The Fortiva Blog

Preparing for FRCP - Collection Retrieval (Part 5 of 5)

Posted by Alan Armstrong, VP Business Development

My final article in the FRCP readiness series is about Collection, Search, and Retrieval – the most expensive, tedious, and time-consuming element of the legal discovery process. To paint some context, allow me to start with a story about Dave, an Assistant General Counsel at a Fortune 500 company.

Recently I was in a meeting with 20 people, including Dave, where this company was evaluating  Fortiva against an in-house competitor. Fortiva was the underdog, as this in-house competitor is considered the leader in the space for companies who want to go through the hassle of managing their own email archive.

Dave was attending the meeting mostly out of obligation to review all the vendors being considered, but his underlying goal was to find a way to do better “Early Case Assessment”, to reduce the cost of collection and processing, and to just know, going in to a “meet and confer” meeting, what data can be discovered, and at what cost.

Until this moment in the meeting, Dave was fairly nonplussed with our discussion. His eyes were not glossing over exactly, but he definitely had not been enthused. We were in the middle of a product demonstration, when our SE began to show the Fortiva search capability. All of a sudden, there was a rustling of papers at Dave’s end of the room. Remember, there were 20 other people in this room, so I didn’t have eye contact with everyone. After a bit of mumbling back and forth, the project sponsor, Andy, interrupted: “I just want everyone to know what’s going on here … when Fortiva shows you this search capability, they are executing a search against their production database, not a demo system.”

It seems that Dave was flummoxed by the response time of the search.

This is not surprising:  in many cases, it can take days (or even weeks) for Legal to retrieve the results of a search request, and the request must be executed by IT. As a result, Dave was shocked and stopped the meeting to clarify what had just happened. For him, real-time search in the hands of Legal rather than just IT was a game changer.

Let’s just say Fortiva won that account over the in-house competitor who could not offer a search performance guarantee. (We challenge our competitors to offer an SLA around search).

Dave’s reaction reveals a lot about the difficulties that Legal has in meeting its objectives. Knowing what kind of data the company has and being able to search and retrieve it can be very costly and time consuming.  And because a “meet and confer” must occur within 99 days of filing, counsel must know what data exists, where it exists and the cost and timeframe of retrieval.  Dave and others in his situation have told me that it is quite common for legal to be unsure about what it can deliver and at what cost.  This can result in over-promising and under-delivering, not to mention the possibility for fines and “negative inferences”. The search technology we showed him was exciting precisely because it would enable Dave to know what he has and make a more informed decision sooner.

Bottom line, here is some advice to prepare for e-Discovery:

1. Ensure you can identify sources of data and be prepared to  start to collect, search and review relevant email data when notice of suit first received
2. Invest in real-time search technology
3. Ensure data is easily searchable to perform early case assessment

Hope this helps.

Alan

Read more on the Preparing for FRCP series - Part 1 - Part 2 - Part 3 - Part 4 - Part 5

Preparing for FRCP - Litigation hold (Part 4 of 5)

Posted by Alan Armstrong, VP Business Development

“Stop recycling the tapes!” Our prospects often described this as their approach to litigation holds before implementing Fortiva.

FRCP now requires that companies place a litigation hold on data immediately upon hearing of a potential lawsuit. This means that companies cannot wait even until the lawsuit is officially filed; they must place the hold upon suspicion of an impending lawsuit.

A Litigation Hold suspends disposition of information pending the outcome of a related lawsuit. The typical approach has several problems, but the primary problem is the lack of precision; when you place a hold on a set of tapes, you are retaining all of the information on those tapes, which will certainly be more information than you are required to retain.

And with more information comes a greater cost of processing and filtering, but worst of all it increases the risk of retaining information beyond its desired retention policy.

The other problem with the typical approach to litigation holds is that they often rely on end users to refrain from deleting information. After legal makes the “backup tape retention order”, the next step is often to instruct users to stop deleting any relevant information.

Does this sound dangerous? Consider:

• When legal asks an end-user to stop deleting information related to a legal case, they are frequently asking someone under investigation to preserve incriminating evidence.
• “They have been warned” doesn’t cut it. In case you are thinking that it may be OK if an end-user deletes information, even if they do so illegally, think again. The court holds the company and its lawyers responsible for the enforcement of retention policies. For examples of this, see the Qualcomm and the Intel vs. AMD cases.

Our recent survey found that companies are largely catching on. When asked whether companies had formalized and enforced a litigation hold process for email, the results were encouraging:

These numbers are a stark contrast from our survey of March 2007, when 91% said that they had no litigation hold in place.

You may rightly ask, then, what is the alternative to the blanket approach of litigation holds. The answer lies in centralizing control of the information. In the Fortiva archive, creating and enforcing a litigation hold is as easy as a few clicks, and no action is required by end users. With this approach, you can easily implement the best practices that we recommend:

1. Empower legal counsel to oversee litigation hold process and ask IT to demonstrate that litigation holds are being enforced
2. Never rely on end users to enforce a litigation hold
3. Narrow litigation hold to include only responsive information (by keyword, custodian, date range, etc)

If you follow these directions, you will no longer have to retain “all or nothing”. Take a look for yourself.

