Posts Tagged ‘eDiscovery’

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. 

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.

Section 26(f) of the new FRCP amendments points out the requirement of parties to the legal action must get together to discuss questions such as: what information must be produced, how that information will be collected, whats considered inaccessible and in what format the information is to be produced. This early meeting is called the “Meet and Confer”

Many companies I speak with mention the fact that they have some small percentage of their email traffic in an encrypted format. This can be either because of company or regulatory requirement or even more, because employees don’t want the content read by the company.

Encrypted email can represent a major risk in a corporate civil litigation if the company doesn’t have the encryption key.

Corporate legal departments fall into two main groups; those that have been through civil litigation, including discovery, and those that have not. Many of those legal departments that have not been through litigation and discovery have wildly different expectations as to their responsibilities and the work involved in responding to a discovery request.

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.”