The old tried and true collection processes are often flawed, resulting in inaccurate data that creates discovery risk in the courtroom. Today the problem of providing inaccurate data is on the rise. A recent analysis of cases prior to 2010 by King and Spalding found there were more eDiscovery sanction cases and awards in 2009 than in any prior year. In fact, there were more eDiscovery sanction cases in 2009 than in all years prior to 2005 combined. The report also found that failure to produce ESI was the most common basis for sanctions. This has paved the way for new technology innovations for better eDiscovery collection.
The pitfalls common with traditional approaches to ESI collection include; dates changed due to indexing translation, content being overlooked from file-level versus bit-level discovery, even the disappearance of entire emails and files due to faulty restoration processes. Therefore, it is imperative that the discovery team works closely with IT to ensure your company maintains a sound and defensible collection strategy. There are four major identification and collection areas that should be reviewed when collecting Electronically Stored Information (ESI). These strategies include:
IT and legal must work closely together. Initially it is imperative that IT and legal work closely to look at the current online network data. IT is aware that deleted emails are recoverable from an Exchange server. And most often, the most untampered source for email collection is email residing in offsite storage, typically on backup tapes. In the past, legacy backup tapes were often overlooked because it was historically difficult and expensive to collect data from them.
Be proactive with legal requirements. Get ahead of the curve by proactively managing legacy data. Know what data should be kept and what can be purged. By determining this, a company can develop a policy to save specific content so that is identifiable and ready for on demand discovery. This is the first step in a proactive strategy.
Understand the limitation of technology. Knowing the limitations within your technology platform is critical to your success. Only use tools that index all the content and don’t change any of the metadata. Understand how duplications are defined and whether the metadata is modified. Some of the older search solutions compromise the indexing process, which will affect the outcome of your discovery.
Become a discovery expert. New technology is able to improve and strengthen the discovery process. New technology can search out a single email without duplicating the original environment. It is possible to make tapes searchable by creating an index in the cloud for review. Then the bit of data that is requested can be pulled with very little effort, expense or time. With less than 5% of old legacy data being relevant, today’s new technology eliminates the unnecessary process of restoring and then rebuilding the data.
For more information on electronically stored information and the strategies and techniques that make ESI more collectible contact Index Engines.
Once again Index Engines had a strong showing in NY at LegalTech 2011. With an enticing announcement around our new cloud-based tape discovery service, as well as a partnership announcement with LeClairRyan, our booth was hopping.
On the first day of the conference we were visited by the litigation support team from a global energy firm. They approached us and quickly stated, “Thanks for killing the burden argument!” We spent some time with them discussing our automated approach towards identification and collection of previously difficult to access ESI, specifically data residing on backup tapes. They understood the impact Index Engines technology has had on the market, and how the courts’ knowledge of this technology has served to erode the burden argument around this previously inaccessible media.
Ironically, on the second day we were presented with a contrasting opinion. A second global energy firm approached our booth and staunchly maintained the validity of the accessibility argument. They stated that their legal counsel has instructed them to not perform any discovery of legacy data residing on backup tapes. They basically hide behind the burden argument and are hoping to not face a litigator familiar with Index Engines direct indexing technology. Ignoring the impact of technology is a risky proposition. Technology moves forward and changes the game. Not acknowledging this exposes organizations to potential fines and sanctions when identifying and collecting ESI.
It was interesting and surprising to see the wide spectrum of attitudes about technology and litigation support – especially within the same vertical industry. Some organizations are sticking their heads in the sand and hoping to maintain the status quo, while others are getting proactive and mitigating their risk. Given that eDiscovery sanctions have reached an all time high it would seem that denial about eDiscovery and the courts opinions on it are clear. Revisiting the naysayer’s opinion of the burden argument at LegalTech 2012 promises to be very interesting.
Index Engines will be exhibiting at LegalTech NY in booth #2119. This event has traditionally been one of the most important legal technology conferences on the East Coast. This year’s conference topics are scheduled to range from “Compliance & Risk” to “Technologies Transforming Litigation Technology”. Contributing to the transformation theme, Index Engines will be making two major announcements at the LegalTech NY show next week.
The first will be the introduction of Index Engines Cloud-based Tape Discovery Service. This service will allow clients to virtually search the content of their backup tapes and choose the relevant content for extraction. Starting at $50 per tape, this easy and affordable use of the Index Engines market leading direct indexing technology is bound to change how the industry approaches tape discovery.
The second announcement at LegalTech will unveil Index Engines partnership with LeClair Ryan. This partnership will be the basis for the new Legacy Data Risk Management Practice at LeClair Ryan. Clients engaging with this LeClair Ryan practice group will be guided on a defensible methodology that leverages Index Engines automated approach for tape remediation.
To learn more about these announcements and to see an demo of the new Index Engines interface as reported on by Sean Doherty in the LTN LegalTech preview article What’s New, and Old, at LegalTech New York, visit Index Engines at the show. Full event details and a free pass to LegalTech are as follows:
LegalTech NY 2011
The Hilton New York
New York, NY
Jan. 31 – Feb. 2, 2011
Free Conference Pass
A recent study by King and Spalding published in the Duke Law Journal shows that penalties for eDiscovery violations have reached all-time highs. The study states, “Producing parties have struggled to comply with ever-expanding and increasingly complex responsibilities as ESI has played a predominant role in pretrial discovery”.