Read more on the Preparing for FRCP series - Part 1 - Part 2 - Part 3 - Part 4 - Part 5

Preparing for FRCP - Archive as Strategic Weapon (Part 3 of 5)

Posted by Alan Armstrong, VP Business Development

In this series we are looking at the basics of FRCP compliance. In my previous article, I pointed out that many companies fail to meet the most basic federal rules because they get embroiled in debates about retention policy. Indecision means non-compliance!

I think the reason that companies fail to decide is because they are focusing on the wrong question. Most times the debate is about whether information is a legal asset or a liability, and that question cannot be definitively answered; in some legal situations, the information will be in your company’s favor while in others, it will be against you. The trouble is, the potentially incriminating information can’t really be controlled or even destroyed (too many copies exist, and once the email is sent outside your company, you don’t have the power to destroy it). In their indecision about retention policies, companies continue to go through expensive discovery procedures, and must eventually deal with the incriminating or exculpatory information.

I suggest that you consider this issue from a different angle: Information discovered early is a strategic weapon. Forget about assets and liabilities; in every legal case you’ll have to deal with both. What can make the difference, though, is the ability to pinpoint information instantaneously. With the right information in hand, your company can use the information strategically to have cases withdrawn or dismissed before they even get to the “meet and confer”, or worse yet the costly discovery phase.

To illustrate, allow me to share the story of one of our customers, anonymously of course.

John (not his real name) described a legal action that came against his company. The company was in the middle of a very large business transaction, and a supplier sensed that the company was vulnerable to a legal attack. The suit was launched, and of course legal came to IT looking for evidence. Because John had implemented an email archive (Fortiva), and imported all historical email into the archive, he was able to instantly query the archive for relevant email.

With a small and targeted set of search results, he quickly exported the data to PST and provided it to one of the company’s contract administrators. After reviewing about 100 emails, the contract administrator pulled 16 emails that clearly demonstrated than the supplier’s claim was false.

Our customer John took those 16 emails, sent them to the plaintiff, and the case was immediately dropped. Needless to say, John was pretty proud of his foresight. Because he had retained email, he had more information than the opposing side.

Bottom line: For Legal, Email, in a searchable archive, can be more than an Asset. It can be a strategic weapon that you can use to defend your company.

So how long should you retain email? If you get beyond the false dilemma of asset vs. liability, you can let the business drive retention policy. I hope that helps you simplify the whole question.

-    Alan

PS: This argument only makes sense if you have an archive that your legal counsel can search quickly and painlessly. Most archiving software is painfully slow to search, so your legal counsel may not even have imagined it would be possible to access the “strategic weapon” on their own in 20 seconds or less. That’s why Fortiva issued the Search Challenge. As far as I know, Fortiva is the only company in the industry to contractually guarantee search performance. And if our logic is right, it won’t be easy to emulate. See our series on search for the gory details.

Read more on the Preparing for FRCP series - Part 1 - Part 2 - Part 3 - Part 4 - Part 5

Approach 2: Journaled Archiving (Part 3 of 4)

Posted by Rick Dales, VP Product Management

In my last two posts, I talked about the fact that there are multiple approaches to archiving, each with its pros and cons. I also took a closer look at one of those approaches – mailbox archiving.  In this post, I will dive more deeply into another widely-used approach – journaled archiving – including how it works and what problems it is best suited to address.

Journaled archiving relies on a feature in the mail system that captures a copy of every message in transport (as it is sent/received) and puts a copy in another mailbox.  This copy of the message is stored as an attachment to a message known as a journal report, which contains additional information about the actual recipients of the original message.  The archiving system then uses this “journal mailbox” as a source of messages to be captured (and typically deletes the content once it has been captured).  Some outsourced solutions rely on the customer configuring journaling to deliver to a remote SMTP address.

Strengths

• Complete capture of email messages
  The journaling process places a copy of every message that is sent/received into a separate mailbox at the same time that a user receives it in their mailbox.  A user choosing to delete the message in their own mailbox has no bearing on whether the message gets archived. 

• A single, complete picture of each message
  As the journaling process includes BCC information and expansion of distribution lists, the archiving system can provide a full picture of the original message.  While multiple Exchange servers can increase the complexity on this front (because multiple journal reports may be created), the data exists to allow an archiving system to collapse the data into a single message containing all information about the actual recipients.

Weaknesses

• Providing end-user access to their own mail is difficult
  To provide end-users with access to the messages that they sent or received, an archiving system has to determine which mailboxes a message was actually delivered to.  The address information on journal reports is insufficient to archive this, as forwarding and routing rules must be factored into the equation.   While it is possible to do this (and Fortiva does), most other journal mail systems do not, resulting in journaled messages being available only to IT or legal that have rights to see all mail.

• No direct ability to modify/stub messages
  There is no connection between a journal report in the journaling mailbox and the messages that live in users’ mailboxes.  Replacing message content in users’ mailboxes with a pointer to the message captured using journaling, requires the archiving system to use complex lookup routines based upon content similarity.  Fortiva uses this approach, but most firms do not.

Appropriate Uses of Journaled Archiving

Best suited for: Legal and Regulatory Compliance
Journaled archiving is the Microsoft-recommended approach for capturing data for legal discovery and compliance requirements.  It allows for the complete capture of all messages in a single, unified view.

