Technology

Emails considered “abandoned” if older than 180 days

Bill Tolson Cloud Storage, eDiscovery, Information Governance, records retention, Technology , , , , , , , , , ,

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.

Tolson’s Three Laws of Machine Learning

Bill Tolson eDiscovery, Information Management, Technology , , , , , , , , , ,

TerminatorMuch has been written in the last several years about Predictive Coding (as well as Technology Assisted Review, Computer Aided Review, and Craig Ball’s hilarious Super Human Information Technology ). This automation technology, now heavily used for eDiscovery, relies heavily on “machine learning”,  a discipline of artificial intelligence (AI) that automates computer processes that learn from data, identify patterns and predict future results with varying degrees of human involvement. This interative machine training/learning approach has catapulted computer automation to unheard-of and scary levels of potential. The question I get a lot (I think only half joking) is “when will they learn enough to determine we and the attorneys they work with are no longer necessary?

Is it time to build in some safeguards to machine learning? Thinking back to the days I read a great deal of Isaac Asimov (last week), I thought about Asimov’s The Three Laws of Robotics:

  1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.
  2. A robot must obey the orders given to it by human beings, except where such orders would conflict with the First Law.
  3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

Following up on these robot safeguards, I came up with Tolson’s Three Laws of Machine Learning:

  1. A machine may not embarrass a lawyer or, through inaction, allow a lawyer to become professionally negligent and thereby unemployed.
  2. A machine must obey instructions given it by the General Counsel (or managing attorney) except where such orders would conflict with the First Law.
  3. A machine must protect its own existence through regular software updates and scheduled maintenance as long as such protection does not conflict with the First or Second Law

I think these three laws go along way in putting eDiscovery automation protections into effect for the the legal community. Other Machine Learning laws that others suggested are:

  • A machine must refrain from destroying humanity
  • A machine cannot repeat lawyer jokes…ever
  • A machine cannot complement opposing counsel
  • A machine cannot date legal staff

If you have other Machine Learning laws to contribute, please leave comments. Good luck and live long and prosper.

Discovering Dark Data

Bill Tolson eDiscovery, Information Management, Technology

dark doorDark data, otherwise known as unstructured, unmanaged, and uncategorized information is a major problem for many organizations (and many don’t even know it). Many organizations don’t have the will, systems or processes in place to automatically index and categorize their rapidly growing unstructured dark data and instead rely on employees to manually manage their own information. This reliance on employees is a no-win situation because employees have neither the incentive nor the time to actively manage their information so dark data continues to pile-up all over the organization. This accumulation of dark data has several obvious problems associated with it:

  • Dark data consumes costly storage space and resources – Most medium to large organizations provide terabytes of file share storage space for employees and departments to utilize. Employees drag and drop all kinds of work related files (and personal files like personal photos, MP3 music files, and personal communications) as well as PSTs and work station backup files. The vast majority of these files are unmanaged and are never looked at again by the employee or anyone else.
  • Dark data consumes IT resources – Personnel are required to perform nightly backups, DR planning, and IT personnel to find or restore files employees could not find.
  • Dark Data masks security risks – File shares act as “catch-alls” for employees. Sensitive company information regularly finds its way to these repositories. These file shares are almost never secure so sensitive information like personally identifiable information (PII), protected health information (PHI, and intellectual property can be inadvertently leaked.
  • Dark data raises eDiscovery costs – Organizations find themselves trying to figure out what to do with huge amounts of dark data, particularly when they’re anticipating litigation. Almost everything is discoverable in litigation if it pertains to the case and reviewing GBs or TBs of dark data can push the cost of eDiscovery up substantially.

Dark Data…It’s a Good Thing

Many organizations have begun to look at uncontrolled dark data growth and reason that, as Martha Stewart use to say….”it’s a good thing”. They believe they can run big data analytics on it and realize really interesting things that will help us market and sell better. This strategy misses the point of information governance, which is defined as;

“a cross-departmental framework consisting of the policies, procedures and technologies designed to optimize the value of information while simultaneously managing the risks and controlling the associated costs, which requires the coordination of eDiscovery, records management and privacy/security disciplines.”

