Information Faster Blog

Save $100 when you register now for HP's Information Management sessions at Software Universe

By Patrick Eitenbichler

HP Software and Solutions’ Information Management suite will be featured at the upcoming HP Software Universe 2010 in Washington DC, June 15 – 18th, 2010.

The IM suite, including HP Data Protector, HP Email, Database and Medical Archiving IAP, and HP TRIM records management software, will be represented in two tracks:

  • Data Protection

  • Information Management for Governance and E-Discovery

Customer case studies and presentations from product experts will highlight how HP’s Information Management solutions provide outcomes that matter. For more information about this event, or to register, please use code INSIDER at and get $100 off the conference rate.

How three very different companies are managing rapid database growth

By Patrick Eitenbichler

Wanted to share three great customer success stories. The companies are very different from each other, but they’re all grappling with business challenges posed by surging data growth: meeting compliance obligations, controlling storage costs, and optimizing performance. The companies turned to HP Database Archiving software to solve these problems, and more.

Tektronix, a U.S.-based provider of test and measurement solutions to the electronics industry, improved application and database performance by more than 47%, and aced compliance tests in 29 countries, despite data growth of 1.25 GB per month.

Tong Yang Group, a Taiwanese automotive parts manufacturer, experienced data growth at a rate of 30-40 GB on average per month - impacting database performance and causing
user-related issues. Tong Yang saw an immediate 10% increase in efficiency in handling orders, and they gained the ability to support 7% business growth in 2009 despite the economic recession.

Turkey is both a private financial services company and the country’s central depository for dematerialized securities. The agency’s database grew 1000 times in a one-year period, due in part to industry regulations requiring financial services firms to store more data for longer periods of time. With HP Database Archiving software, the agency met its growing data archiving needs while reducing storage costs by 50%.’s Central Registry Agency

To learn more about how these companies overcame their database growth challenges, click on their corresponding names above.

HP TRIM for SharePoint and the Enterprise – Launch vs. Reality

By Kris Brown 

We launched HP TRIM 7 last week, and for the most part the press coverage was about the new SharePoint integration. Now don’t get me wrong, as one of the team that is responsible for the product and the launch, I would say we accomplished what we set out to achieve regarding our SharePoint support. But what we actually set out to achieve beyond that, may not necessarily be as apparent from what you read in the media.

In the press last week we saw a lot of this…

“The fact that a large company like HP recognizes the need for this type of management in the enterprise is significant. Companies are being flooded with information, while at the same time, they come under increasing pressure to monitor and in some instances, control this information.”    Fierce Content Management

 “Given the number of organizations that are now using SharePoint and are considering SharePoint 2010, the new HP TRIM modules are quite timely and probably not the last module we are likely to see for TRIM.”   CMSWire

And yes, HP TRIM 7 can seamlessly manage SharePoint content, not just documents.  Yes, it can help an organization archive information based on our lifetime management policies.  And yes, I think that we are extending SharePoint to a place where almost any organization could consider it for their frontline information collaboration platform.  But that’s not all we introduced in this launch!

HP TRIM also introduced a range of other new product features and enhancements. So here is a laundry list of highlights that hopefully will put some of the constabulary at rest… for now...

ThatTRIMGuy’s Top Ten HP TRIM 7 Enhancements (sans the SharePoint Integration):

10. A brand new SDK set, including SDK.NET and SDKUI.NET.  Separating our user interface components from our standard SDK, enables our partner and developer community to build even more extensible add-ons for HP TRIM 7;

9.   While this isn’t necessarily a functional enhancement, the acquisition of TOWER by HP, has meant that HP TRIM now has access to all the power of the testing and performance tools that HP development teams have. Which only means good things for the customer base!

8.   Full DoD 5015 v3 certification including all chapters Baseline, Classified, FOI and Privacy, ensuring HP TRIM continues its tradition of being one of the most certified products on the market. For the record, SharePoint 2007’s certification has expired and SharePoint 2010 doesn’t have DoD certification at the writing of this blog;

7.   Unicode support, ensuring our ability to move towards providing access to HP TRIM in all markets around the world;

6.   New search engine improvements, including parametric searching, and the ability to provide effective filtering by a search;

5.   User settings that follow the user through all of the HP TRIM 7 interfaces, such as favorites, recent documents, saved searches and even labels (which are now hierarchical);

4.   New Mini Crash Dump facilities to help you and the help desk provide detailed error information;

3.   New architectural features, like providing more efficient transport of database requests in WAN environments, for even faster search results;

2.   New workgroup features including distributed event processing, allowing multiple workgroup services process a single event type for an even more scalable solution; and

…. the # 1 HP TRIM 7 enhancement…. a brand new Web Client!

But this is only a short highlights reel, there are many other significant improvements, including 64-bit support, improved record type scalability, new email drag and drop functions, schema report and repair, and updated platform support.

So don’t judge a launch by its press coverage alone… If you’re reading this… then the coverage did its job. But as you can see above, HP TRIM 7 has introduced significant new features and improvements for all of our customers!

If you are in Australia in late March, be sure you register for TUF 23, our annual user forum.  If not, look out for HP TRIM 7 at an industry event near you!

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What would you say if... An HP TRIM for SharePoint Primer – Part 2

By Kris Brown 

What would you say if I told you, you can have fully compliant records management for SharePoint, without the hassle of doing records management (RM).  You’d probably say I’ve already read that blog, and it's time you told me something else.

Then what would you say if I told you that you can archive SharePoint sites, using automated rules to a Department-of-Defense-compliant Records Management platform.

HP TRIM 7 has recently introduced a new module that does just that.

In conjunction with the new HP TRIM for SharePoint Records Management module, HP is proud to announce the HP TRIM for SharePoint Archive module.

This module makes use of the same set of functions provided to the RM module, including Lifetime Management Policies, but allows organizations to manage, finalize, relocate and archive information from the site level and above.

Have you ever been involved in a project team that utilized a team site for collaboration?  How many times did you revisit that site after the project ended?  Probably not very many, if at all.  However, I’d be almost certain in saying that this team site still exists, is still being crawled by SharePoint, and is still returning results for searches.  While that might be important for a short time after the project ends, it is likely that a lot of the information created on that site will become stale, and perhaps even inaccurate.  Returning results from this site, could lead to an incorrect decision in the future.

SharePoint performance will also be affected by this continued growth of team sites. This is one of a  number reasons for CIO’s not formally deploying SharePoint across their entire organization.  The lack of control of the growth of SharePoint or put another way, the success of SharePoint to capture the users' information, is a key reason to put in place a records management system.

I hear you say is that you don’t want your users to be burdened with Records Management.  Well, HP TRIM 7’s Archive Module utilizes Lifetime Management Policies to seamlessly transfer information from SharePoint in the form of entire sites, and site collections to HP TRIM.  No user interaction is required, other than to use SharePoint in the way it was designed.  The records management burden is removed from the user while records management rigor is applied to important information as deemed so by the Records Manager.

And let’s be honest…  90% (or maybe even higher) of any given user base cares very little for the regulatory needs of an organization… But the organization still has those needs. HP TRIM 7 can meet you in the middle, allowing the experts in records to manage the information, and the experts in their fields, HR, Finance, Operations etc etc, get on with using SharePoint as a tool to get their work done.

Watch for more HP TRIM 7 updates…  including all things NOT related to SharePoint.