Not usually well-suited for: Email Storage Management*
Unless the archiving vendor specifically implements other processes to cleanup user mailboxes, journaled archiving approaches won’t address storage management challenges. Some journaled archiving solutions, including Fortiva, have implemented attachment stubbing (replacing attachments with a link to the file in the archive) to address this.

Not usually well-suited for: End-user Access*
Unless the archiving vendor specially implements techniques to determine which users actually received mail, users will either not be able to access their own mail, or will be granted access to a subset of the messages that they actually received. Some solutions, such as Fortiva, have developed a way to overcome this, allowing end-users to fully access all their archived mail.  Because journaled archiving isn’t working against the users’ mailbox, it can’t record which folder each user chooses to file the messages into.

* NOTE - As a point of reference (and self-disclosure), Fortiva uses journaled archiving. It overcomes some of the noted limitations with additional address resolution techniques and the use of a periodic scan of users’ mailboxes to allow for the stubbing of older attachments.

Preparing for FRCP - Email Retention (Part 2 of 5)

Posted by Alan Armstrong, VP Business Development

A mentor once counseled me that the most important thing about a company strategy is to have one. It may sound trite, but it is actually quite profound; he is saying that there may be many valid strategies, but ultimately you just need to pick one, stick to it, and focus on execution.

What’s the relevance to email and document retention? In this series we’re focusing on the basics of FRCP compliance, and the first question that always comes up is: What retention policy should we implement? The FRCP guidelines on retention policies are similar to my mentor’s advice on strategy:

1. Have a policy
2. Enforce the policy
3. Be able to demonstrate that you are enforcing the policy

Were you looking for something more specific? Unless your company is regulated in some way (financial services and some healthcare companies may fall under more specific regulations), the FRCP does not specify a retention policy.

Many companies that I meet with wish that the fed would simply dictate a timeframe for retention, because in the absence of such specifics, many companies fail to decide on a policy, and as a result, fail to comply with the regulations.

Once you decide on a retention policy, you can begin to move towards compliance. I’ve seen several companies who delay and delay and delay, until ultimately they are caught in a legal situation by their own inaction.

So my primary message here is: Decide on a policy!

But how do you decide on that retention policy? Stay tuned for my next post.

Read more on the Preparing for FRCP series - Part 1 - Part 2 - Part 3 - Part 4 - Part 5

Preparing for FRCP – Basic Steps for IT and Legal (Part 1 of 5)

Posted by Alan Armstrong, VP Business Development

I described earlier how the lawyers for Qualcomm found themselves in very hot water earlier this year. When lawyers get sanctioned, the water is very very hot. As that case continues through the court I would like to look at the wider trends: how are companies responding to the changes to the Federal Rules of Civil Procedure (FRCP), and what practical measures can your company take to protect yourselves against the courts, who have become increasingly demanding about email and other e-Discovery requests.

While I’m not a lawyer, and I certainly don’t claim to be offering legal advice, I have spent a lot of time working with customers to understand the changes to the FRCP amendments and what they mean. At Fortiva, we’ve also researched how these changes are impacting businesses through independent surveys. We recently shared this information in a webcast, and based on the positive feedback, I decided it might be helpful to put it into a series of posts that will start by covering overall market trends (this article), followed by an in-depth look at the three critical areas of FRCP compliance (in future posts):

1. Enforcing retention policy
2. Litigation hold
3. Collection, search, and retrieval

For each of these areas, I will describe what the law requires, what our industry surveys tell us about what your peers are doing, and some best practices. Finally, I will wrap up the series with some thoughts on how to overcome the barriers to getting your company ready for e-Discovery.

But first let’s return to the Qualcomm case. This case is significant on its own, with its high profile and high impact to the individual lawyers, but more than that it seems to be part of a wider trend where the courts have lost patience with companies claiming ignorance or citing prohibitive costs for e-Discovery requests. Over the past year, Fortiva commissioned two surveys (March 2007 Survey & November 2007 Survey ) that measured the ongoing impact of the changes to FRCP in December 2006, and the results are quite dramatic:

	In March 2007	By January 2008
No email retention policy	46%	13%
Unprepared for FRCP	94%	33%
No litigation hold process	91%	28%

Companies don’t take steps like this because they enjoy it; compliance rarely drives revenue, but as the courts have started to enforce the new rules, the financial and other costs of non-compliance have forced companies to get ready. Our January survey found that average litigation costs (excluding settlement costs and judgments) exceeded $200,000 for 51% of organizations, with 8% putting that cost at over $1M. A full 20% of companies have settled a case to avoid the cost of search and recovery of email.

A few other stats that should be cause for concern:

• 35% are not confident that emails are fully reviewed to ensure attorney-client privilege is not waived before being sent to opposing counsel during Discovery
• 47% of respondents do not agree that their legal team can effectively review relevant email in the 99-day window before the meet and confer session
• The majority of businesses have recognized the potentially negative impact e-discovery requests can have, and are doing something about it. Based on the survey, the majority of businesses are now actively taking steps to reduce their risk, meet the FRCP requirements and improve their e-discovery processes.

Is your legal team waiting for fines or sanctions to get prepared? Our surveys indicate that the majority of businesses now recognize the negative potential impacts that e-discovery requests can have and are now actively taking steps to reduce their risk. If yours is not, you’ll soon be in the minority; FRCP compliance is quickly becoming standard operating procedure.