In order to avoid sanctions organizations need to reevaluate their ESI collection strategy. Index Engines is focused on solving the exact issues highlighted in the study. Delivering a platform that can process large volumes of data quickly (1TB/hour) and cost effectively (<$50/GB) is only the beginning. Index Engines method of identifying and collecting ESI from complex sources such as email databases, forensic images and backup tapes delivers more forensically sound and defensible ESI vs. old-school methods that rely on traditional tools such as MAPI and data restoration.
The study found that of the 401 cases that were analyzed through 2009, sanctions of more than $5 million were ordered in five cases, and sanctions of $1 million or more were awarded in four others. It is time to re-evaluate your ESI collection tools. With new regulations, and oversight the trend of steep penalties will continue to grow.
Tom O’Connor, well known attorney and forensic expert, recently authored an article for the National Law Journal concerning tape discovery. In this article, Searching Through Backup Tapes? No Sweat!, O’Connor points out that while tapes have been around for decades with little change, how evidence is being accessed from them has changed dramatically.
This article highlights that discovery technologies such as Index Engines have made the arguments surrounding tape discovery mute. The approach suggested in O’Connor’s article is to produce tape data as a normal part of eDiscovery, and meanwhile be sure to implement a strong retention policy. By being smart about what data is kept, and then proactively indexing the saved data, companies will save both time and money down the road.
Nathan Koppel, writer for The Wall Street Journal, published an article on Nov. 23, 2010 outlining the huge amounts of time and money corporations spend reviewing electronic records. Koppel’s report, Using Software to Sift Digital Records, also details the hurdles that major law firms struggle to overcome when discovering vast amounts of data for their enterprise clients. The article goes on to cite specific technology to remedy common data discovery problems.
Koppel’s article suggests that by implementing technology, companies will save money paid to law firms for discovery. And by proactively reviewing electronic records regularly, corporations will preserve less data, therefore saving money on storage costs and saving time when future discovery is called for.
This article cites Index Engines for the fast and economic discovery of legacy data. An industry expert quotation highlights the dramatic savings in time and cost resulting from the implementation of this technology.
Everyone knows the power of Index Engines when it comes to processing backup tapes. However when it comes to the processing of network data Index Engines has some unique advantages – here are the top 5:
1. Comprehensive access to data in forensic images (Encase, FTK, Ghost) and email databases (PST’s, EDB’s, Notes). Index Engines can index the contents of forensic images, allowing full search and extraction of the contents. Email containers are fully processed at a bit level, making discovery more complete when compared with MAPI based tools.
2. Unified processing of online data along with backup tapes and forensic images. Projects that contain a diverse set of media sources, network, hard drives, forensic images, backup tapes, can all be processed using Index Engines. One solution, one unified view into the deduped content allows for faster and more cost effective culling.
3. Fastest indexing solution on the market. Index Engines delivers the highest speed indexing platform on the market today. If time is of the essence, you will find speeds many times faster than any alternative.
4. Compatibility with all review platforms. Once online data is index and searched, the desired content can be extracted and then easily fed into the review platform of your client’s choice.
5. Low price guarantee. Index Engines is priced to compete or beat the pricing of any other online data indexing or discovery tool on the market.
Contact Index Engines to discuss how we can support your online data discovery needs.
James Powell, columnist and Editorial Director at Enterprise Systems, asks the tough questions on why corporations would want to consider in-house eDiscovery. This article, Q&A: Bringing E-discovery In-House, released yesterday on esj.com explores the value of executing a cap-ex purchase instead of spending dollars on repeat discovery services. Powell questions Index Engines about the feasibility of in-house data discovery without specific forensic or data restoration expertise. He also delves into what new technology now enables internal IT teams to accomplish, that historically did require expert services. The net result of this article is that all enterprise organizations allocating budget to vendors for litigation-specific data discovery should investigate an in-house approach. Leveraging new technology for in-house discovery and proactive litigation readiness will prove it’s value by not only supporting eDiscovery, but will also impact legacy data storage costs and information management initiatives as well.
ESI Bytes presents a podcast featuring a diverse panel of experts discussing the problem of storing lots and lots of data. More than the problems presented, the group also talks about case law, approaches for dealing with this problem and why you should start acting today. The panel includes outside counsel, Alitia Faccone a partner with New Jersey based McCarter & English, Jim McGann an executive with the enterprise data discovery company Index Engines and Gary Rylander, an outside consultant who has been project managing these types of projects at large companies. Between this group of experts, an interesting discussion on the challenges associated with Legacy Data and the upside of starting to take action takes place. Click here to listen to the podcast.
A recent study from Symantec found that difficultly locating and collecting digital evidence has caused increased sanctions or case loss over the past two years. Up to 51% of lawyers surveyed had difficulty identifying and collecting ESI and have had to deal with repercussions as a result.
A whopping 98% of the surveyed lawyers said that electronic evidence is critical to the success of the trial. The question then becomes; Why are they not leveraging new technology and expert service providers in the collection process? The surveyed group felt that better search technology was required. Specifically, 57% said that ‘improvements to search technology used to identify, preserve and process electronically stored information’ was needed. These metrics indicate that lawyers are not up to date with the latest technology. They don’t know about technology that can process ESI faster than ever, up to 1 TB/Hr and get access to data even locked away on old backup tapes.
The solution is education. Law firms need to be informed about the latest technology in order to successfully execute their cases. Without this knowledge they cannot win. Index Engines provides technical education to law firms through webinar and events, and also writes white papers and articles aimed at education. Our goal is that as the education effort continues, more and more lawyers will head into court with the ESI required, rather than the excuses of why not.