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What would you say if... An HP TRIM for SharePoint Primer – Part 1

By Kris Brown

What would you say if I told you that you can have fully compliant records management for SharePoint, without the hassle of actually doing records management (RM)?

Or if I told you that you can let your user base collaborate freely in SharePoint, without the fear of losing control of the critical business information?

I suspect you’d say:  GREAT, but what’s the catch?

There is no catch. HP TRIM 7 has recently introduced a pair of new modules that do just that.

And this solution is coming not a day too soon. SharePoint sites the world over are housing more and more business sensitive and business critical information, and CIOs, IT and Storage Managers are constantly asking how are they going to control not only the growth of their SharePoint environment, but also the records that are contained within SharePoint.

So here we go...  The HP TRIM for SharePoint Records Management module introduces four new features to the RM space in SharePoint.

  • Manage

  • Finalize

  • Relocate

  • Archive

These four features provide the capability to capture and manage any SharePoint content. Not just documents, and definitely not just things in a specific web part!

  • Manage – This feature allows you to take a copy of the object and put it in HP TRIM, where metadata, retention, classification and security are all applied automatically, according to rules set in SharePoint.

  • Finalize – This feature allows you to take a copy of the object and put it in HP TRIM, where metadata, retention, classification and security are all applied automatically, according to rules set in SharePoint and mark it Final. So no further edits can be made.

  • Relocate – This feature allows you to move the object and put it in HP TRIM, where metadata, retention, classification and security are all applied automatically, according to rules set in SharePoint, and still allow it to be edited from HP TRIM.

  • Archive – This feature allows you to move the object and put it in HP TRIM, where metadata, retention, classification and security are all applied automatically, according to rules set in SharePoint, and mark it Final, so it cannot be edited.

The powerful Lifetime Management Policies in HP TRIM 7 are a key enabler for these new capabilities. They are built into SharePoint, and provide a Records Manager or SharePoint Administrator with the ability to set rules around ALL different types of SharePoint content (not just documents!).

For example:

On a SharePoint HR team site, the HR users might go through an employee on-boarding process, with applications for jobs, interviews and the like. This type of information would require all sorts of different retention, classification and security. Based on SharePoint Content Types, user names and the metadata required by the SharePoint team site, HP TRIM’s Lifetime Management Policies can automatically place those objects including calendar items, announcements, and discussion items directly into the HP TRIM Records Management platform.  Once there, they will be managed according to the rules set by the administrators -- all without the need for the user to interact with TRIM.

In fact, users will not need to see HP TRIM or even have it installed on their desktop. They can continue to work in the SharePoint environment they are familiar with and the organization can feel safe in the knowledge that the information created is managed in the way that the Information Management policies of the business dictate.

It certainly doesn’t get any easier, or more transparent than that !!

Check back for Part 2 – HP TRIM for SharePoint – Archive Module.


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HP TRIM 7… How we got here?

By Kris Brown

With today’s launch of HP TRIM 7, I thought it might be time to reflect on how we got here. So for effect, blink your eyes very quickly alternating from left to right, to have us fade into a dream sequence.

The year is 1985. Ronald Reagan is sworn into a second term as US President.  “We are the world” is released to raise funds for the famine in Ethiopia. Mike Tyson wins his first professional fight, and Michael J Fox stars in “Back to the Future”. Norway wins the Eurovision song contest, and Australia pulls out of the MX Missile project.

Here in Australia, 1985 is the year that a gentleman by the name of Brand Hoff and his partner Peta Hoff founded a small business called TOWER Software, in a garage in Canberra – Australia’s capital. The purpose of the business was to develop tools to help with the recently created Australian Standard for Records Management, the AS 4390. The first series of these tools were a card based system, for want of a better explanation, like a Dewey Decimal library system that allowed organizations (mainly Australian Government departments) to meet their compliance requirement forced upon them under the newly created standard.

Times changed, and so did the government… slowly… but TOWER Software and the IT industry in general ploughed forward. TOWER Software then released its first computer based product, a physical records management system for the VAX. Then came early Windows versions of the software, and in 2002 TOWER Software released TRIM Context v5, a platform for Document and Records management. It was this year that I joined the fray.

I had no prior experience with records management, and it didn’t really matter all that much as I was only a part of the team responsible for the TOWER Software office network. But it wasn’t long before I gained a strong appreciation of what the team around me was so passionate about. Joining the sales team, in a series of technical roles over the coming years, I got to know the customers and the challenges faced by these same organizations that Brand and Peta had endeavored to help some 20 years back.

TOWER’s records products were seen as one of the best in the market, but analysts were forced to comment that the reach of a small Australian company meant that it was going to be hard to break into the bigger markets, like the US and Europe. Hard… but not impossible, as TOWER successfully implemented some of the largest and most awarded implementations of information management software on the planet.

Market consolidation meant that lots of little players were gobbled up, as the larger vendors strived to meet the ever challenging demands of the marketplace, picking up technology from these smaller companies and making them a part of their overall product line. Hewlett-Packard, one of the largest IT companies in the world, did the same, acquiring TOWER Software in 2008, but with one subtle difference. Rather than cannibalize the technology and abandon the product, they kept almost all of the staff from the TOWER acquisition and told them to build the next version of what is now known as HP TRIM.

And - there were no other products that HP TRIM had to compete with internally unlike a lot of the other acquisitions: IBM/FileNet, Opentext/Hummingbird/Vignette, and Autonomy/Zantaz/Interwoven/Meridio. HP wanted to concentrate on the product that was HP TRIM, and add the backing that only a company like HP can bring to a product.  And so, HP TRIM 7 was born.

With a series of new innovative features such as transparent records management for SharePoint, backed by the 25+ years of information management industry expertise, HP TRIM 7 is a firm commitment to its current and future customers. We’re confident we have a product that not only can compete on the big stage, but can continue to do what it has always done: Provide excellent solutions to information management problems.

This all started in 1985… Old Coke, became New Coke and then very quickly became Old Coke again. Records Management was a requirement back then, and while document management has been the flavor of the month for a while, the world has changed and information management is now more important than ever. And just like Wrestlemania, HP TRIM is still here to help!

Check out some of the new stuff at!

I personally was lucky enough to be a part of this ride for many years and while I am still waiting to buy my first Hoverboard, I can’t wait to see what we do next with this product.

That TRIM guy

Look to the Future for Litigation Readiness

By Mike Peebles

As I work with organizations investing in litigation readiness, I come across individuals that are new to the role and those that are more seasoned in this field. Those that are new to their role seem to be less than enthusiastic about their new found job responsibilities and indicate that they “missed the wrong meeting” or they “drew the short straw.” I admit that I laughed-out-loud when Don with the Office of the Medical Inspector at the Department of Veterans Affairs mused that “For my sins I was put in charge of our archives…”. Listen to the complete 9 minute recording here.

If I contrast this demeanor with those that have been working on litigation readiness for a longer period of time I find the difference when they realize that they don’t have to solve the problems for existing litigations but rather look at their organizations' litigation trends and prepare for the future.

What an opportunity! By nature I think it makes humans feel better to complain. Often when we express our dislikes or frustrations and “get them off our chest” we may not have solved anything but find solace in the fact that the person  listening to us shares the same dislikes & frustrations and we’re not alone. With litigation readiness though, we can open our doors to understanding these problems to help us focus on where to start to “get our electronic house in order.”

