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Symantec eDiscovery

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pfavro | 26 May 2011 | 0 comments

The SEC implemented rules this week to create awards for corporate insiders that blow the whistle for violations of federal securities laws.  Where the violations result in fines (referred to as "sanctions") of more than $1 million, the whistleblower may be entitled to a bounty of up to thirty percent of those sanctions.  http://1.usa.gov/kNvsXz

The SEC's whistleblower program is certain to increase the amount of litigation surrounding alleged securities violations.  That was the case when Congress strengthened the whistleblower provisions in the False Claims Act in 1986 to better address federal procurement fraud.  False Claims Act litigation ballooned, with whistleblowers receiving in some cases up to thirty percent of the $2.3 billion that the Department of Justice obtain last year in lawsuits whistleblowers initiated.  http://1.usa....

pfavro | 20 May 2011 | 0 comments

Are you learning the lessons of eDiscovery history?  Or are you doomed to repeat the same mistakes of those lawyers whose companies and careers were damaged by eDiscovery failures?

While there are many such lessons to be learned, one stands out in particular for companies seeking to minimize litigation risks and reduce operating expenses:  the Federal Rule of Civil Procedure 37(e) safe harbor for the destruction of electronic information.  This provision can be a “get out of jail free” card for savvy organizations that have followed best practices for information governance.

How can your company "play this card"?  For more information, read a brief article from the Daily Journal last month in the following link http://bit.ly/lt2GB7.  Entitled “Learning the Lessons of eDiscovery:  Information Governance and the Safe Harbor,...

pfavro | 17 May 2011 | 0 comments

In two decisive blows, the Federal Circuit tipped the litigation scales decisively against Rambus in the long running DRAM memory chip dispute against Micron Technology and Hynix Semiconductor.  The Federal Circuit found that Rambus spoliated evidence by destroying over 300 boxes of documents as part of its pre-litigation “Licensing/Litigation Readiness” strategy.  However, in so doing, the court held that organizations may lawfully discard data by implementing neutral document retention policies.

Significant to that holding was the Federal Circuit’s reasoning regarding when a litigant’s duty to preserve is triggered.  Rambus argued that the duty attaches once litigation is “imminent.”  That position was rejected since it was too generous to alleged spoliators.  Instead, the court applied the long-standing rule that the duty begins when litigation is “pending or reasonably foreseeable.”

By...

pfavro | 13 May 2011 | 0 comments

Last year’s landmark opinion in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, 685 F.Supp.2d 456 (S.D.N.Y. 2010) was heralded as an eDiscovery gold standard.  Following the Zubulake cases, Pension Committee established bright line rules on data retention, litigation response efforts and sanctions.  Such rules, in turn, strengthened the call for additional eDiscovery standards that were not addressed by the 2006 amendments to the Federal Rules of Civil Procedure.

Despite the impact of Pension Committee on eDiscovery practice and jurisprudence, subsequent case law reveals the difficulty in crafting national eDiscovery standards.  Several courts have declined to follow the Pension Committee rubric, particularly as it relates to litigation holds.  Indeed, over the past three weeks, three different courts have distinguished the sweeping Pension Committee...

pfavro | 11 May 2011 | 0 comments

Are you still on the fence about upgrading to Enterprise Vault 10?  Yet another reason to get the latest version of Enterprise Vault is that it may help your organization minimize litigation risks.  Who doesn’t want to stay out of lawsuits and reduce litigation costs?

Enterprise Vault 10 can help your organization do so though its Data Classification Services technology.  At its heart, Data Classification Services empowers organizations to establish more effective information governance procedures.  Companies are able to better analyze and retain information that is significant or that must be kept – and nothing else.

Available initially for Microsoft Exchange Server, Data Classification Services intelligently analyzes content as email is archived into Enterprise Vault.  Through established retention protocols, email is then tagged and characterized insomuch that it can be searched for and retrieved with greater efficiency. ...

pfavro | 10 May 2011 | 0 comments

What are the worst discovery nightmares for lawyers?  I am sure we could compile a lengthy list.  From my experience, one of the worst involves addressing documents that fall outside the mainstream of data management – so-called rogue documents.  Microsoft Personal Storage Table (“PST”) files are some of the worst culprits.  PST files often have a stealth existence because they are created and stored on local computers.  Furthermore, Legal and IT often have no information governance plan to address the retention, identification and production of these files.

A cautionary tale of what could happen when a company fails to take charge of its rogue PSTs is found in Nycomed U.S. Inc. v. Glenmark Generics Ltd. (E.D.N.Y. Aug. 11, 2010).  In Nycomed, the defendant was sanctioned for failing to preserve data.  In its findings, the court noted that some emails were unavailable because they had become corrupted...

pfavro | 04 May 2011 | 0 comments

Appellate courts rarely weigh in on discovery issues.  When they do, clients and counsel should pay close to attention to the messages the courts are communicating.

That is why we have chosen to spotlight yesterday’s Tenth Circuit opinion in Lee v. Max International, LLC, which affirmed dismissal of the plaintiffs’ complaint for discovery misconduct.  The court reasoned that plaintiffs had “struck out.”  They had been given three chances – including two court orders – to produce key documents and failed on all three occasions.  Applying a pitch count to discovery abuses, the court reasoned that:  “three strikes is [sic] more than enough to allow the district court to call a litigant out.”

The take-home from the Tenth Circuit’s holding is more subtle than simply “produce your documents or else.”  The key to the decision was its reliance on Federal Rule of Civil...

| 04 May 2011 | 0 comments

Litigation Readiness and your IT Infrastructure: Spring Cleaning 

What is litigation readiness and why is it important? It is the measure of how prepared a company is to respond when  litigation arises.  It is important because failure to prepare can, in the best case, lead to inefficiencies and higher costs in responding to discovery to the worst case of facing legal sanctions (fines and penalties) for failure to produce relevant evidence.

 

 How is it measured?  Most companies are unsure of how to formalize readiness, and even the most prepared companies are tested since litigation always presents  surprises.  Because companies face  different regulatory requirements and business needs, this answer is not the same in each case. 

 

How...

pfavro | 03 May 2011 | 0 comments

Is your organization struggling to manage stockpiles of data?  Have you run out of storage space for your back-up tapes?  These are telltale signs that your organization needs to overhaul its approach to information governance.

The anchor for successful information governance is Symantec Enterprise Vault 10.  The latest version of Enterprise Vault will help organizations reduce data stockpiles, decrease operation expenses and minimize litigation risks.

Enterprise Vault 10 can help your organization do so though its Data Classification Services technology.  At its heart, Data Classification Services empowers organizations to establish more effective information governance procedures.  Companies are able to better analyze and retain information that is significant or that must be kept – and nothing else.

Available initially for Microsoft Exchange Server, Data Classification Services intelligently analyzes content as email is...

pfavro | 02 May 2011 | 0 comments

Is your company still placing too much trust in its workers to decide what documents the company should or should not keep?

Did you know that courts frequently fault organizations for delegating primary responsibility to their employees for data preservation and production? 

One such case from this year – Northington v. H&M International (N.D.Ill. Jan. 12, 2011) – involved a company that had no formal policy regarding the retention of company data.  Into this vacuum stepped operations-level employees – including some accused by the plaintiff of harassment – who were left with the task of managing, identifying and collecting their emails.  Predictably, key documents went missing and the court had little choice but to inform the jury that the company destroyed evidence.

Contrast the scenario in Northington with a company that “got” information governance.  In Viramontes v. U.S....