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Symantec eDiscovery

Showing posts tagged with Document Retention
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Retaining Social Media Content for FINRA Regulatory Notice 10-06
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 guidance later this year to...

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Sanctions – Putting Teeth into Your Litigation Response Effort
pfavro | 20 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.  http://bit.ly/jjWNR6  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), http://bit.ly/kg4n6L.  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 Rule 1 to discover efficiently...

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Observing Best Practices for Your Litigation Response Effort
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...

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Court Says No To “Messy Garage” Defense, Orders Production
pfavro | 07 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...
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Learning the Lessons of eDiscovery: Information Governance and the Safe Harbor Provision
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,” the...

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The Federal Circuit Finds Document Retention Policies are Essential for Information Governance
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...

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Upgrade to Enterprise Vault 10 to Enhance Information Governance
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. ...

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Going Rogue? Getting Your PST Files into the Mainstream of Data Management
pfavro | 23 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...

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Anchoring Information Governance with Enterprise Vault 10
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...

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Overhauling Your Data Management with a Top-Down Information Governance Approach
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....

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