CHAPTER 7: TECHNOLOGICAL IMPACTS – E-Discovery and the Federal Rules of Civil Procedures

CHAPTER 7:
TECHNOLOGICAL IMPACTS

Technology has both the potential to hinder and to improve E-Discovery efforts. The following sections explore discovery-related issues with existing technologies, the characteristics of commercial products in the E-Discovery space, and technologies that build a solid foundation for effective E-Discovery processes going forward.

Discovery-related challenges with existing technologies

E-mail

E-mail is the number one type of record requested to support legal or regulatory inquiries.19 Based on its volume, lack of structure, and distributed nature, it is also one of the most challenging record types to deal with from a discovery perspective. End-users often have the ability to manipulate their own mailboxes, which can make the enforcement of litigation holds a challenge. End-users also often have the ability to archive e-mail locally, which makes centralized enforcement of automated destruction routines difficult. But because of the prominence of its use in litigation today, this is often the first place that

19 John McKnight, ‘Digital Archiving – End-User Survey and Market Forecast: 2006-2010’, Enterprise Strategy Group (ESG), March 2006.

organizations go when implementing E-Discovery tools and processes.

Instant messaging

Except for some nuances unique to the technology, instant message transcripts should be treated no differently than e-mail messages. The same requirements for retention, litigation holds, search and extraction, review for privilege, and production apply. One of the major differences between e-mail and instant messages from an E-Discovery perspective is the heightened risk of finding damaging information within instant messaging conversations. Because of the real-time interactive nature of instant messaging, people have a tendency to say things in a chat session that they would be less comfortable including in a store and forward medium such as e-mail. Unfortunately, these can and often are embarrassing to the end-user’s employer in litigation.

PDAs and smart phones

As PDAs and smart phones become increasingly pervasive and technologically more capable, the challenges they present from an E-Discovery perspective will continue to grow. The good news is that most existing PDAs and smart phones only store copies of end-users’ e-mail and documents, so as long as the original document resides on a file or e-mail server under the IT department’s control there is little chance of the permanent loss of that data. The bad news is that, as the capabilities of these devices increases, more and more work will be done on them exclusively and the IT department will have a more difficult time of keeping track of and managing the documents stored on them.

Commercial E-Discovery products

Despite vendor claims to the contrary, most of the risks associated with IT facilitation of E-Discovery are people and process driven issues and can be mitigated to a great extent without a substantial investment in new technology. That being said, technology does exist to help organizations search, cull, preserve, and present electronically stored information. These technology solutions generally fall into one of two categories:

• Those created by traditional storage and document management vendors – for example, EMC, HP, FileNet, and Symantec. The majority of organizations are looking at these vendors since they have already made a significant investment in their products.

• ‘Pure-play’ or E-Discovery specialty players – for example, Clearwell Systems, Index Engines, Kazeon Systems, Recommind, and Reconnex.

Each vendor typically attacks one slice of the problem well. One system may work well for instituting litigation holds but does a poor job of searching and culling information. Some specialize in searching online information but are not effective at searching offline information (ie, back-up tapes). So, as with any technology product category, what works best for each individual organization depends a lot on the characteristics of that organization and how it ranks the importance of each feature in its evaluation. To assist organizations with choosing an E-Discovery product, a product evaluation checklist has been included in Appendix 2 (see page 56).

Foundational systems

It is extremely difficult to apply E-Discovery processes in an organization if it has little or no ability to manage its electronic information in the first place. Investments in the following technology categories can provide significant benefit to an organization’s E-Discovery efforts by creating order from the chaos:

• Electronic archival and search products: These systems help organizations capture, archive, and retrieve e-mail messages, attachments, and instant messaging transcripts.

• Information lifecycle management (ILM) systems: These systems align the treatment of information (its location and disposition) with its value to the organization and with the organization’s records management policies.

• Enterprise content management (ECM) systems: These systems capture, manage, store, preserve, and deliver content and documents related to organizational processes. They are focused on the management of unstructured information.