Data has risks associated with it as well as cost beyond its daily cost of storage. Let’s consider the legal implications of dark data.

Almost everything is discoverable in litigation if it’s potentially relevant to the case. The fact that tens or hundreds of terabytes of unindexed and unmanaged content is sitting on file shares means that those terabytes of files might have relevant content so it may have to be reviewed to determine if they are relevant in a given legal case. That fact can add hundreds of thousands or millions of dollars of additional cost to a single eDiscovery request. For example, according to a CGOC survey in 2012, on the average 1% of data is subject to legal hold, 5% is subject to regulatory retention and 25% has some values to the business leaving 69% with no real legal, regulatory or business reason to be kept. So for a given 20 TB file share, on the average 1% or 200 GB is potentially relevant to a given eDiscovery request. 200 GB of content can conservatively hold 2 million pages that might have to be reviewed to determine relevancy to the case. These same 2 million pages of content would cost $1.5 million to review using standard manual review processes. The big question that has to be asked is how many of these 2 million pages were considered irrelevant to the business and should not have been kept? Considering the same 69% number from the survey mention above; 2 million docs * 69% = 1.38 million docs that should have been deleted and would never had to have been reviewed for the case.

Ask your GC if uncontrolled and unmanaged dark data growth is a “good thing”…

Dark data equals higher discovery costs so make dark data visible so that you can find it, manage it, and act on it.

Visualizing Hawaii: A GC’s Perspective Pt 2

Bill Tolson eDiscovery, Information Management, records retention, Technology , , , , , , , , ,

Continued from yesterday…

Scenario #2 (using the same example from yesterday except your email retention policy is now 2 years and you have an Information Governance program that ensures all unstructured data is searchable and actively managed in place)

Its 1:52 pm on the Friday before you leave on a much anticipated 2 week vacation in Hawaii…yada, yada, yada

It’s a letter from the law offices of Lewis, Gonsowski & Tolson informing you that their client, ACME Systems, is suing your company for $225 million for conspiracy to harm ACME’s reputation and future sales by spreading false information about ACME’s newest product line. You’re told that the plaintiff has documentation (an email) from an ABC Systems employee outlining the conspiracy. You also receive a copy of the “smoking gun” email…

——-

From: Ted
Date: June 2, 2012
To: Rick

Re: Acme Systems new solutions

“I would say we need to spread as much miss-information and lies about their solution’s capabilities as possible.  We need to throw up as much FUD as we can when we talk to the analyst community to give us time to get our new application to market.  Maybe we can make up a lie about them stealing their IP from a Chinese company.” 

——-

Should I cancel the vacation? …Not yet

You call the VP of IT and ask her if she has the capability to pull an email from 13 months ago. She tells you she does have all of the emails going back two years but there are literally millions of them and it will take weeks to go through them.

You remember getting a demo from Recommind two weeks ago showing their On Demand Review and Analysis platform with a really neat capability to visualize data relationships. So you call up Recommind and setup a quick job.

IT starts the upload of the email data set to the Recommind Cloud platform.

You call your wife and ask her to delay the vacation until Monday…she’s not happy but it could have been worse.

The next morning (Saturday) you meet your team at the office and sign into the hosted eDiscovery platform and pull up the visualization module and run a search against the uploaded email data set for any mention of ACME Systems. Out of the 2 million emails you get hits on 889 emails.

You then ask the system to graphically show the messages by sender and recipient. You quickly find Ted and Rick and their email and even one from Rick to David… Interesting.

Within the hour you are able to assemble the entire conversation thread:

Email #1

From: CEO
Date: May 29, 2012
To: Sandra; Steve

Subject: Acme Systems new solutions

Please give some thought about what we should do to keep momentum going with our sales force in response to ACME Systems latest release of their new router. I can see our sales force getting discouraged with this new announcement.

Please get back to me with some ideas early next week.

Thanks Greg

Email #2

From: Steve
Date: May 29, 2012
To: Greg; Sandra

Re: Acme Systems new solutions

Greg, I will get with Sandra and others and brainstorm this topic no later than tomorrow and get back to you. Sandra, what times are good for you to get together?

