Archive for December, 2008

An interesting news story appeared in the Denver Post on December 26, 2008. It was a story about the expected rise in wrongful termination lawsuits as the economy worsens.

From the Denver Post Article by Carol J. Williams:”But labor and employment lawyers warn that a tidal wave of wrongful-termination lawsuits is expected in the coming months as the jobless burn through their savings, run up debt and find few work prospects in the worst economic downturn in decades.

I really like Mimosa’s NearPoint Retention and Classification Option (RCO) because it brings new value to email archiving without additional overhead.    Using RCO, Admins can define business rules to automatically set retention periods and apply specific tags to content. These tags can drive multiple actions such as marking a piece of content as potentially responsive to an ongoing investigation or legal matter, or explicitly declaring content a business record as part of the company file plan. 

One of my favorite features of Outlook is the ability to view web pages without leaving Outlook.  The feature is called ‘folder home page’ and it has been supported in Outlook since Outlook 2000.   Folder home page is especially useful for email archiving.  By simply clicking an ‘archive folder’ in Outlook,  users gain access to the email archive search application, which is a web-based application.   Now they can quickly search and browse archive information, and they never have to leave Outlook.

On Dec 3, 2007, the Electronic Discovery Reference Model (EDRM) group announced its new XML standard for eDiscovery of electronically stored information.  [link: http://edrm.net/blog/archives/98]  This new XML standard facilitates the transfer of electronic information (e.g. emails, files, databases) between eDiscovery stages, software and organizations.   Without the XML standard, emails, files and other electronic information are transferred in their native format (e.g. .DOC, .XLS, .MSG) or converted to a standard format such as PDF.  With the XML standard all electronic information can be transferred more easily and accurately, providing improved eDiscovery.

Today is exciting because I get to watch a project I’ve worked on for some time now hit the news wires.  Mimosa announced it’s new Retention and Classification Option (RCO), which provides the ability to intelligently and automatically classify and tag archived content.  It’s exciting because this is the problem I’ve been working on with companies for the better part of the last decade, and it’s proved extremely difficult to solve. 

Shortly after the new amendments to the FRCP were published, I was told by many GCs that finally backup tapes had been protected from the dreaded discovery request. When asked why they held this opinion they responded;”Rule 26(b)(2)(B) takes backup tapes off the table because they are cost and not easily restored and searched”.

I would suggest a closer reading of the committee notes. These notes are as important as the actual amendment.

I came across an article here recently where a Pittsburg lawyer comments that “E-discovery is one of the hottest areas in law. This isn’t something that is yet taught in law schools. Many firms are just now starting separate departments for e-discovery.”

So what is discoverable and therefore subject to a litigation hold in federal civil litigation? The short answer is anything is potentially discoverable.

What does this mean to potential targets of civil litigation for discovery? It means you must take into consideration all sources of potentially responsive data within your corporate infrastructure.

I always like it when someone distills a complex topic into an easy to read paper that we can read and understand.  Case in point is this free paper authored by the Sedona Conference entitled: Commentary on Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible..  The Sedona Conference, if you are not aware is a legal working group that has taken the lead on the important topic of electronic information.  If you ever wanted to learn what electronic information needs to be stored and how to manage electronic information for legal discovery, these guys are the experts.

I am constantly asked what retention periods the federal rules of civil procedure (FRCP) stipulate for email. In the first place, the FRCP are, in effect, the manual on civil court proceedings. BY this I mean it directs how the court will be run, how defense and plaintiff’s counsel will interact, requirements on procedures and timing and how discovery will be managed etc.