But if you haven’t yet covered your bases, I hope you find this series of articles helps to provide some pragmatic steps to do so.

Read more on the Preparing for FRCP series - Part 1 - Part 2 - Part 3 - Part 4 - Part 5

A Legal Discovery Primer for IT - Key Definitions

Posted by Fortiva Blog Editor

As you may already know, an effective email archive can help your organization save a lot of time and effort if you ever face a legal discovery request. You need to ensure that your archiving solution is well equipped and allows you to perform several functions with ease such as enforcing an email policy, searching and retrieving data, and placing litigation holds. Being able to place litigation holds is especially important so you can save yourself from receiving a guilty verdict due to spoliation.

At Fortiva, we often hear from IT professionals who are confused about the meanings or implications of legal discovery terms.  If that sounds like you, then this series of definitions with related case examples should help you to better understand your legal counsel or HR department the next time you face an eDiscovery request.

Legal Discovery
Basically, legal discovery is a part of the pre-trial phase in a lawsuit when the parties involved in litigation can request documents and other evidence from the opposing side.  The parties can compel the production of evidence by using a subpoena or other discovery devices such as request for production and disposition.  Essentially these discovery orders can target any source of data within an organization, be it electronically stored or on paper, but frequently the email system and file servers are at the top of the list. According to Socha Consulting LLC, for the average litigation case, email represents 80% of the requested documents.

FRCP
The Federal Rules of Civil Procedure (FRCP) governs the conduct of all civil actions brought in the U.S. Federal district courts. Recent amendments made to the FRCP require all companies to retain all their corporate correspondence (including electronic online records) and make them available to the court in case of a lawsuit, without the court having to ask for them specifically.  These amendments were developed to make court proceedings more time-efficient. A brief description of the new amendments and its implications on electronic records retention and management can be found here.

ESI
The Sedona Conference defines ESI as electronically stored information, regardless of the media or whether it is in the original format in which it was created as opposed to stored in hard copy. With over 70% of business-critical information being stored in email and other electronic messaging resources, ESI has become an increasingly important source of evidence in lawsuits today.

eDiscovery
Electronic discovery is commonly referred to as eDiscovery and is defined as the process of identifying, collecting, preparing, and producing ESI for the purpose of obtaining evidence in a legal process.

Litigation Hold
A litigation hold is a communication or process used by companies to advise their employees of pending or anticipated litigation and ensure that relevant records are not destroyed. Relevant records are documents that may pertain to the upcoming litigation and according to the FRCP, this includes email messages and attachments. Failure to preserve documents for a litigation hold can have very negative consequences during a trial (see spoliation below). A litigation hold may also be referred to as “legal hold”, “preservation order”, “suspension order”, “hold order”, “hold notice”, or “freeze notice”.

Spoliation
Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for use as evidence in pending or foreseeable litigation, audit, or government investigation. Spoliation is considered a criminal act, regardless of whether the records were destroyed intentionally or accidentally, and may result in fines or incarceration. It can also lead to a negative inference finding that can ultimately lead to a guilt verdict.

To effectively prepare for litigation, your organization must be familiar with the laws and regulations that impact your industry. Additionally, it is crucial for firms to have effective technologies in place so that they are able to respond to legal discovery requests and avoid spending a considerable amount of time and money in litigation. Later posts in this series will look at the above defined terms in more detail and provide actual case examples where a lengthy lawsuit could have been avoided had the firm implemented an effective email archiving solution.

Reducing the Risks, Costs and Time of e-Discovery: EDRM and Email Archiving

Posted by Rick Dales, VP Product Management

This week I participated in a live webcast at Fortiva that discussed how an email archive can reduce the cost, risk and time involved with e-discovery. I thought it might be helpful to share some of the ideas from that event here on the blog.

A lot of people use the Electronic Discovery Reference Model (EDRM) to explain the steps involved in the e-discovery process. Since having an email archive significantly changes how a company deals with the first four phases of the model, I’m going to focus on those areas (as they pertain to email). First, I’ll explain what each step involves, and then provide a general sense of the time and costs involved (with and without an email archive).

Ultimately, as the diagram below shows, having an email archive in place can dramatically reduce the costs involved with e-discovery, not to mention the risks.

1. Information Management – This is the first step in the model, and it refers to the organizing of information and the application of consistent retention policies. 
   

   Today, most firms have poorly defined retention policies and little, if any, way to enforce them across the organization. As a result, most companies dedicate very little – if any – budget to this step. The problem is, with no enforced policies, businesses are at risk of spoliation from destruction of data that should have been retained during a lawsuit. They also may be exposed to excess legal risk by maintaining data beyond the retention policy.

   By adding an email archive which captures a copy of every email message and applies consistent retention policies, a company can avoid these risks. Proactively capturing email into a central, searchable repository also increases visibility, and allows legal counsel to conduct early case assessment. It also makes future steps in the EDRM process faster and less expensive.  However, adding an archive requires a company to dedicate a moderate budget amount upfront.

2. Identification – This step basically involves determining where – and in what format – email exists.

   Without an archive, this may require IT to find and catalog backup tapes, PST files (on the corporate network, individual laptops and desktops, and portable storage devices), and email servers. The hard costs are generally fairly low, but the time and effort required by IT can add up significantly.

