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Symantec eDiscovery

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AlliWalt | 24 Aug 2011 | 0 comments

S.E.C. and other Governmental Agencies- Practicing What They Preach?

The recent Freedom of Information Act concerns surrounding the retrieval of Sarah Palin’s emails are of grave concern to the public due to the amount of time it took and the format in which the data was produced.  Of course the public wants to know what our elected public servants are doing and saying on our dime, and it is our right as taxpayers to know where and how our money is being spent.  We hope that our money being spent in efficient and constructive ways. However, recent events suggest that the government has not spent as much time or made enough of an effort on Information Governance and eDiscovery issues as they are requiring of the business community.

In the private sector, companies need to know about applicable requirements so they can produce information to the...

AlliWalt | 24 Aug 2011 | 0 comments

Every day that I talk to customers, I personally encounter the need to bridge the knowledge and political gaps to make policy and purchasing decisions within corporations regarding eDiscovery.  The other side of the coin has been that judges and outside counsel, as well as industry experts are coming together to find solutions to deal with these eDiscovery challenges in the courtroom.   The 7th Circuit Principles do just that, and are driving proactive behavior in addressing ESI, much to the pleasure of Judges. 

It worked in the 7th Circuit, and evangelists are jumping on board in other Circuits, including the 9th Circuit.  Art Gollwitzer, previously lived in Chicago and is a member of the 7th Circuit eDiscovery Pilot Program Committee.  He practices patent law and was key in the formation of the...

pfavro | 20 Jul 2011 | 0 comments

It has now been over eight years since Judge Scheindlin began issuing her landmark opinions in Zubulake v. UBS Warburg.  Those orders not only shaped the outcome of that particular case, they permanently changed the discovery phase of litigation.  Discovery no longer begins with Rule 34 requests, the Rule 26(f) conference or Initial Disclosures.  Indeed, it begins long before the filing of a complaint.  Discovery now commences with pre-litigation information management.  For how an organization stores and manages its data will go a long way to determining whether it can meet the demands of discovery in 2011.

This point was highlighted this week by none other than Laura Zubulake in her keynote address at the Carmel Valley eDiscovery Retreat.  As my colleague, Allison Walton, pointed out in her recent...

AlliWalt | 19 Jul 2011 | 0 comments

Pretty exciting time here in the eDiscovery world at the Carmel Valley Ranch this week!  Not too long ago, we at Symantec had our annual off-site at the Carmel Valley Ranch and dug deep into our Enterprise Vault 10 launch as well as what our eDiscovery plans were for FY12.  That was in April, and now in July, I am here at the same venue with Clearwell now part of Symantec, in our first event together.  I remember having numerous conversations intra company in April about what we needed to do in order to give our customers the full eDiscovery capability they were looking for and how to complete the Information Governance offering.  With our landmark acquisition, and its tremendous effect on the eDiscovery market, we now look to another landmark event.

Monday kicked off with Laura Zubulake’s keynote address giving an overview of what her personal experience was in the famous Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) case....

pfavro | 13 Jul 2011 | 0 comments

Did you know that Federal Rule 37(e) can really protect your organization from court sanctions?

The Rule 37(e) “safe harbor” provision shields organizations from sanctions when the ordinary, good faith operation of their automated computer systems causes email, archival data and other electronic information to be overwritten and destroyed.  Not without its critics, the safe harbor has empowered numerous litigants to defeat sanctions motions.

Those who have followed best practices for information governance have had the greatest success invoking the safe harbor’s protections.  Such practices include establishing and observing document retention policies.  The Kermode v. University of Mississippi Medical Center (S.D. Miss. July 1, 2011)...

TrevorD | 08 Jul 2011 | 0 comments

A big welcome to Clearwell, customers, partners and employees!  Today, Clearwell Systems, a leader in eDiscovery, is now part of Symantec.  This means our two teams are officially working together to provide both Clearwell and Symantec customers exceptional end-to-end information management solutions spanning archiving, backup and eDiscovery.

We have already begun work on more robust integration between Clearwell and Enterprise Vault.  Our goal is to provide Symantec customers access to enhanced eDiscovery functionality and Clearwell customers access to a broader set of integrated information management solutions from one vendor – Symantec. Together we will help customers:

  • Reduce costs across all phases represented in the Electronic Discovery Reference Model, from information management through review and production
  • Reduce risk by improving the defensibility and repeatability of their archiving and eDiscovery processes
  • ...
pfavro | 06 Jul 2011 | 0 comments

Is your firm still finding it difficult to retain or otherwise address social media communications as required by FINRA Regulatory Notice 10-06?

FINRA promulgated Regulatory Notice 10-06 last year to protect investors from false or misleading claims and representations on social networking sites.  To that end, securities firms must develop protocols to supervise and retain social media content and ensure compliance by their representatives.

It is no secret that FINRA 10-06 continues to bedevil securities firms.  FINRA chairman and chief executive Richard Ketchum acknowledged as much at an industry event in Washington, D.C. last month.  Indeed, Ketchum promised further...

pfavro | 27 Jun 2011 | 0 comments

The landmark sanctions order in Phillip M. Adams & Associates v. Dell, 621 F.Supp.2d 1173 (D. Utah 2009) has been adopted by U.S. District Judge Ted Stewart.  Finally made available to the public last week after a nine-month delay (, Judge Stewart’s order ( PACER, sign-up req’d) fully embraced the magistrate’s holding that organizations have an obligation to preserve relevant evidence after the duty to preserve attaches.  The court thus imposed a negative inference jury instruction against defendants Asustek Computer and Asus Computer Intl. for their evidence spoliation.  It should come as no surprise that the jury then returned a verdict against those defendants.

With the Adams sanction order finally in the books, it is worth reviewing why that decision was so noteworthy....

AlliWalt | 22 Jun 2011 | 0 comments

The most comprehensive piece I have read to date on the differences between Quick-Peeks and Clawback Agreements was authored by Ralph Losey (  In a careful and thoughtful analysis, he succinctly outlines and clarifies the scope of these agreements, when they should be utilized, and how to draft them to safeguard privileged documents from potential waiver claims.  It is recommended reading to improve the knowledge base, because even experienced lawyers are still confused by the two.  See also Rule 26 (b) (5) (B), Federal Rules of Civil Procedure, and Rule 502 Federal Rules of Evidence.

Lions and Tigers

In short, using Quick-Peek,the receiving party will have full review of the documents before the producing party. The receiving party, after this full review, will then advise...

pfavro | 22 Jun 2011 | 0 comments

Judge Scheindlin has withdrawn her landmark opinions ordering the federal government to produce several categories of metadata in response to a FOIA request.  See National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency (S.D.N.Y. June 17, 2011).  Judge Scheindlin issued her order in connection with the parties' resolution of "their dispute regarding the form and format in which records will be produced by defendants in this Freedom of Information Act lawsuit."

The court reasoned as follows:

"In the interests of justice, this Court now believes that it would be prudent to withdraw the opinion it issued on February 7,2011 (Docket # 41). I do so because, as subsequent submissions have shown, that decision was not based on a full and developed record."

Significantly, the court indicated that her withdrawn opinions should have no precedential value:  "By withdrawing the...