So if you’re new to the litigation readiness team – look to the future. If you’ve been working on litigation readiness for some time – thanks for listening.

Labels: E-Discovery

Structured Records Management - Taking control of the structured data

In my last post I spoke about how the transfer of structured data from the source system into the records management system works. Now that we have covered this step, lets look at some of the special features that you want to manage structured data as records.

Like any other record, you want to be able to preserve the authenticity, reliability, integrity and usability of the data.  The authenticity is maintained by the system storing an audit trail of the whole transfer process and any subsequent actions taken on the records. The reliability is based on the collaboration of application owners and records managers in the definition and classification of the structured records model, which means that the transferred data is based on a design by people who know all the facts about its source and usage. 

That leaves me to elaborate a bit more about the integrity and usability. 

The structured records get transferred into the records management environment as XML files.  Each transfer batch is a self contained group, consisting of a number of XML files that contain the data and a summary XML file that contains a detailed description of what the data files contain.  To be able to use the data and the summary file in future, each of them is described by a XML schema definition.   All of these files together form a single package and the records management rules are applied at the package level, meaning that the same security and retention rules apply to all files of a single transfer. The integrity of the individual files can be proved at any stage based on hash comparison technology between the summary and the data files.

Usability means that the structured data is not lost once it resides in the records management environment. Text indexing can be used to provide searching across the contents of the XML files to find batches that include data pertinent to a particular circumstance, e.g. all batches that contain customer number XYZ or order number 123.  This is the kind of full text searching that people use across all machine readable formats as part of early searches in the e-discovery or freedom of information processes. However, structured records should also be available to other methods of searching, e.g. for reporting engines. Having the data in XML format with a full schema description allows us to use our Record Query Server to create an ODBC data source pointing to the XML files, which can then be used by a whole variety of SQL query tools - this is a distinct advantage that you get from storing structured records as XML data, rather than as flat text file or PDF formatted report output.  If the original application still exists, and its algorithms are desirable in the analysis of the data, the records management system provides a re-load function to send the XML based data back to the original source database schema.

In all our design of HP TRIM functionality we pay attention to the characteristics of records as prescribed by ISO 15489: authenticity, reliability, integrity and usability, and as you can see,  structured records management is no exception.  By adhering to this principle we are able to create a truly unified records management environment, encompassing all formats of information, physical, electronic, unstructured and structured, meaning that you can apply a single set of consistent records management policies across all your enterprise content.


Email Management?

By Noel Rath

AIIM (Association for Information and Image Management) has produced an excellent report from their survey on "Email Management - the Good, the Bad, and the Ugly" (© AIIM 2009, -- available at

Here are some of the key findings.

  • On average, our respondents spend more than an hour and a half per day processing their emails, with one in five spending three or more hours of their day.

  • “Sheer overload” is reported as the biggest problem with email as a business tool, followed closely by “Finding and recovering past emails” and “Keeping track of actions”.

  • Email archiving, legal discovery, findability and storage volumes are the biggest current concerns within organizations, with security and spam now considered less of a concern by our respondents.

  • Over half of respondents are “not confident” or only “slightly confident” that emails related to documenting commitments and obligations made by staff are recorded, complete, and retrievable.

  • Only 10% of organizations have completed an enterprise-wide email management initiative, with 20% currently rolling out a project. Even in larger organizations, 17% have no plans to, although the remaining 29% are planning to start sometime in the next 2 years.

  • Some 45% of organizations (including the largest ones) do not have a policy on Outlook “Archive settings” so most users will likely create .pst archive files on local drives.

  • Only 19% of those surveyed capture important emails to a dedicated email management system or to a general purpose ECM system. 18% print emails and file as paper, and a worrying 45% file in nonshared personal Outlook folders.

  • A third of organizations have no policy to deal with legal discovery, 40% would likely have to search back-up tapes, and 23% feel they would have gaps from deleted emails. Only 16% have retention policies that would justify deleted emails.



E-Discovery Survey Results - Barriers, Priorities and Requirements

By Claudia Currie

We recently hosted an online survey in the US to identify the key challenges organizations are facing regarding their e-discovery strategy. Over 50% of the respondents were from organizations with over 2,000 people, 35% of them were Director and VP level and 25% at C-level roles.

The survey highlights are below, and you can view the full results analysis here.

I hope you find it interesting to see what your peers are focusing on regarding their e-discovery strategy and that it will provide valuable insight into the challenges they are facing in relation to information management, and how they plan to address these issues.

Key Findings:

  1. Decisions regarding e-discovery strategy are predominantly made by the general counsel, while decisions relating to e-discovery technology are usually handled by the CIO.

  2. The greatest concerns regarding e-discovery are risk (of not having an appropriate strategy in place), lack of infrastructure and the potential cost of facing a request for e-discovery.

  3. The primary obstacles to establishing an e-discovery strategy are insufficient understanding of e-discovery requirements and lack of funding.

  4. The main types of information organizations are looking to address with an e-discovery solution are e-mails, office documents and data held in databases.

  5. Around 50 percent of organizations are familiar with the Electronic Discovery Reference Model (EDRM), the industry accepted model for e-discovery best practices.

  6. Most organizations expect an e-discovery solution to comprise a mix of services and technology.

Following this first e-discovery survey we are now conducting a new survey on e-discovery best practices and their outcomes. If you would like to participate in this survey please click here.


Labels: E-Discovery

What is Electronic Records Management?

By Claudia Currie

AIIM – the Association for Information and Image Management - is the leading non-profit organization focused on helping users to understand the challenges associated with managing documents, content, records, and business processes. They recently released a presentation which provides you with an overview of Electronic Records Management (ERM). The slides are from the AIIM ERM Certificate Program covering technologies and global best practices for managing electronic records.

Click here to download it.

California Set to Enact E-Discovery Law

By Patrick Eitenbichler

Joshua M. Briones and Anahit Tagvoryan published a valuable e-discovery alert on the DLA Piper site.  The article compares and contrasts the proposed California Electronic Discovery Act which will likely be signed into law this year to the Federal Rules of Civil Procedure.

 Take a look...

Labels: E-Discovery

Task Force Finds Electronic Discovery Process in Need of “Serious Overhaul”

By Dean Gonsowski, Clearwell Systems, Inc. 

sixmilliondollarmanfinalThe American College of Trial Lawyers Task Force on Discovery (”Task Force”) recently came out with their final report based on their survey of the Fellows of the American College of Trial Lawyers (”ACTL”).  The project was conceived as an “outgrowth of increasing concerns that problems in the civil justice system, especially those relating to discovery, have resulted in unacceptable delays and prohibitive expense.”  After releasing an interim report, the Task Force issued its final say on the topic, which honed in on three major themes borne out by the Survey:

1. Although the civil justice system is not broken, it is in serious need of repair. In many jurisdictions, today’s system takes too long and costs too much. Some deserving cases are not brought because the cost of pursuing them fails a rational cost-benefit test while some other cases of questionable merit and smaller cases are settled rather than tried because it costs too much to litigate them.

2. The existing rules structure does not always lead to early identification of the contested issues to be litigated, which often leads to a lack of focus in discovery. As a result, discovery can cost far too much and can become an end in itself. As one respondent noted: “The discovery rules in particular are impractical in that they promote full discovery as a value above almost everything else.” Electronic discovery, in particular, needs a serious overhaul.