   By adding an email archive, this step can essentially be eliminated, especially if a company takes steps to eliminate the use of PST files. Since all email is stored in the archive, it is a single source from which all e-discovery requests can be met.

3. Preservation & Collection – Preservation means ensuring that email is protected against destruction or alteration (generally after a litigation hold), while collection refers to the gathering of email from the various sources catalogued in the identification phase. These two steps can sometimes overlap.

   Without an archive, enforcing a litigation hold manually (by asking individuals to retain information) is a hit or miss situation. Even if you can ensure that all relevant information is preserved (ie. by storing complete backup tapes), you will almost always end up retaining more data than necessary – potentially exposing the business to additional risk.

   With an archive in place, the preservation & collection process is radically reshaped. With all data stored in a central location, there’s no need for collection at all. The archive also allows you to easily enforce a preservation/hold order for only the data required, without risking additional data deletion/spoliation of evidence (in Fortiva’s case, a litigation hold can literally be enforced with a click of a button).

4. Processing, Review & Analysis – This phase involves the preparation of data, as well as the review and analysis of that data. This is where the most dramatic time and cost-saving benefits can be achieved with an email archive.

   Without an archive, this generally involves restoring backup tapes and removing duplicates, which can be an extraordinarily expensive process (the average cost to restore a single backup tape is $2,500 and some businesses may have hundreds of tapes to restore). This is also when the initial culling process takes place - eliminating unnecessary documents in order to reduce the amount of data that needs to be manually reviewed. Since processing work is typically done by third parties with limited culling capabilities, the resulting dataset that needs to be reviewed is generally very large.

   With an archive in place, all the data is stored in a deduplicated fashion, and it can be searched and reviewed at any time.  This allows businesses to conduct early case assessment before meeting with opposing counsel (or even before a formal case is filed).  A powerful search feature also makes the culling process more effective, ultimately reducing the amount of data that needs to be reviewed and analyzed.

5. Presentation – Since theoretically, the same dataset will be produced following the first four stages, an archive has no material impact on production and presentation costs.

As you can see in the diagram above, an archive involves moderate incremental costs in the information management phase (regardless of whether or not you’re involved in litigation); however, it dramatically reduces the total cost of the e-discovery process when a request comes up. Ultimately, even if you only have one case that requires e-discovery over the course of three years, it still makes economic sense to implement an archive (based on Fortiva’s pricing). This is true without taking into consideration the additional risks (and potential costs) that come with not having an archive in place.

Litigation Hold Loopholes – Preventing End-User Deletion

Post by Rick Dales, VP Product Management

Last week, an interesting post appeared on StorageSoup, a SearchStorage.com blog that provides commentary on the storage industry. The post, titled FRCP looking like a PITW (Pain in the Wallet), identifies some of the potential loopholes a company can face trying to enforce a litigation hold. It also questions whether technology exists to address these loopholes without forcing an organization to literally keep every email indefinitely.

The quick answer to that question is yes (in fact that’s exactly what Fortiva’s on-demand email archive offers), but I thought it would be worthwhile to address some of the challenges mentioned in the blog entry in a bit more depth. Considering that the post was written by Tory Skyers, a Senior Systems Engineer who has hands-on experience dealing with multiple litigation holds and who regularly writes on storage issues, the confusion around how to best enforce a litigation hold is obviously hitting even the most seasoned IT professionals.

Here’s a quick rundown of Skyers’ main concerns, followed by my thoughts and recommendations:

1. Some trials last a loooooooong time, and the costs of storing the data requested for litigation hold on WORM are very significant. Despite this, the potential risks and costs of not having the data available can be so high that businesses can’t afford not to store relevant data once a litigation hold comes into affect.
   
   
   1. As Skyers mentions, some cases can last five years or more and the cost of storing this data starts adding up quickly. The whole process can also be time-consuming for IT, and there are no guarantees that data won’t be corrupted. So not only is this approach expensive, it’s risky too. Having said that, the risks of not storing the data can be even higher. The key is to find a more cost-effective, reliable way to store the data (ie. an email archive).
2. There’s a “Safe Harbor” clause in the FRCP that absolves companies of responsibility if the company has — and strictly follows — a deletion and retention policy. This protects the company from falling afoul of the regulation, but does my act (as an end user) of deleting an email fall under the “Safe Harbor” clause?
   
   
   1. The quick answer is no. The “Safe Harbor” clause protects organizations from being penalized for deleting relevant information before a litigation hold comes into affect, assuming the data was deleted according to a stated deletion and retention policy. If an end user is allowed to delete an email (accidentally or intentionally) that is covered by a litigation hold, or that has not yet reached the corporate retention period, it can be considered spoliation of data.
      
      Spoliation is the withholding, hiding, or destruction of evidence relevant to a legal proceeding and is a criminal act in the United States. It can result in fines and/or incarceration for the parties who engaged in the spoliation. It can also lead to a negative inference ruling that can ultimately lead to a guilt verdict.
      