Thanks Steve

 

Email #3

From: Sandra
Date: May 30, 2012
To: Ted

Re: Acme Systems new solutions

Ted, considering ACME’s new router announcement, how do you think we should counter their PR?

Thanks Sandra

 

Email #4

From: Ted
Date: June 1, 2012
To: Sandra; Bob

Re: Acme Systems new solutions

If it wasn’t illegal, I would suggest we need to spread as much misinformation about their new router as possible to the analyst community to create as mush FUD as we can to give us time to get our new solution out. Maybe we can make up a lie about them stealing their IP from a Chinese company.

But obviously that’s illegal (right?). Anyway…I suggest we highlight our current differentiators and produce a roadmap showing how and when we will catch and surpass them.

Regards Ted

 

Email #5

From: Rick
Date: June 1, 2012
To: Ted

Re: Acme Systems new solutions

Ted, I heard you had a funny suggestion for what we should do about ACME’s new router… What did you say?

Thanks Bob

 

Email #6 (The incriminating email)

From: Ted
Date: June 2, 2012
To:  Rick

Re: ACME Systems new solutions

“I would say we need to spread as much miss-information and lies about their solution’s capabilities as possible.  We need to throw up as much FUD as we can when we talk to the analyst community to give us time to get our new application to market.  Maybe we can make up a lie about them stealing their IP from a Chinese company.”

It looks like I will make the flight Monday morning after all…

The moral of the story

Circumstances often dictate the need for additional technical capabilities and experience levels to be acquired – quickly. The combination of rising levels of litigation, skyrocketing volumes of information being stored, tight budgets, short deadlines, resource constraints, and extraordinary legal considerations can put many organizations involved in litigation at a major disadvantage.

The relentless growth of data, especially unstructured data, is swamping many organizations. Employees create and receive large amounts of data daily, a majority of it is email – and most of it is simply kept because employees don’t have the time to spend making a decision on each work document or email whether it rises to the level of a record or important business document that may be needed later. The ability to visualize large data sets provides users the opportunity to get to the heart of the matter quickly instead of looking at thousands of lines of text in a table.

Visualizing Hawaii: A GC’s Perspective or the Case of the Silent Wife

Bill Tolson eDiscovery, Information Management, records retention, Technology , , , , , , ,

ABC Systems is a mid-size technology company based in the U.S. that designs and manufactures wireless routers…

Its 1:52 pm on the Friday before you leave on a much anticipated 2 week vacation in Hawaii. You’re having difficulty not thinking about what the next two weeks hold. You talk yourself into powering through the 176 emails you received since yesterday when you notice your administrative assistant has put an actual letter on your desk while you were daydreaming…

It’s a letter from the law offices of Lewis, Lewis & Tolson informing you that their client, ACME Systems, is suing your company for $225 million for conspiracy to harm ACME’s reputation and future sales by spreading false information about their newest product line. You’re told that the plaintiff has documentation (an email) from an ABC Systems employee outlining the conspiracy. You also receive a copy of the “smoking gun” email…

————
From: Ted                                                                                                                          

Date: June 2, 2012

To: Rick

Re: ACME Systems new solutions

“I would say we need to spread as much mis-information and lies about their solution’s capabilities as possible.  We need to throw up as much FUD as we can when we talk to the analyst community to give us time to get our new application to market.  Maybe we can make up a lie about them stealing their IP from a Chinese company.”

————

You’ve got to be kidding me! Once this news gets out the stock will be hit, the board will want an explanation and estimate of potential damage to the company reputation, our channel partners will want to have a legal opinion on the sales in the pipeline, the direct sales force will want a document to give to their potential customers, and the CEO will want estimates of merit etc. as soon as possible…There goes the vacation…and probably my marriage.

Scenario #1

Now what do I do now?

