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.
Category: Litigation Readiness
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.
Frankly, I agree with Steve that EMCs work on solution frameworks is paramount. That work is primarily focused on structured content and structured processes. However, the frameworks aren’t really new to the area of managing unstructured content. Microsoft first released accelerators in 2003 under the umbrella of “Office Solution Accelerators”, then in late 2004 renamed the program to Solution Showcase for the Microsoft Office System. In either case, the situation remains bleak for managing unstructured content created by non-deliberate processes.
Business processes, like electronic discovery, offer defined metrics and quantitative impacts on organizations. Historically speaking, electronic discovery review budgets have been rising steadily; creating the need to improve review (better crushing power) or reduce data going into review (refined selection process). Moreover, the team at KVS/Symantec knew in 2005 that “Discovery Accelerator 1.0” was a stifled product; primarily designed to return email results for people, according to dates and keywords. At the time all the talk was around better “improving review,” but the market has been saying “early case assessment” since early 2007.
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.
I put file virtualization in the same category as block storage virtualization: they are both technologies in which businesses usually see the value but have a hard time pulling the trigger to make virtualization technologies a reality. The reason that businesses tend to hesitate in acquiring virtualization technologies in whatever form is that it requires hard dollars to solve what are perceived by businesses as soft dollar problems.
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