You Don’t Know What You Don’t Know


Blog_06272014_graphicThe Akron Legal News this week published an interesting editorial on information governance. The story by Richard Weiner discussed how law firms are dealing with the transition from rooms filled with hard copy records to electronically stored information (ESI) which includes firm business records as well as huge amounts of client eDiscovery content. The story pointed out that ESI flows into the law firm so quickly and in such huge quantities no one can track it much less know what it contains.  Law firms are now facing an inflection point, change the way all information is managed or suffer client dissatisfaction and client loss.

The story pointed out that “in order to function as a business, somebody is going to have to, at least, track all of your data before it gets even more out of control – Enter information governance.”

There are many definitions of information governance (IG) floating around but the story presented one specifically targeted at law firms: IG is “the rules and framework for managing all of a law firm’s electronic data and documents, including material produced in discovery, as well as legal files and correspondence.” Richard went on to point out that there are four main tasks to accomplish through the IG process. They are:

  • Map where the data is stored;
  • Determine how the data is being managed;
  • Determine data preservation methodology;
  • Create forensically sound data collection methods.

I would add several more to this list:

  • Create a process to account for and classify inbound client data such as eDiscovery and regulatory collections.
  • Determine those areas where client information governance practices differ from firm information governance practices.
  • Reconcile those differences with client(s).

As law firms’ transition to mostly ESI for both firm business and client data, law firms will need to adopt IG practices and process to account for and manage to these different requirements. Many believe this transition will eventually lead to the incorporation of machine learning techniques into IG to enable law firm IG processes to have a much more granular understanding of what the actual meaning of the data, not just that it’s a firm business record or part of a client eDiscovery response. This will in turn enable more granular data categorization capability of all firm information.

Iron Mountain has hosted the annual Law Firm Information Governance Symposium which has directly addressed many of these topics around law firm IG. The symposium has produced ”A Proposed Law Firm Information Governance Framework” a detailed description of the processes to look at as law firms look at adopting an information governance program.

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Emails considered “abandoned” if older than 180 days


The Electronic Communications Privacy Act – Part 1

Email Privacy

It turns out that those 30 day email retention policies I have been putting down for years may… actually be the best policy.

This may not be a surprise to some of you but the government can access your emails without a warrant by simply providing a statement (or subpoena) that the emails in question are relevant to an on-going federal case – criminal or civil.

This disturbing fact is legally justified through the misnamed Electronic Communications Privacy Act of 1986 otherwise known as 18 U.S.C. § 2510-22.

There are some stipulations to the government gaining access to your email;

    • The email must be stored on a server, or remote storage (not an individual’s computer).This obviously targets Gmail, Outlook.com, Yahoo mail and others but what about corporate email administered by third parties, what about Outlook Web Access, remote workers that VPN into their corporate email servers, PSTs saved on cloud storage…
    • The emails must have already been opened. Does Outlook auto-preview affect the state of “being read”?
    • The emails must be over 180 days old if unopened

The ECPA (remember it was written in 1986) starts with the premise that any email (electronic communication) stored on a server longer than 180 days had to be junk email and abandoned.  In addition, the assumption is that if you opened an email and left it on a “third-party” server for storage you were giving that “third-party” access to your mail and giving up any privacy interest you had which in reality is happening with several well-known email cloud providers (terms and conditions).  In 1986 the expectation was that you would download your emails to your local computer and then either delete it or print out a hard copy for record keeping.  So the rules put in place in 1986 made sense – unopened email less than 180 days old was still in transit and could be secured by the authorities only with a warrant (see below); opened email or mail stored for longer than 180 days was considered non-private or abandoned so the government could access it with a subpoena (an administrated request) – in effect, simply by asking for it.

Warrant versus Subpoena: (from Surveillance Self-Defense Web Site)

To get a warrant, investigators must go to a neutral and detached magistrate and swear to facts demonstrating that they have probable cause to conduct the search or seizure. There is probable cause to search when a truthful affidavit establishes that evidence of a crime will be probably be found in the particular place to be searched. Police suspicions or hunches aren’t enough — probable cause must be based on actual facts that would lead a reasonable person to believe that the police will find evidence of a crime.

In addition to satisfying the Fourth Amendment’s probable cause requirement, search warrants must satisfy the particularity requirement. This means that in order to get a search warrant, the police have to give the judge details about where they are going to search and what kind of evidence they are searching for. If the judge issues the search warrant, it will only authorize the police to search those particular places for those particular things.

Subpoenas are issued under a much lower standard than the probable cause standard used for search warrants. A subpoena can be used so long as there is any reasonable possibility that the materials or testimony sought will produce information relevant to the general subject of the investigation.

Subpoenas can be issued in civil or criminal cases and on behalf of government prosecutors or private litigants; often, subpoenas are merely signed by a government employee, a court clerk, or even a private attorney. In contrast, only the government can get a search warrant.

With all of the news stories about Edward Snowden and the NSA over the last year, this revelation brings up many questions for those of us in the eDiscovery, email archiving and cloud storage businesses.

In future blogs I will discuss these questions and others such as how does this effect “abandoned” email archives.