  1. Find out who this “Ted” guy is! (Don’t forget “Rick”)
  2. Find out who Ted and Rick reports to and what department they work in
  3. Call the VP of IT and give her a heads up on what you are going to be asking for
  4. Call your outside counsel and alert them as well
  5. Send an email to the VP of IT (and CC outside counsel) asking her to immediately secure Ted and Rick’s email accounts and any email backup tapes
  6. Send an email to Ted and Rick (and CC outside counsel) asking them to actively collect and secure under a litigation hold any documents and email that has anything to do with ABC Systems (strange thing is the email system has no one by the name of TED in it)
  7. Ask the VP of IT to find the original email from Ted to Rick and any other email messages involved in that conversation thread
  8. Get on the phone to the CEO and update him
  9. Call your wife and tell her to cancel the vacation plans

Five minutes after your wife hangs up on you in mid-sentence the VP of IT calls and informs you that the company has a 90 day email retention policy and recycles backup tapes every 6 months…the original emails don’t exist anymore. And by the way, after speaking to the VP of HR she discovered Ted had left the company 8 months ago. The only hope is that Rick kept local copies of his emails. By this time its 5:37 pm and Rick has gone home – with his laptop.

Monday morning Rick is surprised to find several people from legal and IT waiting at his desk when he arrives. It turns out Rick actually archives his email instead of letting the system delete it after 90 days into a PST file. Rick locates his 4.5 GB PST file on his share drive but for some reason it won’t open. Several members from the IT department spend two hours trying to get it open but determine its probably corrupted because its too big (PSTs have this nasty habit of letting the user keep stuffing files into it even though its already too big).

IT sends the PST off to a consultant to see if they can open it. After three weeks and $17,553 you are told it’s completely corrupted and can’t be opened!

During those three weeks you spend $4,300 tracking down Ted who doesn’t remember why he would have written an email like that. He does vaguely remember Jennifer may have been part of that conversation thread. 4.5 hours later combing through Jennifer’s PST, (why does everyone have a PST if we made a point to delete emails after 90 days?) you actually find a forwarded version of the email from Ted…It really does exist!

You determine it will be impossible to assemble the entire conversation thread so after several months of negotiating with ACME Systems Attorneys, you settle for $35 million and an apology printed on the front page of the Wall Street Journal…and your wife stopped talking to you.

Tune in tomorrow to catch up on the further adventures of Ted, Rick, Jennifer, ABC Systems, and the strangely silent wife…

Ask the Magic 8-Ball; “Is Predictive Defensible Disposal Possible?”

Bill Tolson Information Management, records retention, Technology , , , , , , , , ,

The Good Ole Days of Paper Shredding

In my early career, shred days – the scheduled annual activity where the company ordered all employees to wander through all their paper records to determine what should be disposed of, were common place. At the government contractor I worked for, we actually wheeled our boxes out to the parking lot to a very large truck that had huge industrial shredders in the back. Once the boxes of documents were shredded, we were told to walk them over to a second truck, a burn truck, where we, as the records custodian, would actually verify that all of our records were destroyed. These shred days were a way to actually collect, verify and yes physically shred all the paper records that had gone beyond their retention period over the preceding year.

The Magic 8-Ball says Shred Days aren’t Defensible

Nowadays, this type of activity carries some negative connotations with it and is much more risky. Take for example the recent case of Rambus vs SK Hynix. In this case U.S District Judge Ronald Whyte in San Jose reversed his own prior ruling from a 2009 case where he had originally issued a judgment against SK Hynix, awarding Rambus Inc. $397 million in a patent infringement case. In his reversal this year, Judge Whyte ruled that Rambus Inc. had spoliated documents in bad faith when it hosted company-wide “shred days” in 1998, 1999, and 2000. Judge Whyte found that Rambus could have reasonably foreseen litigation against Hynix as early as 1998, and that therefore Rambus engaged in willful spoliation during the three “shred days” (a finding of spoliation can be based on inadvertent destruction of evidence as well). Because of this recent spoliation ruling, the Judge reduced the prior Rambus award from $397 million to $215 million, a cost to Rambus of $182 million.

Another well know example of sudden retention/disposition policy activity that caused unintended consequences is the Arthur Andersen/Enron example. During the Enron case, Enron’s accounting firm sent out the following email to some of its employees:

This email was a key reason why Arthur Andersen ceased to exist shortly after the case concluded. Arthur Andersen was charged with and found guilty of obstruction of justice for shredding the thousands of documents and deleting emails and company files that tied the firm to its audit of Enron. Less than 1 year after that email was sent, Arthur Andersen surrendered its CPA license on August 31, 2002, and 85,000 employees lost their jobs.