      To avoid this, companies should have technology in place to ensure that email data cannot be deleted by an end-user until both of the following criteria are met: a) it has reached its retention period and b) it is not covered by a litigation hold.
3. I’ve seen some precedent that leads me to believe that simply having and following a policy is not enough… So as it relates to e-discovery, if a company allows [me] to delete my own emails, are [they] implicitly approving of me disobeying retention and deletion policy?
   
   
   1. In a way, yes. The key to meeting the FRCP guidelines is having and enforcing a policy. If you believe your end-users can be relied on to accurately enforce your policy (and not make any errors), then it is sufficient to simply have a policy and rely on your employees. Otherwise, you better have some technology in place that enforces your policy (including litigation holds) and prevents human error.
      
      In fact, a case in point is the recent Intel vs AMD lawsuit. Intel executives were informed of the litigation hold retention requirement, but many of them deleted email anyway. Regardless of whether the email deletion was intentional (or whether it was simply human error), the company was guilty of spoliation.
4. It seems like I would have to have CDP in place and store every email entering and leaving every mailbox forever to be really covered against every contingency.
   
   
   1. Fortunately, it’s not that bad. Once an email reaches the lifecycle outlined in the corporate retention policy, it can (and should) be deleted (assuming it’s not covered by a litigation hold). There is absolutely no need to keep everything forever (in fact that would raise a company’s risk profile significantly).
      
      The question is, how should you store your email? Skyers accurately points out that relying on a backup process may be insufficient, since any data that is sent or received, and deleted in between backup periods may not be retained. Beyond that, it is virtually impossible to apply a consistent retention policy against data on backups, since a single tape necessarily contains emails crossing a wide span of time. Backup tapes also have a high rate of corruption/failure, making them an unreliable.
      
      To keep all the data that enters your corporate email system for as long as necessary (and no longer), you really need an email archive like Fortiva, which captures every email that is sent or received, and keeps multiple copies in unalterable format on spinning disk until they meet the retention policy.

So all this leads to one conclusion –an email archive is really the most foolproof way to avoid the many possible loopholes when dealing with the FRCP requirements for email retention, litigation holds and e-discovery. At the risk of being self-promotional, here’s a run-down of how Fortiva meets all the requirements and addresses the concerns raised by Skyers:

• Cost-effective storage: Fortiva’s SmartStore archive stores a redundant copy of every email sent and received according to the customer’s retention policy in a centralized location. It requires virtually no effort on the part of IT, and it starts at just $1.10 per user, per month for 1000-user company. It also offers storage management features that allow a company to significantly reduce the burden on the Exchange email server.
• Litigation hold: Fortiva allows legal or IT to enforce a litigation hold against relevant email indefinitely with a click of a button in a web-browser interface.
• Policy enforcement: Fortiva allows you to develop granular policies (including different retention policies for different departments, individuals, and types of data), and automatically enforces those policies.
• Redundant storage: Fortiva stores multiple copies of every email in unalterable format on spinning disk, and keeps an additional copy in a secondary location. The system also provides continuous data validation across all archived data.

It’s important to note that not all email archives offer the same functionality. There is a whole class of email archives that were designed primarily to address email storage management issues, and those typically allow end-user deletion/deletion outside the retention policy (introducing many of the problems highlighted above). But that gets into topic in itself. In my next post, I’ll explain the different types of email archive, and the situations that each type is best suited for.

According to Analyst Firm, Fortiva Provides Best-in-Class e-Discovery Capabilities

Posted by Victoria Badgley, Marketing Communications

Today, we announced that according to a report from the Aberdeen Group's, Fortiva offers Best-in-Class e-discovery capabilities for email. The analyst report, "e-Discovery and Message Archiving: Can Your Business Afford to Be Served," is available for download from the Fortiva site.

To achieve Best-in-Class status, companies must recover archived data in less than one hour and respond to legal discovery requests within the requested timeframe over 80% of the time - a standard that can easily be met with Fortiva's search guarantees. The report also states that Best-in-Class companies save an average of 38 percent in legal discovery costs over the course of a lawsuit, and 91 percent reported that they avoided paying fines or losing legal proceedings as a result of their e-Discovery processes.

The full report provides a roadmap to understand the requirements and best practices for implementing an e-Discovery and message archiving solution in order to minimize litigation and regulatory compliance risks. You can visit the Fortiva site or click here to download a free copy.

The e-Discovery Search Quandary – Justifying the Cost of Infrequent Searches (Part 5 in a Series of Search)

Posted by Rick Dales, VP Product Management

In our previous posts, both Chris and I discussed the significant investment in infrastructure that is necessary to provide fast, reliable search of corporate email. Even just a few years ago, this wasn’t a big issue for most businesses because they simply weren’t conducting searches across the entire email repository. However; in our increasingly litigious society, the growing costs that come from e-discovery are forcing more and more businesses to address the notion of "litigation readiness" – which inherently requires the ability to search email to isolate materials relevant to a given case. 

For companies that live under the cloud of a perpetual cycle of lawsuits, a variety of new technologies and processes have emerged to help people manage, collect, review and produce information for litigation.  Unfortunately, these approaches are often very expensive and can't be justified by the majority of businesses that only periodically face litigation hold and/or e-discovery activities -  a point that was reinforced by a recent survey that showed 1 in 5 businesses have settled a case to avoid the cost of searching through and retrieving email. 

