E-Discovery Bytes : E-Discovery Lawyer & Attorney : Quarles & Brady Law Firm : Electronic Discovery, Data Preservation, Conversion, Computer Forensics

If you're like me, when I run out of space in my house, I sort through things, toss them out, give them away or hold a rummage sale. Even then I end up with items that not even Goodwill will accept-- in the trash they go. Unfortunately, you can't do that with your client's or your own corporate data.

So what to do when you run out of storage for the all important bits and bytes? Two options: buy more storage or rent disk space. Sounds simple enough but both of which can have a significant impact on e-discovery data management and retrieval. I will briefly examine both options.

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Over 300 inside and outside counsel and records managers joined us for the second webinar in our series titled The E-Discovery Toolkit -- The Tools Your Organization Needs to Manage Information in an Electronic World.  You can watch a recording of the May 22, 2009 webinar below by clicking on the arrow in the lower left corner to play. 

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Over 350 inside and outside counsel and records management professionals have signed up for our second webinar in our three part series, titled The E-Discovery Toolkit:  The Tools Your Organization Needs to Manage Information in an Electronic World, scheduled for this coming Wednesday, April 22nd at noon CST, 1pm EST.  The webinar will run for an hour with a 30 minute question and answer period.  I will host the webinar and provide a big picture overview of the policies and procedures your organization needs to have in place to be prepared to manage, preserve and produce ESI, as well as reviewing tips for creating an effective legal hold protocol, the notice to employees, and a system for tracking holds.  Lisa Berry-Tayman of Kahn Consulting will provide an overview of a records retention policy and accompanying retention schedules and discuss the do's and don'ts of putting a policy and schedule in place.  John Collins of The Ingersoll Firm will discuss the inherent challenges in this process given the ever changing landscape of technology and review the types of technologies available to assist in various stages of the EDRM model.  To register for the webinar, click here.  Please use the email icon to the right of or below this post to email the link to other colleagues who may be interested in attending, or to post it to a list serve of interested professionals. We have  limited number of spots available, so register now! 

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Lawyers regularly receive emails from clients that contain earlier email threads that are forwarded in the course of seeking legal advice. Sometimes these earlier threads appear as attachments. Other times, they are embedded beneath the content of the most recent thread. Regardless of the form of the threads, parties involved in litigation will often seek to withhold the entire chain from the opposing party. The problem lies in determining how to properly log an email chain to preserve the privilege that attaches to the earlier email threads when they are forwarded along with a privileged email.

In a recently published opinion from the Eastern District of Pennsylvania, the court found that each individual thread must be logged. Rhoads Industries, Inc. v. Building Materials Corp. of America, 254 F.R.D. 238, 241 (E.D. Penn. 2008). If an underlying email is not logged, any privilege that otherwise might have attached to it is waived.  

If it doesn’t make immediate sense to you why someone might not want to log each individual thread, consider that the underlying emails probably have to be produced in their original, non-forwarded format. By comparing the log with the emails that have been produced, the opposing party can determine what emails the client forwarded to the lawyer.  Because the opposing party has access to these emails in their original format, the opposing party might be able to determine what the lawyer and client knew and when they knew it, including key facts in any dispute. 

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Michelangelo is arguably the greatest artist of our time. However, many successful records managers will tell you that they use comparable skills to maintain an effective record retention program because implementation and compliance is more of an art than a science.

Corporate attorneys frequently counsel clients that it is riskier to have a retention program that is not followed than not having one at all, and in tough economic times, retention programs are sometimes cut as cost saving mechanisms. As corporate counsel, we can offer our clients practical information to prevent this outcome by preparing them to communicate the business case for maintaining the program.

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Blogger, trial lawyer, and self-described computer forensics/EDD special master Craig Ball has boldly traveled the “back roads of listservs and blogs”, and lived to blog another day.  We are lucky that he survived; in a highly entertaining and informative read, Ball eviscerates the “flea bitten claim” that forensic examiners can recover overwritten data; apparently, threats to recover such data are mere puffery.

Ball’s blog, “Busting the Multipass Erasure Myth,” was posted March 26 on Law.com. In it, he traces the origin of the “myth” that data cannot be overwritten to a paper published in 1996 by Peter Gutmann. Ball reports that Gutmann developed a 35-pass overwriting process to eliminate data -- the “Gutmann Method erasure.” Not one to mince words, Ball pronounces that method “all a lot of hogwash.”  There is no need to take 35 passes, says Ball, or anything close to it.  Indeed, Ball goes so far as to say that only one overwrite is needed:  “No tool and no technique extant today can recover overwritten data on 21st century hard drives. Nada. Zip. Zilch.” 

So, contrary to popular belief, data really can be erased.  But Ball's readers should make no mistake:  Overwriting data is different than simply pressing "delete."

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In reviewing the E-Discovery blawgs this week, a recurring theme emerged:  the pitfalls and limitations of keyword searching, and the need for collaboration and cooperation between counsel to devise effective search protocols.

A number of the E-Discovery blawgs this week featured the ABA Journal's article on improving e-discovery search protocols: "In Search of the Perfect Search."  The thought-provoking article highlights the dismaying lack of progress in finding cost-effective ways to locate and retrieve relevant documents through keyword searching. Bottom line? The way we are doing it now is wrong. Although technology has advanced at a rapid clip over the past twenty years, it has not been able to overcome "the fundamental ambiguity of language": research shows that paralegals and attorneys using simple keyword searches on a group of documents find, on average, only twenty percent of the relevant documents. That is basically the same result research found in similar studies conducted twenty years ago. 

The answer? Using a combination of search methods and tools. The Text Retrieval Conference Legal Track is working on a process and protocol to improve the results of digital searches. According to the article, however, few E-Discovery vendors have participated in the project, perhaps reluctant to have the effectiveness of their own search technologies quantified. Early recommendations from the project on how to improve on the usual keyword search include:

• Working with opposing counsel to identify the best search terms;
• Negotiating proposed Boolean search strings;
• Using sampling to see whether the search engines are really finding the relevant documents.

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Join us for the second webinar in our three part series, titled The E-Discovery Toolkit:  The Tools Your Organization Needs to Manage Information in an Electronic World, on Wednesday, April 22nd at noon CST, 1pm EST.  The webinar will run for an hour with a 30 minute question and answer period.  I will host the webinar and provide a big picture overview of the policies and procedures your organization needs to have in place to be prepared to manage, preserve and produce ESI, as well as reviewing tips for creating an effective legal hold protocol, the notice to employees, and a system for tracking holds.  Lisa Berry-Tayman of Kahn Consulting will provide an overview of a records retention policy and accompanying retention schedules and discuss the do's and don'ts of putting a policy and schedule in place.  John Collins of The Ingersoll Firm will discuss the inherent challenges in this process given the ever changing landscape of technology and review the types of technologies available to assist in various stages of the EDRM model.  To register for the webinar, click here.  Please use the email icon to the right of or below this post to email the link to other colleagues who may be interested in attending, or to post it to a list serve of interested professionals. 

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