3. Judges should have a more active role at the beginning of a case in designing the scope of discovery and the direction and timing of the case all the way to trial. Where abuses occur, judges are perceived not to enforce the rules effectively. According to one Fellow, “Judges need to actively manage each case from the outset to contain costs; nothing else will work.”

In short, the Survey revealed widely-held opinions that there are serious problems in the civil justice system and that the discovery process, though not broken, is “badly in need of attention.”  While not cited specifically, a recent case highlights many of the Survey’s observations.  In Fannie Mae Sec. Litig., 552 F.3d 814 (D.C. Cir. 2009) the Office of Federal Housing Enterprise Oversight (OFHEO) responded to a third party subpoena and in the process incurred $6M in electronic discovery expenses.  While this case had a number of procedural nuances that fortunately make its holding fairly limited to the facts, this electonic discovery fiasco certainly is a poster child for a discovery process that is bursting at the seams.

The $6M problem started for the OFHEO when the individual defendants became skeptical of a limited production and obtained a Rule 30(b)(6) deposition, which confirmed that OFHEO had failed to search all of its off-site disaster-recovery backup tapes.  This inquiry led the OFHEO to enter into a stipulated order to avoid further contempt hearings.  As part of the stipulated order, the individual defendants submitted over 400 search terms, which covered over 600,000 documents.  Overwhelmed with the burden of conducting such a search and the need to hire 50 contract attorneys, the OFHEO objected that the list of search terms was “tantamount to a request for the dictionary,” since it resulted in a “retrieval of approximately 80 percent of the office’s emails.”  Unfortunately, the court ultimately held that the OFHEO needed to comply with the terms of the stipulated order even though the cost was a staggering “9 percent of the agency’s entire annual budget.” To add insult to injury, and despite their efforts, the OFHEO was found in contempt and sanctioned for not meeting the agreed upon discovery deadlines.

This $6M example brings us back to the Survey and the findings of the Task Force.  They proposed a set of Principles (modeling and citing the Sedona Working Group) that would “shape solutions to the problems they have identified.”  Several relating to e-discovery stand out…

  • Promptly after litigation is commenced, the parties should discuss the preservation of electronic documents and attempt to reach agreement about preservation. The parties should discuss the manner in which electronic documents are stored and preserved. If the parties cannot agree, the court should make an order governing electronic discovery as soon as possible. That order should specify which electronic information should be preserved and should address the scope of allowable proportional electronic discovery and the allocation of its cost among the parties.
  • Electronic discovery should be limited by proportionality, taking into account the nature and scope of the case, relevance, importance to the court’s adjudication, expense and burdens.
  • The obligation to preserve electronically-stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation; however, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.
  • Absent a showing of need and relevance, a party should not be required to restore deleted or residual electronically-stored information, including backup tapes.
  • Sanctions should be imposed for failure to make electronic discovery only upon a showing of intent to destroy evidence or recklessness.
  • The cost of preserving, collecting and reviewing electronically-stored material should generally be borne by the party producing it but courts should not hesitate to arrive at a different allocation of expenses in appropriate cases.
  • In order to contain the expense of electronic discovery and to carry out the Principle of Proportionality, judges should have access to, and attorneys practicing civil litigation should be encouraged to attend, technical workshops where they can obtain a full understanding of the complexity of the electronic storage and retrieval of documents.

As Oscar Goldman said about Steve Austin, the legendary $6M man“Gentlemen, we can rebuild him. We have the technology…” The electronic discovery “quagmire” appears to need the same type of radical makeover.  Data is proliferating at a rate far greater than the e-discovery competency of litigators and judges alike.  Tools are out there that can help tackle the proliferation problem, but the need for, and ultimate use of, such tools must be appreciated by counsel on both sides of the “v.”  Until notions of proportionality and cooperation start becoming common parlance for both litigators and judges we will unfortunately continue to see more $6M examples like Fannie Mae.

SourceOne customer speaks, but HP IAP customers boast

An EMC customer has spoken about the new SourceOne suite, saying:

  • EMC’s solution is not the cheapest.

  • They wonder if they’ve over-bought.

  • They’d like to see EMC add support for end-user access to the archive through mailboxes.
HP customers speak louder: Here’s what HP IAP customers are saying about HP’s comprehensive solution:Brunel University: “What we have is effectively the best 'find' button on the internet!  Beyond just efficiency, the solution has helped Brunel further enhance its reputation for corporate integrity, and you simply can't put a price on that.”Coscon: “The software and hardware integrated solution delivered by HP has not only mitigated the risks we faced, but also helped us to realise real-time mail data management in an effective manner within a short period of time.”Dubai International Financial Centre: “With the HP IAP we have peace of mind knowing that we can be in full compliance with legal and financial regulations.  It has made it far easier for us to retrieve any email we need— we can now do it in minutes.”


Government Launches Bold New Recovery Effort

By Kurt Leafstrand, Clearwell Systems, Inc. 


While we don’t normally report news on the blog, this article seemed important enough to repost in its entirety…


WASHINGTON — Senior Administration officials today took the wraps off of their latest effort to stabilize the American economy: The nationalization of the electronic discovery industry. According to a senior official who declined to be identified, “Even before the beginning of the current turmoil, everyone acknowledged that electronic discovery costs were out of control. Now, with litigation accelerating and corporate earnings plummeting, something had to be done. Without this action, a significant number of leading American corporations would be in danger of shutting their doors due to the overwhelming burden of e-discovery.”

A Single Common Portal

Effective immediately, all electronic discovery projects are being centralized under a single authority, the National Electronic Record Discovery Institute (NERDI). The Institute will be launching a nationwide electronic discovery portal on April 1, 2009 at (see demo). The site will build upon the recent success of the government’s economic recovery accountability site, Said one Institute official, “Just drop the ‘r’ and insert a ‘dis’, and you get eDiscovery. It really is the next logical step in the government’s efforts to help the country in a time of profound need.”

Industry experts initially expressed skepticism about the government’s ability to make electronically discoverable information available in an efficient, expedient, and secure manner. Early plans had the government using the U.S. Postal Service and the network of I.R.S. tax return servicing centers as the logistical backbone for managing the collection and processing of documents. However, after negotiations with the National Security Agency, this step was eliminated from the process. Instead, all electronically-generated information in the United States will be instantly processed and made available through the site. Commented an NSA spokesman, “We have all the information anyway; why not make it easily accessible, instead of pretending it’s not here?” As for security, officials stated that “individuals can expect the same level of security and identify protection they’ve come to expect from their financial institutions and credit card companies, along with the additional protection and responsiveness they’ve come to expect from the Federal government.”

The Future of the E-Discovery Industry

What will become of the existing electronic discovery industry, made up of hundreds of individual vendors with aggregate revenue estimated to be in the $2-3 billion dollar range? According to a senior-level NERDI director, “One word: toast.” However, a group of industry software vendors and service providers has expressed open skepticism about the ability of a historically incompetent, multilayered bureaucracy to deliver electronic discovery services more effectively than the competitive market.

One vendor pointed out that it will be “difficult for the government to establish itself as a credible player in electronic discovery with millions of White House emails still missing without a trace.” In response, the group of vendors that make up the Top 5 Software and Service Provider lists on the 2008 Socha-Gelbmann survey (Autonomy, Clearwell, Fios, FTI, Guidance, Kroll, and LexisNexis) have announced an immediate consolidation of operations under the name ClearGuideAutoKrolLexFTios. Gloated new incoming CEO Rick Wagoner, “Our expectation is to roll over the government’s efforts like our new name rolls off your tongue.”


