Archive for the ‘Barry Murphy’ Category

It’s hard to believe that the amendments to the Federal Rules of Civil Procedure (FRCP) took effect over 2 years ago. It’s hard to believe because so many organizations have still done very little to ensure they can meet the requirements set forth by these rules. But, I truly believe that 2009 will be the “end of the ignorance.” Why? Because in today’s economic climate, every dollar counts.

I attended a couple of seminars last week - one in Chicago and one in Toronto.  Despite very different audiences (more of a legal flavor in Chicago and more of an IT / messaging administrator flavor in Toronto), the sentiments about eDiscovery were the same…it’s painful.  In fact, an audience member in Toronto said that painful is not the right word to describe eDiscovery.  A better word is “nightmare.”

I attended the ACC (Association of Corporate Counsel) trade show in Seattle this week. What’s clear to me more than ever is that we are still in an extremely immature market phase for eDiscovery.

First of all, there is a clear disconnect between legal folks, records and information management folks, and IT. Why else would the biggest records management show of the year (ARMA) in Las Vegas take place the same week as the ACC show?

It’s easy to pass off eDiscovery as something only highly litigious or regulated companies have to be concerned about. The financial crisis seems to be reinforcing that assumption.

A recent eWeek article talks about companies (including Mimosa) awaiting a “litigation boom.” While this is not necessarily incorrect, what is not talked about is the many advantages that organizations get from having tools in house to conduct internal investigations.

Last week, the President signed into law S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence.  The legislation protects against the inadvertent waiver of the attorney-client privilege or the work product protection - but should not be interpreted as a reason to be lax in implementing eDiscovery processes.  The law stipulates that the protection is only for those that have “taken reasonable efforts to avoid disclosing privileged information and, upon learning of disclosure, promptly takes reasonable steps to rectify it.” 

Interesting numbers put forth by TechRepublic last month:

• Only 25% of companies have policies and procedures for retention and archiving
• 71% of companies don’t provide ESI/eDiscovery training
• 59% of companies archive email but not IM

I can’t say I’m surprised. For those of us in the eDiscovery business, it’s very easy to forget that most people don’t have a clue that eDiscovery even exists, let alone realize how much money is wasted on it due to lack of preparation.

I awoke this morning to an interesting blog posting from a guy I respect a lot - Aaref Hilaly of Clearwell Systems. He’s commenting on the IBM announcement of its eDiscovery Manager. Aaref’s post astutely points out the IBM capabilities as well as product gaps (such as review, tagging, and analysis - conveniently enough, exactly the things that Clearwell provides…of course, I don’t begrudge a vendor conveniently taking advantage of an opportunity to promote itself; after all, I work for a technology vendor).

Even before I began working for an integrated content archiving software provider, I was well aware of the fact that archiving software provides benefits across several spectrums.

There’s saving storage costs by moving information off expensive production storage; there’s eDiscovery savings and risk mitigation by proactively retaining and disposing of information according to policy; and there’s the end-user productivity benefit of allowing workers to save as much information as they need without having to create PSTs or figure other work-arounds to get past quotas. All of these benefits are huge, but there is so much more to the story.

I can’t tell you the number of times I’ve been in a meeting where the issue of storage costs comes up. What always surprises me is the laissez-faire attitude toward storage costs…”Storage is cheap and getting cheaper” some businessperson will say. And, for the most part, everyone else just nods their heads. It’s the easy way to dodge a tough issue. Who wants to argue with the truth; in fact, the per GB cost of storage is decreasing and will continue to do so. But, what no one talks about is that the amount of information being created that needs to be stored is growing exponentially, and probably at a larger clip than the decrease in storage costs. Thus, in relative terms, the cost of storing information continues to be the same, if not more, despite lower storage costs - especially for all those organizations still sadly stuck in the “retain everything” mode.

After two years, requested records must be delivered in a ‘reasonable period of time.’ In fact, NI 31-103 requires firms to keep some records for seven years after the departure of a client.” Wow - sounds eerily similar the US’s FRCPs.