Enterprise and holistic investigation, as concepts and strategies, generate many questions, concerns and risks. Our investigator, legal and security community is made up of 50+ professionals. Our community helps develop working Investigation Playbooks to intersect pressing investigative issues. For example, our community collaborates with us to develop Investigation Playbooks to manage retention policy, business continuity and information security issues. Some of our community members includes KPMG, ARC Group NY and individuals, such as Steve Harper of Crucial Security and Randy Barr Chief Security Officer at WebEx.
This is delivered by marrying efficient resources, high-speed review applications and proactive project and process management. We also use higher level strategies, such as our Dynamic Data Analysis™ (a blending of statistical, conceptual and legal analysis), to both identify relevant documents as quickly and cost-effectively as possible, and to simultaneously reduce the total amount of data required to be reviewed.
The legal (but somewhat impractical) issue is pretty straightforward here—what industry you’re in will determine the regulatory and legal requirements for you. Since relatively few industries are subjected to substantial regulatory/legal requirements for preservation, the question of retention of most records is, often, a balance between the benefit of end user access, aka knowledge management, contrasted against the burdens of data retention expense and potential legal production obligations.
The greatest challenge we experience is the requirement to educate IT and legal teams on the downstream impact of their technology decisions (e.g., an application may be a dream to manage for the IT team but could be very poor for review and production purposes). Our challenge is getting both teams to factor in functionality for all stakeholders and the impact of downstream costs, such as review, legal risk, analysis, etc., to their overall Return On Investment (ROI) calculations.
For example, a few years ago DiscoverReady had a conversation with a lawyer who needed high-level help understanding the basics of eDiscovery. Three months later, he was listed on his firm’s website as the eDiscovery practice leader. DiscoverReady recommends legal counsel be aware of self-proclaimed experts and stay deeply involved in the eDiscovery process.
Unlike electronic data, physical case evidence exerted boundaries on the legal budget based on one’s tolerance for going through the boxes of paper and other paper-based evidence. With today’s electronically stored information (ESI), cost provisioning has become unpredictable. It has changed because a single, four-gigabyte thumb drive can have 240,000 document pages on it. Counsel doesn’t really know how many of these documents will be relevant until the review cycle, unless there is an early case assessment done.
For IT professionals who see no reason to treat evidence any differently than any other data, I practice a simple chain of custody exercise. I have them simply “move” files from on physical disk to another. Many people interpret data movement like they would move a chair; however, when you move Electronically Stored Information (ESI) from one physical device to another, it moves a representation of the original item. Critical things like data ownership, group security, created date and many other pieces of metadata (data about data) are changed when the data is “moved.” This minor issue can become a major legal risk when authenticating chain of custody in court.
When these two groups meet, the language and focus is decidedly different. Fios consultants use skills of communication and collaboration to bridge this gap. This has been the focus of Fios since our inception nearly a decade ago. We pioneered the concept of litigation readiness in 2003, well before the amendments to the Federal Rules were in place, and have built an entire portfolio of discovery planning services to help both IT and legal prepare for discovery challenges. For example, in the data mapping process, we help them focus on eDiscovery as a business process that incorporates:
As CEO I’m happy to say my sales, engineering and operations teams are executing against our shared vision. AXS-One latest functionality includes a very sought after Case Manager module. It is providing our customers with a true self-service discovery and review capability. If I may indulge a bit on my team’s hard work; the Case Manager enables our customers to:
* Conduct initial searches themselves
* Review and modify the results of the searches
* Add dispositions to the searched results
* Package the search for additional review by outside counsel/other 3rd party
Joshua Konkle: One of the most frequently asked questions by CIO’s and others worried about the cost of data management is “how long do I have to keep my data, really?” What do you say when you get asked that question? — Bill Lyons: We can help is the first thing I say. We have been providing record compliance solutions for many years. In all cases, we discuss the need to plan for secure destruction and work with customers on implementing appropriate technology to manage the retention, disposition, preservation and destruction of data.