Compliance concerns resulting from cross-border litigation

By Patrick Eitenbichler

On April 7th, the Sarbanes-Oxley Compliance Journal published a great article written by Brandon Cook, Senior Product Marketing Manager at Clearwell Systems.

Brandon describes how the increasing number of business transactions across borders leads to more litigation, government inquirires, and compliance audits spanning international boundaries.  Using a number of real-life examples, he shows the implications and then provides recommendations on how to get prepared for cross-border e-discovery.

Take a read:  "Why Cross-Border Litigation is a Compliance Concern"


Structured Records Management - from data to record

In my last post I started on the subject of Structured Records Management, an area of records management that is re-gaining a lot of relevance because ALL electronically stored information is discoverable in e-Discovery and FOIA, not just unstructured documents. 

In this and some subsequent posts I would like to introduce some of the concepts involved in structured records management. To start with, let's have a look at the steps involved to turn data in structured applications into records managed according to corporate policy:

1. Definition - this step allows us to identify and model the records in the source system

2. Classification - this step allows us to model some descriptive metadata around the records to apply our records management context

3. Extraction - this step allows us to extract records from the source system, based on the modeling done previously

4. Ingestion - this step brings the structured records under the control of the corporate records management environment

5. Management - this step allows us to access, retrieve, query, verify, the structured data under the control of the records management environment

6. Dispose - this step allows us to manage the retention and legal holds of structured data under the control of the records management environment

As I mentioned before, in HP IM we have created a solution that covers all the steps listed above, using our Database Archiving and TRIM products.  It is a truly exciting project to be working on! Throughout the process I was amazed how well the two products complement each other. I will let you know more about some of the details for each step in follow-up posts...

EMC's new services: Not new to HP customers

The EMC announcement of the SourceOne suite includes new consulting services to help customers develop information policies which align with business goals and regulatory requirements.

 HP already provides customers with regulatory compliance services, such as compliance and e-discovery workshops, information discovery and classification, business value analysis and requirements development, compliance and data policy assessment, and information policy definition.  Furthermore, the May 2008 acquisition of EDS enables HP to deliver a broad portfolio of information technology, applications and business process outsourcing services to clients in manufacturing, financial services, healthcare, communications, energy, transportation, retail industries, and government. In fact, HP recently increased its Information Management Services headcount by 10X, to further meet the needs of its customers.


EMC announcement: More like "PromiseOne"

On April 2, 2009 EMC finally announced the long-awaited replacement of EmailXtender.  No surprise.  Actually, it looks like they tried to announce it on April 1 and then pulled all the links—perhaps it was feared it would be seen as an April Fool’s joke.  What isn’t a joke is that this product, called SourceOne Email Management, is actually not a one-source archive solution—yet.  Like its predecessor, it does still archive one overall type of content: messaging.  EMC says that later this year they will release file, XML, and SharePoint archiving.  So, that’s when it will be “one source”?  Not exactly.  Why?  Because the SourceOne product family is not integrated.  Give them twelve to eighteen months—hey, they promised after all.

Bottom line: EMC’s announcement does not compare to the breadth and range of HP’s current offerings, and EMC is more than six months late to market with a product that does not even fulfill what they previously communicated to customers in terms of their key archiving needs.  Furthermore, the release of SourceOne Email Management is a replacement for EmailXtender, and what EMC is delivering with this release is a mere promise of what this product could become in the next year to eighteen months.  In these economic times, we need more than promises to show ROI like what HP IAP customers have been achieving for more than four years:

--Improving staff productivity by up to 80%, and email- and file-based productivity by over 34%

--Lowering email and document processing, review, and production costs by up to 90%

--Reducing time needed to analyze email and documents from weeks to minutes

--Achieving control of their corporate data, improving information governance

Time to Work Together on Electronic Discovery

by Kurt Leafstrand, Clearwell Systems, Inc.

teamwork2Cheesy Successories posters aside (for an alternative take, go here), the need to work together is much more than just a cliché in today’s environment.

In its recent brief on the five major trends that will shape business technology in 2009, leading management consultancy McKinsey and Company noted one trend in particular which highlights the urgent need for an organization’s IT and legal groups to forge better, faster, and more efficient ways of collaborating on electronic discovery issues:

Regulators demand more from IT

Government scrutiny of business will intensify in many developed countries. Already, in the United States, the Office of the Comptroller of the Currency weighs in on the resiliency of banking systems, the Food and Drug Administration (FDA) requires that many pharmaceutical systems be “validated,” and Sarbanes-Oxley drives decisions about accounting systems in every industry. In the future, policy makers and regulators will probably demand that IT systems capture more and better data in order to gain greater insight into and control over how banks manage risk, pharma companies manage drugs, and industrial companies affect the environment. Government officials also will monitor many legal and business rules more closely to ensure compliance with mandates. Successful CIOs should enhance their relationships with internal legal and corporate-affairs teams and be prepared to engage productively with regulators. They will need to seek solutions that meet government mandates at manageable cost and with minimal disruption.

- McKinsey Quarterly, February 2009

The current economic environment is creating a “Double Whammy” within almost every enterprise that has ongoing or pending electronic discovery issues (and are there many organizations left out there that don’t?):

  • As the McKinsey article notes, regulators will increasingly be demanding more from IT as government scrutiny of business intensifies. Just look at the just-launched site to see the level of transparency and accountability that the government is aiming for with regard to the stimulus package. The bailout will not directly affect every business, but there is a new sheriff in town who will likely set the tone across the entire business landscape.

  • At the same time, there is relentless pressure on controlling costs. When times are tough, dollars that can be saved on the expense side are much more valuable that top-line revenue, since 100% of every dollar of cost savings goes directly to the bottom line.

The net-net: Enterprises will be forced to do more, with less.

How? With regard to electronic discovery, there is a lot of low-hanging fruit to be picked in the area of IT and legal cooperation:

  • In-house legal teams should meet with IT (if they aren’t already) to help them better understand the nature of electronic discovery, particularly as it applies to the more “upstream” parts of the process (specifically, identification, preservation, and collection) which IT tends to be more responsible for. Through a better understanding of the nature of electronic discovery, IT can improve its ability find the right documents, avoiding over-collection and reducing downstream processing costs. In addition, new electronic discovery technologies are making it increasingly easy for legal to own more of the process, reducing the electronic discovery burden on IT.

  • Conversely, IT should coordinate with in-house legal teams to provide advice and mentoring as legal seeks to bring e-discovery platforms in-house to assist with early case assessment, search, culling, and analysis. To many legal teams, bringing e-discovery in-house may seem like a daunting proposition, but enterprise software has been around for a long time, and learning from IT’s experiences can make the process far less intimidating.

Yes, regulators are going to be far more demanding in the future than they have been in the past. But some simple collaboration and coordination between IT and legal will go a long way toward lightening the regulatory burden, especially as it pertains to electronic discovery.


End of paper chase: Federal Court unveils e-discovery rules

By Patrick Eitenbichler

On March 2nd, Karen Dearne at Australian IT  published an article highlighting changes in the Australian legal system with new e-discovery rules requiring all electronic documents and emails to be produced and exchanged electronically as opposed to paper.

