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Symantec eDiscovery
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pfavro | 17 Jun 2011 | 0 comments

Do you think the risk of discovery sanctions is overblown?

For litigants who became “newsworthy” because they were sanctioned, the answer is no. 

But many organizations observe their discovery obligations as if sanctions were no threat at all.  They feel little incentive to implement a process that will have the company prepared for litigation.  Worse, there are others who view discovery misconduct – e.g., refusals to produce documents in response to requests or orders – as “tactically advantageous.”  See Lee v. Max Intern., LLC, --- F.3d --- (10th Cir. 2011),  Whether intentional or inadvertent, such conduct unreasonably lengthens the litigation process and increases the expense for all involved.  It also belies the mandate from Federal...

pfavro | 15 Jun 2011 | 0 comments

The eDiscovery frenzy that has gripped the American legal system over the past decade has largely eluded our European counterparts.  This is due in large part to the broad and fastidious protections of European privacy laws.  Another reason is found in Europe’s narrower discovery rules, which forbid categorical document requests authorized by the Federal Rules of Civil Procedure.  The result is that many companies that operate in Europe may feel insulated from the need to implement eDiscovery-related information governance procedures.

Having a laissez-faire attitude toward information governance is troubling enough.  But taking no action to prepare for eDiscovery is worse.  That is especially the case for companies operating in Europe that maintain offices in the United States.  They may unwittingly fall into an “American style” discovery trap for unsuspecting litigants in foreign proceedings.  That discovery trap is 28 U....

pfavro | 14 Jun 2011 | 0 comments

Is your organization adequately prepared for a lawsuit?  Or are you still trying to develop an internal process for addressing document productions in litigation?

Preparing a litigation response effort is an essential aspect of a company’s information governance plan.  Failing to take the initiative in this regard often leads to higher legal costs and increased risks during litigation.  The Vieste, LLC v. Hill Redwood Development (N.D. Ca. June 6, 2011) case from last week is particularly instructive on this issue.

In Vieste, the court sanctioned several real estate developers for submitting inadequate declarations regarding their document preservation efforts.  Those declarations reveal an overall failure to prepare for litigation.  Among other things, the defendant developers did not issue a litigation hold; did not suspend the overwrite function of one of their computer systems; and waited several months to contact...

pfavro | 09 Jun 2011 | 0 comments

Blue chip law firm McDermott Will & Emery was sued last week for alleged eDiscovery shortcomings. The complaint (see alleges that the firm should be held liable for the disclosure of 3,900 attorney client privileged documents since it "did not thoroughly review" the privilege review performed by its contract attorneys.  See ¶¶ 9-10.

Regardless of the allegations' merits, this lawsuit should serve as a wake-up call to firms and companies who rely on contract attorneys, particularly for their privilege document reviews.  Privileged materials often contain extremely sensitive information that must be safeguarded against disclosure.  Privilege reviews therefore merit heightened scrutiny.

Without such care, the protections surrounding the attorney client privilege will continue...

pfavro | 09 Jun 2011 | 0 comments

Today's news about the consumer data security breach at Citigroup underscores the need for a secure cloud offering.  Citigroup acknowledged today that hackers had penetrated its systems, exposing sensitive data regarding credit card customers.

Regardless of which systems were hacked, this news supports the need for companies to closely scrutinize cloud offerings for their data storage.  It is not enough for a cloud provider to offer cheap and unlimited storage.  Companies must satisfy themselves that appropriate security measures are in place when data is transferred and stored in the cloud.  Otherwise, sensitive business and consumer information could be subject to disclosure and misuse.

Proper safekeeping measures should include an encryption protocol that provides security for data transfers to and from the cloud.  Multi-layered firewalls that prevent...

pfavro | 07 Jun 2011 | 0 comments

The eDiscovery frenzy that has gripped the American legal system over the past decade has become increasingly expensive.  Particularly costly are inquiries into an organization’s data management practices and production efforts.  These investigations are lengthy and often disruptive to business operations.  Just as troubling, they increase the expense and duration of litigation.  Given these cost and delay issues, it is no wonder that jurists are looking for alternative methods to rein in “promiscuous discovery.”  The latest approach is found in Federal Rule of Civil Procedure 1.

Federal Rule 1 establishes a compelling directive that is tailor made for eDiscovery.  More than just a vestigial preamble to the Federal Rules, Rule 1 requires the “just, speedy, and inexpensive determination of every action and proceeding.”

To understand just how courts are recognizing the value of Rule 1’s decree to address...

pfavro | 06 Jun 2011 | 0 comments

Are you looking to the cloud to save costs on data storage?  Great idea.  But look carefully at the cloud offerings out there.  Companies that are going to the cloud should consider whether they can timely retrieve data for legal, regulatory or other business purposes.

This is not a theoretical consideration.  Courts have traditionally rejected what I euphemistically call the “messy garage” defense.  That defense usually involves a litigant informing the court that its disorganized record keeping makes production of requested documents unduly burdensome.  The Brooks v. Macy’s (S.D.N.Y. May 6, 2011) decision from last month is just the latest example of a court rejecting that defense.

In Brooks, an employer was ordered to produce paper healthcare records to the plaintiff in an ERISA lawsuit.  The employer had argued that the records were too burdensome to produce because:

  • The records...
pfavro | 02 Jun 2011 | 0 comments

It is axiomatic that the law helps those who help themselves.  Perhaps nowhere is that truism more applicable than in the context of electronic discovery.  The company that implements an effective information governance strategy – which includes developing an internal process for how it will address document productions in litigation – will likely avoid court sanctions and reduce its legal fees.

There are many recent examples of companies that defeated sanctions motions because they “got” information governance.  They include the plaintiff manufacturer in E.I. du Pont de Nemours v. Kolon Industries (see and the defendant bank in Viramontes v. U.S. Bancorp (see

And just last week, a defendant hospital prevailed in a sanctions battle due to its effective...

| 31 May 2011 | 0 comments

I was fortunate enough this week to have Symantec  send me to the 11thAnnual Superconference in Chicago at the Fairmont.  All sessions I attended were useful, but one of most important was the Judicial Panel on eDiscovery.  The Judges were: Flynn, Francis, Nolan and Waxse with Patrick Oot of the SEC as the moderator.  It is always beneficial to get into the minds of the judges who lead in eDiscovery.  It is especially important to me because many of our Symantec customers ask when purchasing or deploying our eDiscovery suite, “Does this software have court approval?”

The quick answer to that question is “No,” because in general, courts are not in the business of approving technology.  The other way to answer the question is, “Yes,” because our products have never been disapproved either.  Judges prefer that parties reach agreement themselves on scope, search terms, formats and search methodologies. ...

pfavro | 27 May 2011 | 0 comments

Several recent court cases have imposed sanctions on companies that unwittingly turn over the duty to manage, archive and discard data to their rank and file employees.  One of the latest examples – Suntrust Mortgage, Inc. v. AIG United Guaranty Corp. (E.D. Va. Mar. 29, 2011) – demonstrates how expensive that approach to information governance can be.

In Suntrust Mortgage, a Virginia federal court issued sanctions against plaintiff Suntrust for falsifying evidence.  Several key emails between the parties that supported the defendant’s arguments were altered by a Suntrust employee to bolster the plaintiff’s claims.  When the truth eventually came out, Suntrust’s credibility – and pocketbook – took a hit.  Indeed, a motion for attorney fees is now pending to recoup the nearly $4 million the defendant incurred to address that malfeasance.

While evidence falsification is an uncommon occurrence...