For a company with a relatively long standard retention period (something that is becoming the norm), legal must be able to mine through a constantly-growing set of emails. This is particularly problematic because the cost to provide relatively quick searches doesn't grow linearly with the data growth, but instead, in most systems it grows exponentially. As difficult as it often is to justify the costs of "preventative" technologies (such as email archiving for litigation readiness), a system with rapidly increasing costs is even harder to justify.

Software-as-a-Service (SaaS) is a perfect model for addressing these types of challenges. Here’s why. When an e-discovery request comes in, most companies need powerful e-discovery capabilities with very little advanced notice; however, the rest of the time, they’re unlikely to need that search capability. Instead of building a system in-house that is underpowered when it's needed and wasteful the rest of the time, SaaS allows firms to readily access a pool of resources on-demand to meet their needs.

By spreading the cost of a large infrastructure over many customers, each of whom are unlikely to need the system at the same point in time, users get maximum capabilities at a far more justifiable, predictable cost.  To scale without bounds, SaaS companies like Fortiva are forced to build infrastructures whose cost does not grow exponentially (or it would be less and less profitable to take on new business).  This technology investment gets further passed along to the customer base so that costs per unit of data stored/processed go down over time.

Just like buying insurance, litigation readiness is about reducing risk and preventing significant, unexpected (and unplanned) costs.  There is the cost of enforcing a litigation hold; the cost of e-discovery activities and the cost of increased litigation risk by not having (or having access to) critical data – not to mention the costs of negative judgments. So it’s not surprising that litigation readiness – much like insurance again – can be a challenging thing to justify, especially when lawsuits aren't part of your firm's daily life. SaaS solutions can prove to be the best way to balance these needs.

Click here to read Part 6 in the Series on Search

Qualcomm Update: Is Your Legal Counsel Paying Attention Yet?

Posted by Alan Armstrong, VP Business Development

I wrote a few weeks ago about the impact that the updated FRCP Regulations have had on Qualcomm. More specifically, I referred to the potential impact on the individual lawyers retained by Qualcomm, and the retained firm, Casebeer, who were engaged in Qualcomm’s patent litigation with rival Broadcom. 
After failing to present critical emails related to the case, the attorneys were required to defend their e-discovery processes, under threat of personal sanction.

Well, there is an update. On January 7, Judge Major entered her decision. The court accused the offending lawyers of "exceptional misconduct" for failing to properly supervise the discovery process, and referred six of those attorneys to California Bar for disciplinary review and required counsel to appear in chambers for CREDO review.

It seems to me that this is a precedent-setting case that should make legal counsels sit up and take note. The implication is that attorneys can be found personally liable for ensuring the organization they represent is effectively meeting its e-discovery requirements. What’s really scary though is that they have very little recourse if they were acting in good faith, but the organization undermines that.

I’ve been talking about this case with Arthur Smith, ESQ, of Husch & Eppenberger. Arthur calls it “The Qualcomm Dilemma”: On the one hand, client/attorney privilege does not allow lawyers use certain protected information to prove that they were following regulations. On the other hand, valuable proof may exist in those privileged and protected documents. So in this case, there may be proof that the lawyers believed that all relevant documents were being presented, but that proof will never come to light because it is protected by Qualcomm’s client-attorney priveledge.

As Arthur alliterated, counsel must Prove Prudent Practices in Preserving and Producing Electronically Stored Information. The evidence for their defense comes out of the testimony of those involved in the process, but not out of the privileged documents themselves.

She wasn’t kidding around, was she? It is the personal responsibility of lawyers to ensure that e-Discovery is done right. Paying attention yet?

Do you want to know how companies are dealing with FRCP?

Posted by Victoria Badgley, Marketing Communications

Do you ever wonder how other legal teams are dealing with the growing challenges posed by FRCP and eDiscovery? Now is your chance to find out.

Fortiva has commissioned an independent research firm to conduct a survey examining how legal departments are dealing with eDiscovery in light of the recent changes to FRCP. In return for your participation in this 5-minute survey, you will receive a free report outlining the results of the survey to help you to assess how you and your organization compare with your peers. You could also be the winner of a $300 gift certificate from Amazon.com.

To complete the survey online, please click on the URL below, or copy it into the address bar of your browser.

http://surveys.itracks.com/wix/p4018172.aspx?NL=6   

Please be assured that your information will be used solely for this survey and will not be sold or used for any other purpose.

Email Archiving and Risk Reduction: 7 Things to Know (Part 1 of 2)

Posted by Rick Dales, VP Product Management

In a recent Computerworld article entitled "Seven things to know about reducing risk with an e-mail archive", Bert Latamore shares with us the opinions of four Wikibon.org community members: Josh Krischer, David Floyer, Peter Burris and David Vellante on the subject of email archiving and risk. While they make some valid points, and the seven “risk-reducers” are worth considering before you purchase an archive, there are also some overly simplified recommendations in the piece. 

As an email archiving vendor that has converted customers from virtually every solution out there, we've learned a lot about where people's email archiving implementations go wrong (as well as what works).  I thought it would be worthwhile to review the seven items in light of feedback from our customers and how Fortiva approaches the relevant challenges. In this post, I’ll cover the first three points, and I’ll address the remaining four in a follow-up post.