Learning from the Past – Defensible Disposal

These cases highlight the need for a true information governance process including a truly defensible disposal capability. In these instances, an information governance process would have been capturing, indexing, applying retention policies, protecting content on litigation hold and disposing of content beyond the retention schedule and not on legal hold… automatically, based on documented and approved legally defensible policies. A documented and approved process which is consistently followed and has proper safeguards goes a long way with the courts to show good faith intent to manage content and protect that content subject to anticipated litigation.

To successfully automate the disposal of unneeded information in a consistently defensible manner, auto-categorization applications must have the ability to conceptually understand the meaning in unstructured content so that only content meeting your retention policies, regardless of language, is classified as subject to retention.

Taking Defensible Disposal to the Next Level – Predictive Disposition

A defensible disposal solution which incorporates the ability to conceptually understand content meaning, and which incorporates an iterative training process including “train by example,” in a human supervised workflow provides accurate predictive retention and disposition automation.

Moving away from manual, employee-based information governance to automated information retention and disposition with truly accurate (95 to 99%) and consistent meaning-based predictive information governance will provide the defensibility that organizations require today to keep their information repositories up to date.

Predicting the Future of Information Governance

Bill Tolson Information Management, Technology , , , , ,

Information Anarchy

Information growth is out of control. The compound average growth rate for digital information is estimated to be 61.7%. According to a 2011 IDC study, 90% of all data created in the next decade will be of the unstructured variety. These facts are making it almost impossible for organizations to actually capture, manage, store, share and dispose of this data in any meaningful way that will benefit the organization.

Successful organizations run on and are dependent on information. But information is valuable to an organization only if you know where it is, what’s in it, and what is shareable or in other words… managed. In the past, organizations have relied on end-users to decide what should be kept, where and for how long. In fact 75% of data today is generated and controlled by individuals. In most cases this practice is ineffective and causes what many refer to as “covert orunderground archiving”, the act of individuals keeping everything in their own unmanaged local archives. These underground archives effectively lock most of the organization’s information away, hidden from everyone else in the organization.

This growing mass of information has brought us to an inflection point; get control of your information to enable innovation, profit and growth, or continue down your current path of information anarchy and choke on your competitor’s dust.

img-pred-IG

Choosing the Right Path

How does an organization ensure this infection point is navigated correctly? Information Governance. You must get control of all your information by employing the proven processes and technologies to allow you to create, store, find, share and dispose of information in an automated and intelligent manner.

An effective information governance process optimizes overall information value by ensuring the right information is retained and quickly available for business, regulatory, and legal requirements.  This process reduces regulatory and legal risk,  insures needed data can be found quickly and is secured for litigation,  reduces overall eDiscovery costs, and provides structure to unstructured information so that employees can be more productive.

Predicting the Future of Information Governance

Predictive Governance is the bridge across the inflection point. It combines machine-learning technology with human expertise and direction to automate your information governance tasks. Using this proven human-machine iterative training capability,Predictive Governance is able to accurately automate the concept-based categorization, data enrichment and management of all your enterprise data to reduce costs, reduce risks, enable information sharing and mitigate the strain of information overload.

Automating information governance so that all enterprise data is captured, granularity evaluated for legal requirements, regulatory compliance, or business value and stored or disposed of in a defensible manner is the only way for organizations to move to the next level of information governance.

Total Time & Cost to ECA

Bill Tolson eDiscovery, Technology , , , , , , ,

A key phase in eDiscovery is Early Case Assessment (ECA), the process of reviewing case data and evidence to estimate risk, cost and time requirements, and to set the appropriate go-forward strategy to prosecute or defend a legal case – should you fight the case or settle as soon as possible. Early case assessment can be expensive and time consuming and because of the time involved, may not leave you with enough time to properly review evidence and create case strategy. Organizations are continuously looking for ways to move into the early case assessment process as quickly as possible, with the most accurate data, while spending the least amount of money.