Issued by Chief Justice Black after 19 months of consultation, the e-discovery rules aim to improve efficiencies and help contain costs at a time when protracted litigation between corporate players and inquiries into financial misconduct have placed extreme pressure on court resources.

Take a read of the whole article -- where lawyer and computer forensics expert Seamus Byrne shares his views of the new rules.


Labels: E-Discovery

Concept Search Versus Keyword Search in Electronic Discovery

By Will Uppington, Clearwell Systems, Inc.

bear-fight-webIn my last post, I started a discussion on the myths surrounding concept search.  The first myth I dispelled was the “concept search is concept search” myth.  The myth is that there is an agreed upon definition of concept search.  In actuality, when people in e-discovery use the term concept search, they don’t always mean the same thing.  Frequently they are not actually talking about concept search technology at all and are actually talking about concept or content categorization technology, which is very different.  The second myth that needs dispelling is that concept search is better than keyword search.

The thinking behind this myth goes something like this:

Keyword search has a lot of problems.  It is prone to being over-inclusive, i.e., finding some non-relevant documents, and under-inclusive, i.e., not finding some relevant documents.  Concept search technologies are new and interesting and using these technologies you can find documents that keyword search can’t find.  Therefore, concept search must be better than keyword search.

Let’s examine this thinking.  The first two statements are accurate.  Keyword search is not perfect and can produce over- and under-inclusive results.  And concept search and content categorization technologies can both help identify documents that keyword search technologies might not find.  However, the conclusion that concept search is better than keyword search is not valid and doesn’t follow from these two statements.  Why?

In order to answer this question, we first need to go back to the difference between concept search and content categorization. Because these are different technologies, we really need to separately compare concept search versus keyword search and content categorization versus keyword search.  Let’s start with content categorization and keyword search.

The issue with this comparison is that keyword search and content categorization do different things.  Keyword search can be used in many ways in e-discovery.  The two most common are: (1) analysis or case assessment: finding the hot documents and understanding the matter by determining who knew what, when, how and why, etc., and (2) culling: removing non-responsive documents and/or identifying potentially privileged documents in order to reduce a large, starting set of documents to a smaller set before review.

Content categorization, on the other hand, has historically been used within the review phase of e-discovery.  Categorization can help reviewers to better understand the documents they are reviewing and thus potentially increase the speed of review.  Practitioners with whom I have worked also find that categorization can be useful during analysis by helping to understand a matter and identify potentially important keywords.

However, content categorization has not been used as part of culling.  First, culling needs to be transparent.  You need to be able to get agreement with or at least explain to the opposing side and the court exactly how you have culled the data set.  If you cull based on categories of documents that have been generated by a proprietary, black-box algorithm, it’s going to be difficult to gain agreement on or explain your culling methodology.  This is why the typical method of culling is still to use keyword search and either agree on the set of search terms with the opposing side or to use e-discovery search best practices to perform keyword searches on your own.

Second, content categorization has its own issues when it comes to being over- and under-inclusive.  There is no guarantee that your group of documents that have been categorized as being related to, for example, a company’s hiring policies include all of the documents in your matter related to hiring policies or that they do not include some documents that may not really be related to hiring policies.  Content categorization, like keyword search and virtually every information retrieval technology, is not perfect.

So what about concept search technology?  Surely, concept search technology is better than old, boring keyword search.  Well, actually it’s not that clear-cut.  The problem with concept search technology is that while it might find more relevant documents than plain keyword search, it will also likely find more false positives.  Imagine searching for documents containing “terminate” in an employment matter and your concept search technology automatically searching for “fire”, “dismiss”, etc. as well.  You’ll find more documents related to the termination of employees, but you’ll also find a lot more non-relevant documents concerning house fires, the fire department, etc.

So concept search can help address the under-inclusive problem with keyword search, (though it won’t solve it) and can be helpful during analysis.  But it can often increase the over-inclusive problem.  In addition, today’s concept search technologies share the transparency problem with concept categorization.  These technologies have largely been designed as “black boxes”, which as I have discussed in the past, makes sense for Enterprise search but not for e-discovery search, and, as a result, could also be potentially difficult to explain and defend.   For these reasons, concept search technology isn’t used very much in e-discovery today.  In order for its use to become widespread, it will need to become more transparent.  But that’s a topic for another day.

The bottom line here is that despite all the hype, concept search and content categorization technologies do not solve all the challenges of e-discovery search.  Both of these technologies can be very useful and the technology behind them is always improving.  However, as most of the experienced practitioners I work with already know, these technologies are generally better thought of as supplements to keyword search, not replacements.  The important question is not whether to use one technology over the other but which technology is best suited to your objectives and how best to use all the available technologies to achieve the desired goal.



Remember the past, prepared to learn

By Noel Rath 

 “Those who cannot remember the past are condemned to repeat it.” said George Santayana, poet and philosopher, in his book Life of Reason in 1906. His advice has been there for generations to take note of, and we evolved as a species and progress as a society because we remember past successes, learn from mistakes and continually progress.

Information is the DNA of an organization. For a business to access and learn from this knowledge base requires systemic processes and procedures embedded in the business. So as technology evolves why have many businesses collected their past without thought about the efficient use of their corporate DNA? The systems and processes have been around for a long time to ensure efficient management of corporate knowledge. Records management provides these systems.

Instead, many organizations have documents and records poorly managed in disparate archives, file systems, warehouses and filing cabinets with limited control. Accessing this corporate DNA becomes problematic, inefficient and ineffective without records management policies and systems in place. It is therefore not surprising that some organizations are spending vast amounts of money trawling their data stores in an attempt to meet their legal obligations when required to produce evidence of all business activity associated with a legal dispute.

It’s not too late!  Protect your corporate memory, improve staff productivity and weather the storm, be it the global economic crisis or litigation. Invest in document and records management policies, procedures and systems and the investment will be returned very quickly!


Generation E

By Adam Feher

As I continually interact with legal firms and individuals who are impacted by e-discovery, I hear more and more that there is a generation gap -- or perhaps even a mindset gap.  This gap exists between attorneys who are fighting the integration of electronic discovery into their skill set and those who are grabbing the wheel and going full speed ahead.  When you hear comments from leading e-discovery practitioners that “paper is the decided minority in most discovery cases – 95% is not paper”, it is hard to believe that there still exists such an unwillingness to accept the obvious.

Control, or lack thereof, is in a nutshell what the push back is all about.  Electronic data cannot be fully controlled for a variety of reasons.  Just look at wild fire content spreading technologies like YouTube, Box, and Skype – it is hard to imagine a future point in time where it is feasible to wrap your arms around all of the possibilities and outlets electronic media can take.  In addition to so many possible mediums, our common day to day lives increasingly involve working with electronically stored information (ESI) in one fashion or another.  This combination makes the dilemma enormous when you begin to think of the amount of data any decent size organization needs to get in front of, or what specific ESI can potentially be relevant during a legal matter. 

Working in the information technology space for a fair amount of time, the e-discovery problem, while offering many unique business opportunities, is definitely a trend which I would consider overwhelming the legal industry.  I have no doubt that for attorney’s contained within the fold of this generational gap, who enjoy the comfort of paper documents they can hold, e-discovery must seem like climbing Mt. Everest with no equipment.

