following acceptance, a paper will normally be published in the next issue. Instruction for authors and other details are available on our website; http://www.academicjournals.org/IJPDS/Instruction.htm

IJPDS is an Open Access Journal

One key request of researchers across the world is unrestricted access to research publications. Open access gives a worldwide audience larger than that of any subscription-based journal ad thus increases the visibility and impact of published work. It also enhances indexing, retrieval power and eliminates the need for permissions to reproduce and distribute content. IJPDS is fully committed to the Open Access Initiative and will provide free access to all articles as soon as they are published.

Best regards,

Omadoye Ochuko,

Editorial officer

International Journal of Peace and Development Studies (IJPDS)

E-mail: ijpds.journal@gmail.com, IJPDS.ACADJOURN@GMAIL.COM

www.academicjournals.org/IJPDS

Check them out – and if you feel like one is a match, please apply!