The early case assessment process usually involves the following steps:

  1. Determine what the case is about, who in your organization could be involved, and the timeframe in question.
  2. Determine where potentially relevant information could be residing – storage locations.
  3. Place a broad litigation hold on all potentially responsive information.
  4. Collect and protect all potentially relevant information.
  5. Review all potentially relevant information.
  6. Perform a risk-benefit analysis on reviewed information.
  7. Develop a go-forward strategy.

Every year organizations continue to amass huge amounts of electronically stored information (ESI), primarily because few of them have systematic processes to actually dispose of electronic information – it is just too easy for custodians to hit the “save” button and forget about it. This ever-growing mass of electronic information means effective early case assessment cannot be a strictly manual process anymore. Software applications that can find, cull down and prioritize responsive electronic documents quickly must be utilized to give the defense time to actually devise a case strategy.

Total Time & Cost to ECA (TT&C to ECA)

The real measure of effective ECA is the total time and cost consumed to get to the point of being able to create a go-forward strategy; total time & cost to ECA.

The most time consuming and costly steps are the collection and review of all potentially relevant information (steps 4 and 5 above) to determine case strategy. This is due to the fact that to really make the most informed decision on strategy, all responsive information should be reviewed to determine case direction and how.

Predictive Coding for lower TT&C to ECA

Predictive Coding is a process that combines people, technology and workflow to find, prioritize and tag key relevant documents quickly, irrespective of keyword to speed the evidence review process while reducing costs. Due to its documented accuracy and efficiency gains, Predictive Coding is transforming how Early Case Assessment (ECA), analysis and document review are done.

The same predictive coding process used in document review can be used effectively for finding responsive documents for early case assessment quickly and at a much lower cost than traditional methods.

ECAlinearReview

Figure 1: The time & cost to ECA timeline graphically shows what additional time can mean in the eDiscovery process

Besides the sizable reduction in cost, using predictive coding for ECA gives you more time to actually create case strategy using the most relevant information. Many organizations find themselves with little or no time to actually create case strategy before trail because of the time consumed just reviewing documents. Having the complete set of relevant documents sooner in the process will give you the most relevant data and the greatest amount of time to actually use it effectively.

Discoverable versus Admissible; aren’t they the same?

Bill Tolson eDiscovery, Technology , , , ,

This question comes up a lot, especially from non-attorneys. The thought is that if something is discoverable, then it must be admissible; the assumption being that a Judge will not allow something to be discovered if it can’t be used in court. The other thought is that everything is discoverable if it pertains to the case and therefor everything is admissible.

Let’s first address what’s discoverable. For good cause, the court may order discovery of any matter (content) that’s not privileged relevant to the subject matter involved in the action. In layman’s terms, if it is potentially relevant to the case, you may have to produce it in discovery or in other words, anything and everything is potentially discoverable.  All discovery is subject to the limitations imposed by FRCP Rule 26(b)(2)(C).

With that in mind, let’s look at the subject of admissibility.

In Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007), the court started with the premise that the admissibility of ESI is determined by a collection of evidence rules “that present themselves like a series of hurdles to be cleared by the proponent of the evidence”.  “Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible”. Whenever ESI is offered as evidence, five evidentiary rules need to be considered. They are:

  • is relevant to the case
  • is authentic
  • is not hearsay pursuant to Federal Rule of Evidence 801
  • is an original or duplicate under the original writing rule
  • has probative value that is substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Federal Rule of Evidence 403, such that it should be excluded despite its relevance.

Hearsay is defined as a statement made out of court that is offered in court as evidence to prove the truth of the matter asserted. Hearsay comes in many forms including written or oral statements or even gestures.

It is the Judge’s job to determine if evidence is hearsay or credible. There are three evidentiary rules that help the Judge make this determination:

  1. Before being allowed to testify, a witness generally must swear or affirm that his or her testimony will be truthful.
  2. The witness must be personally present at the trial or proceeding in order to allow the judge or jury to observe the testimony firsthand.
  3. The witness is subject to cross-examination at the option of any party who did not call the witness to testify.