1. Focus on the issue of risk when selecting the technology for the base archive.
This is a valid point – while some people look at an email archive solely as a way to move data off of their overburdened mail system, if an email archive is ever going to be used to address legal discovery or compliance requirements (and it’s almost a given that it will at some point), these considerations must be first and foremost in the selection and implementation of an archiving solution. 

Since the article doesn’t go into specifics on what an archiving solution should have in order to effectively reduce risk, I thought I’d do that here. For discovery and compliance purposes, you must ensure complete, authentic capture of data and consistently apply retention policies.  As a result your solution must have:

• a robust policy engine that can systematically classify messages for retention (not just treat everything as a keep forever black hole)
• a way to isolate specific messages to apply a litigation hold to (while still being able to dispose of other items that have met their retention period)
• all disposed data be unrecoverable as soon as its disposition has been authorized - digital fingerprints on all content to prove that it hasn't been tampered with
• a data capture process that can never loose data due to system or network failure

2. Good procedures are more important than access speed.
Again, this is true, but the article misses a few salient points (and lacks specifics on what to look for).

An inconsistent archive creates, rather than mitigates risk.  While the exact rules for the retention of information are up for debate, the consistent application of a company's stated policies is not.  If you are going to rely on an archive to reduce risk you need to:

• Ensure all changes to the system (and the policies applied to the data) are fully audited so that you can explain why any message was retained for the period it was
• Have multiple (redundant) copies of all data, including indexes, to ensure that equipment failure does not result in data loss
• Have offsite copies of the data to protect this asset in case of disaster
• Ensure that no unauthorized user can access the data (this includes database or storage administrators)

While sound data management procedures are critical, the argument that 48-hour turnaround on legal discovery activities is “fine” misses a key point about risk:  Instant access to mine through data allows legal counsel to assess the risk involved, determine how likely they are to win the case, and make educated decisions about how to proceed.  With the ability to perform "pre-discovery" investigations, firms can choose to settle or fight a case based upon real insight into the information they have on hand. So while quick/real-time access to data may not be as necessary as enforcing consistent procedures, it certainly is a very valuable feature to have, and one that should not be ignored as a risk reduction tool.

3. Do not archive e-mails from before the archive was created
This is an interesting perspective, and one that certainly has its merits. It’s true that importing historical data to an archive can be an expensive, labor-intensive process and it may not make sense for every company. However, while Floyer makes a valid point that imported historical email will rarely, if ever, represent a complete record, he misses a key way that importing old email to an archive can reduce risk.

Being able to ensure that you don't keep things longer than your stated policy allows cannot be underestimated as a risk reduction tool (as Floyer covered in point #2) – and this is something that an archive can address, assuming you follow the right procedures.  If you archive historical email at the start of an archiving project with the hope of reducing risk, it is critical that you delete the imported email data stored in various places on user laptops, desktops and file servers (ie. in PST files). That way, you can enforce a consistent retention policy on all your email data, dramatically reducing risk.

On the other hand, if you allow users to keep their PST files, while ingesting a copy of them into the archive, the only potential risk reduction you gain is from easy search access for "pre-discovery" investigation. Another thing to remember – it is important to try to import your data right at the beginning of the archive implementation and record when these activities happened, so that you can explain, if called upon, that data prior to a certain date is not a complete set. 

As for the cost of importing the data, each vendor's solution is different.   As a service provider, we charge based upon the amount of data imported.  Importing data from a legacy archive almost always pays for itself, because the legacy system would otherwise need to be maintained in parallel.  When it comes to "unmanaged" data, such as PST files, the initial cost may seem harder to justify.  It's worth understanding, however, that unless you prevent users from adding to their local storage of email data, your risk profile doesn't change with the addition of the archive.

In my next post, I'll address the remaining four recommendations from the article.

Intel Faces Up to E-Mail Retention Problems in AMD Lawsuit

Posted by Chris Tebo, CTO

Link: Intel Faces Up to E-Mail Retention Problems in AMD Lawsuit.

As Chris Preimesberger reports in this article in eWeek, Intel is facing some major legal issues in their fight against AMD - largely because their internal email archiving solution isn't doing what it's supposed to. Essentially, they've admitted that some emails that are considered evidence in the trial have been accidentally deleted/destroyed.   

I have to say, it's pretty scary that a company as technologically advanced as Intel could find themselves in this situation.  With the new U.S. federal court rules (enacted Dec. 1, 2006) requiring companies to be able to quickly find and produce email data when required by the federal court, this won't be the last we hear about situations like this.

I'm bringing all this up because it's a great example of the type of problem that a SaaS solution can have a huge impact on. For a company that's hit with an unexpected lawsuit, installing email archiving in-house in time to issue a litigation hold is simply not feasible. It's a complex and time-consuming process that often requires some degree of in-house expertise. So that's where your SaaS email archiving solution (insert self-promoting plug for Fortiva here) comes in.

With email archiving on demand, businesses can be archiving in a matter of days, with very little long-term commitment. Since you're not paying for hardware or infrastructure upfront, there's no major budget required. And if you decide after trying it out that you're not happy, you haven't wasted months (or even years) of your IT department's time planning and deploying.

This is just one example of the type of software businesses might be willing to take a chance on (and ultimately learn they can't/won't live without) because SaaS makes it accessible.