It is interesting to ponder these issues in conjunction with attempting to understand why there are still a large percentage of legal firms who are not preparing themselves to handle e-discovery.  As I wrote in a previous blog, it is my opinion that precedence such as Zubulake Duty will start to force parties, one way or another, to begin to accept the fact that this major paradigm shift known as e-discovery is no longer a choice, but a standard obligation of comprehensive representation.  As this trend continues to build and electronic media begins to further incorporate itself into the legal world, the Information Management group within HP Software will be there to educate and guide customers to handle this enigma appropriately.


Labels: E-Discovery

How to Find a Legal in a Haystack...

By Patrick Eitenbichler

I know...  we usually look for the "needle" in the haystack, not the "legal".  But if you ever had put relevant emails and files on legal hold, you know how hard it is to pinpoint the right documents, and what enabling technology is needed to ensure that no one can tamper with "the evidence".

HP just launched a new website that contains a number of helpful analyst videos and white papers to help you...  

  • optimize the Legal Hold process

  • control the cost of e-discovery 

  • set repeatable business processes following the Electronic Discovery Reference Model

  • avoid common e-discovery pitfalls

  • and ensure an effective partnership between Legal and IT teams to classify and preserve information so that it is discoverable – fast.  

Non-HP site, AccelaCast- Legal Holds Webcast

The white paper is focused on helping you prepare for e-discovery and provides practical tips and steps for bridging the gap between Legal and IT to form a united front in managing the e-discovery process.    

Download a free White paper

So take a look -- and start now to take a proactive approach to managing your risks and controlling your costs.


Labels: E-Discovery

Preventing E-Discovery Headaches

By Patrick Eitenbichler

Keith Ecker recently published a great article in California Lawyer Magazine entitled "Preventing E-Discovery Headaches".  The article discussed how new requirements re: early case assessments and the "meet-and-confer" conference creates a need for businesses to develop pro-active e-discovery strategies.

He provides a number of concrete examples re: how various companies had to deal with "the proverbial data dump" instead of handing over a well organized binder of relevant documents to the legal teams.

Take a read!


Labels: E-Discovery

E-Discovery 911: Reducing Enterprise Electronic Discovery Costs in a Recession

by Will Uppington, Clearwell Systems, Inc.

accountIn today’s economy, controlling electronic discovery costs has taken on a new urgency.  Because the financials of many companies have deteriorated so quickly, there is great interest in finding methods to reduce any costs in the short-term.  As  a result, anyone in a company’s IT or legal department that comes up with a plan to substantially reduce their company’s electronic discovery costs in the short-term is likely to become a hero in their company.  So, what’s the best way to reduce electronic discovery costs quickly?

A natural first step is to decide where to focus.  Which electronic discovery activities are the most costly today?  Which have the greatest room for cost reductions?  The EDRM model serves as a good guide for answering such questions by breaking electronic discovery activities into Information Management, Identification, Collection, Preservation, Processing, Analysis, Review, Production and Presentation.  One thing I have noticed when interacting with enterprises is that the IT and legal departments tend to focus on different stages within electronic discovery based on their perspective.  IT managers naturally concentrate on the information management, identification, collection and preservation activities because these are the activities in which they are most involved.  Similarly, legal managers naturally look to preservation, processing, production and review.

Given these different perspectives, it’s important to take an objective approach to calculating electronic discovery costs.  Doing so is not that easy.  Costs can vary significantly depending on each company, the nature of the case, nature of the data, which vendors/technologies that are used and a variety of other factors.  Costs also come in many different forms: direct hard dollar costs, such as spending on legal and electronic discovery fees delivered by third parties; indirect hard dollar costs, such as time spent by company employees; and soft dollar costs, such as increased risk that could lead to adverse judgments and sanctions.  Finally, electronic discovery costs are often buried across both legal operating budgets and IT budgets making it hard to separate these costs from the costs of other activities.

Undertaking an internal analysis to understand your company’s electronic discovery costs is a valuable activity if you want to better control these costs.  However, while costs do vary between companies, most companies will find that the same activities contribute the most direct hard dollar costs and that these are the costs that are easiest to control in the short-term.  To demonstrate this, let’s walk through a generic cost analysis of a typical case.  Fortunately, we don’t have to start from scratch in doing this.  Leonard Deutchman, an author of several excellent electronic discovery articles, has already done most of the work in a May 2007 article, “Get Ready for the Rules Changes, Part VIII“.  In this article, Mr. Deutchman walks the reader through a hypothetical litigation between an Investor and a Venture Capital firm.  He describes the typical electronic discovery activities and calculates the direct hard dollar costs for these activities including:

  • Collection: Mr. Deutchman calculates that it costs $10k to collect 400GB from 8 hard drives and the data of 8 custodians on file and email servers using an outside vendor (doing it in-house can be less expensive).  Note that this excludes any collection from back-up tapes, which can be more costly.
  • Culling & Processing: it costs $4k to reduce the 400GB to 90GB by removing non-relevant file types prior to processing.  Processing 90GB costs $90k at $1000/GB.  De-duplication and the application of search terms reduce the data to 25GB.
  • Production: it costs $4k to produce the 4GB of data that is deemed responsive and not privileged to produce to the other side.

Mr. Deutchman doesn’t identify direct hard dollar costs for Information Management, Identification or Preservation.  These activities are typically not associated with direct hard dollar costs on a per matter basis.  Rather, they involve indirect hard dollar costs such as employee time and software licenses.  Mr. Deutchman also does not provide an estimate for the costs of review.  However, since review does contribute significant direct hard dollar costs for every matter, this gap needs to be filled in order to get a complete sense of the direct hard dollar costs.  The two big buckets of cost in review are: attorney review costs and review software costs.  In Mr. Deutchman’s hypothetical litigation one might imagine the following scenario for these costs:

  • 25GB translates into 195,000 documents using the low end of the documents per GB email (9,000/GB) and documents per GB files (7,000/GB). Industry survey data that is available from EDRM.  This example assumes that 40% of the 25 GBs is email.
  • The attorneys reviewing the data charge $75/hour and make 100 document decisions per hour.  This translates to approximately $146,000.
  • The hosted review service costs $50/GB/month and, in this case, let’s assume we host it for 6 paid months.  This costs $7,500.

If we tabulate these costs and calculate the direct hard dollar cost shares for each stage, the clear take-away is that Processing and Review costs comprise the vast majority of direct hard dollar costs.  Collection and Production direct hard dollar costs are significantly smaller in comparison.

EDRM Stage

Hard Dollar Costs ($k)

















Total for Processing & Review



Now, it’s possible to come up with many arguments for why Mr. Deutchman or my estimates could be high including different assumptions for attorney hourly review costs, higher document decision rates, cheaper vendor pricing, etc.  Similarly, it’s possible to come up with many arguments for why the estimates could be low including the need to perform multiple review passes, slower document decision rates, more expensive vendor charges, etc.  In addition, each company will have their own unique circumstances that will change this picture.  However, this generic analysis strongly suggests that more customized analyses would come to the same conclusion: if you want to reduce electronic discovery costs quickly, then you need to focus on processing and review costs.  One can also imagine that even if you were to use some form of activity-based costing to allocate indirect hard dollar costs on a per matter basis, it would likely not change the importance of Processing and Review costs.