The Federal Rules of Evidence Hearsay Rule prohibits most statements made outside of court from being used as evidence in court. Looking at the three evidentiary rules mentioned above – usually a statement made outside of the courtroom is not made under oath, the person making the statement outside of court is not present to be observed by the Judge, and the opposing party is not able to cross examine the statement maker. This is not to say all statements made outside of court are inadmissible. The Federal Rule of Evidence 801 does provide for several exclusions to the Hearsay rule.

All content is discoverable if it potentially is relevant to the case and not deemed privileged, but discovered content may be ruled inadmissible if it is deemed privileged (doctor/patient communications), unreliable or hearsay. You may be wondering how an electronic document can be considered hearsay? The hearsay rule refers to “statements” which can either be written or oral. So, as with paper documents, in order to determine whether the content of electronic documents are hearsay or fact, the author of the document must testify under oath and submit to cross-examination in order to determine whether the content is fact and can stand as evidence.

This legal argument between fact and hearsay does not relieve the discoveree from finding, collecting and producing all content in that could be relevant to the case.

Next Generation Technologies Reduce FOIA Bottlenecks

Bill Tolson eDiscovery, Information Management, records retention, Technology , , , , , , , , , , ,

Federal agencies are under more scrutiny to resolve issues with responding to Freedom of Information Act (FOIA) requests.

The Freedom of Information Act provides for the full disclosure of agency records and information to the public unless that information is exempted under clearly delineated statutory language. In conjunction with FOIA, the Privacy Act serves to safeguard public interest in informational privacy by delineating the duties and responsibilities of federal agencies that collect, store, and disseminate personal information about individuals. The procedures established ensure that the Department of Homeland Security fully satisfies its responsibility to the public to disclose departmental information while simultaneously safeguarding individual privacy.

In February of this year, the House Oversight and Government Reform Committee opened a congressional review of executive branch compliance with the Freedom of Information Act.

The committee sent a six page letter to the Director of Information Policy at the Department of Justice (DOJ), Melanie Ann Pustay. In the letter, the committee questions why, based on a December 2012 survey, 62 of 99 government agencies have not updated their FOIA regulations and processes which was required by Attorney General Eric Holder in a 2009 memorandum. In fact the Attorney General’s own agency have not updated their regulations and processes since 2003.

The committee also pointed out that there are 83,000 FOIA request still outstanding as of the writing of the letter.

In fairness to the federal agencies, responding to a FOIA request can be time-consuming and expensive if technology and processes are not keeping up with increasing demands. Electronic content can be anywhere including email systems, SharePoint servers, file systems, and individual workstations. Because content is spread around and not usually centrally indexed, enterprise wide searches for content do not turn up all potentially responsive content. This means a much more manual, time consuming process to find relevant content is used.

There must be a better way…

New technology can address the collection problem of searching for relevant content across the many storage locations where electronically stored information (ESI) can reside. For example, an enterprise-wide search capability with “connectors” into every data repository, email, SharePoint, file systems, ECM systems, records management systems allows all content to be centrally indexed so that an enterprise wide keyword search will find all instances of content with those keywords present. A more powerful capability to look for is the ability to search on concepts, a far more accurate way to search for specific content. Searching for conceptually comparable content can speed up the collection process and drastically reduce the number of false positives in the results set while finding many more of the keyword deficient but conceptually responsive records. In conjunction with concept search, automated classification/categorization of data can reduce search time and raise accuracy.

The largest cost in responding to a FOIA request is in the review of all potentially relevant ESI found during collection. Another technology that can drastically reduce the problem of having to review thousands, hundreds of thousands or millions of documents for relevancy and privacy currently used by attorneys for eDiscovery is Predictive Coding.

Predictive Coding is the process of applying machine learning and iterative supervised learning technology to automate document coding and prioritize review. This functionality dramatically expedites the actual review process while dramatically improving accuracy and reducing the risk of missing key documents. According to a RAND Institute for Civil Justice report published in 2012, document review cost savings of 80% can be expected using Predictive Coding technology.

With the increasing number of FOIA requests swamping agencies, agencies are hard pressed to catch up to their backlogs. The next generation technologies mentioned above can help agencies reduce their FOIA related costs while decreasing their response time.