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Symantec eDiscovery

Showing posts tagged with Information Governance
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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 http://bit.ly/kxMfyE) and the defendant bank in Viramontes v. U.S. Bancorp (see http://bit.ly/ij1RAI).

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

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...

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 | 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...

| 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...