What does this mean for IT and legal managers in Corporations?  These kinds of analyses make it pretty clear that, even though they are more involved in the Information Management, Identification, and Collection phase of electronic discovery, IT managers need to focus more on helping the legal team optimize Processing and Review activities.  You are not going to get the biggest bang for your buck in the short-term by trying to reduce costs in Information Management, Identification, Preservation, and Collection.  Similarly, legal managers need to work more closely with IT in order to focus on how to reduce processing and review costs.

So, the obvious question coming out of such an analysis is what’s the best way to reduce Processing and Review costs?  We’ll discuss this issue in a future post.

In the meantime, tell me what you think by participating in our first e-discovery 2.0 poll.  See the sidebar here: Which Phase of Electronic Discovery Do You Think is the Most Costly?


Labels: E-Discovery

As the e-Discovery World Turns

By Adam Feher

The following content are words directly from Judge Shira A. Scheindlin during a very well known e-Discovery case, Zubulake v. UBS, 229 F.R.D. 422 (S.D.N.Y. 2004) (Zubulake V):

“Counsel must become fully familiar with her client’s document retention policies, as well as the client’s data retention architecture.  This will invariably involve speaking with information technology personnel, who can explain system-wide backup procedures in the actual (as opposed to theoretical) implementation of the firm’s recycling policy.  It will also involve communicating with the “key players” in the litigation, in order to understand how they stored information.”

This principle, that all attorneys who litigate have an affirmative duty to understand their clients’ computer systems sufficiently to know where all of the potential electronic evidence is stored, is now referred to as Zubulake Duty, due to the case tried by Judge Scheindlin mentioned above.

Suffice to say, the ramifications of Zubulake Duty are now adding an additional complex dimension to a field already mired in complexity.  The following are just a few examples of these ramifications:

  • Many lawyers are simply not ready or do not have the technical teams necessary to adhere to Zubulake Duty

  • An additional cost burden that directly correlates to the level of capability described in the previous bullet

  • The line of reasonable efforts, where lawyers are able to show they have done enough to adgere to the Zubulake Duty principle in order to avoid any liability

Of course, only time will enable the wrinkles of Zubulake Duty to be ironed out.  What does not need any smoothing, however, is the fact that Zubulake Duty is an extremely significant event in the e-Discovery world.  Further on that note, it is my opinion that Zubulake Duty essentially hardwires a marriage between Legal and Information Technology that has been in counseling for some time, hence my soap opera related title!  This point, through no fault of parties either on the Legal or IT side, is mainly due to the history of the Legal field dealing mostly with paper documents and the very different languages and terminologies used by each. 

Similar to not confronting a bully until one is forced – Zubulake Duty, will more than likely increase tensions between Legal and Information Technology sponsors in the short term.  However, there is a chance it may synergistically push both parties through this tension faster in order to solve the more fundamental problems associated with the exponential growth of Electronically Stored Information (ESI) and how to deal with it.  This is what I believe is the rationale behind Zubulake Duty, and if accurate, historically could mark the end of the beginning phase of e-Discovery.


Labels: E-Discovery

The Ten Commandments of E-Discovery


By Seamus E. Byrne, Australian Lawyer and Computer Forensics Expert

Originally published on February 7, 2009

Australian courts have been dealing with electronic documents, and e-discovery, for over a decade.
Seamus Byrne highlights 10 facts about e-discovery in Australia that you should know, derived from actual decisions that have helped shape our e-discovery landscape.


Edited by Bill Dawes, Image and Data Manager ("IDM") is the only magazine in the Asia-Pacific region which covers knowledge and information management technologies. This article appears in the January-February 2009 issue.


"Litigation is not a game, or a point scoring exercise. It is the means by which our society allows disputes to be resolved authoritatively and impartially by judges and juries applying the law to the facts that each party brings forward as relevant to their dispute."
- Justice Rares in
Intel Corporation v Unwired Group Ltd (2008).


Litigation through the courts is the most public method of dispute resolution. In recent times, it has also been widely criticised, even by judges, as "too complex, slow and expensive". Discovery is a pre-trial litigation process, and continuing obligation, to identify and disclose relevant documents for inspection and production.

The concept of electronic discovery ("e-discovery") is interpreted with two distinct meanings:
(a) Traditional E-Discovery – The management of discoverable paper documents by conversion to electronic form; and
(b) Modern E-Discovery – The management of discoverable electronic documents in electronic form.

There is a widespread perception that the Australian legal system has lagged behind the embrace of technological advances in email, messaging and electronic document management by Australian business and government organisations. Due to this perception, strong interest has surrounded the release of recently revised practice notes dealing with e-discovery. This has been a specific focus for the two courts that hear the majority of Australia’s commercial litigation, the Supreme Court of New South Wales and the Federal Court of Australia.

However, practice notes merely serve as a guide to supplement existing procedure, or to concisely espouse principles originating from earlier decisions. From the 10 cases I have highlighted for this article, we can derive some important facts about the evolving e-discovery landscape in Australia.

1. You will be penalised for failure to comply with a Search Protocol.

Case: Australian Securities and Investments Commission v Macdonald (2008)
The ongoing James Hardie litigation involves a significant volume of discoverable documents. Similar to the Sony Music litigation (see below), independent computer experts were appointed to facilitate a search protocol. The terms of the search protocol were agreed between all parties, including the Australian Securities and Investments Commission ("ASIC").

However at trial, ASIC sought to tender a number of previously undiscovered documents obtained from a forensic image of a company director’s notebook computer hard drive. Due to a clear failure to comply with the search protocol, ASIC was subsequently unable to tender the documents and rely upon them as evidence. This event highlights the critical need for lawyers, their clients and independent computer experts, to fully understand, and comply with any agreed protocols, at all times.

2. Proactively use a Document Management Protocol to prevent unnecessary conflict.

Case: Jarra Creek Central Packing Shed v Amcor (2006)
The ongoing Amcor and Visy class action arose from an earlier Australian Competition and Consumer Commission ("ACCC") investigation and litigation into cartel conduct in the packaging industry. It is significant to note that the ACCC litigation, which at the time, had commenced some months earlier, raised identical issues of fact and law.

In the ACCC litigation, of which Amcor and Visy were involved, a document management protocol ("DMP") had already been agreed upon, and discovery was "well-advanced". Jarra Creek, as representative for the class action, applied for the discoverable documents to be produced in a different format to the DMP in the ACCC litigation.

A DMP is also traditionally referred to as a "document protocol". A DMP essentially specifies the form in which discoverable documents, and associated metadata fields, are to be produced for discovery.

For example, a DMP involving the production of e-mails will typically include:
(a) the production format (e.g. native, electronic form and/or electronic image format, e.g. text-searchable TIFF or PDF);
(b) the metadata fields (e.g. To, From, CC, Subject, Date Sent) to be extracted from the e-mail and the method that such metadata will be populated into an electronic list or database of documents;
(c) the method of numbering discoverable e-mails;
(d) the method of preserving the relationship between an e-mail and any attachments;
(e) the method of identifying and/or removing duplicate e-mails; and
(f) the metadata to be populated into an electronic list or database of documents to identify an e-mail as privileged or otherwise confidential.

Unfortunately for Jarra Creek, their application to use a new DMP was dismissed in the interests of avoiding "unnecessary discovery" at the time. Notwithstanding, this case highlights the need to proactively agree upon a DMP, with all other parties. Ensure that you fully understand the protocol, and its implications. Further, be prepared to offer to pay the costs to other parties if you require anything above or beyond the DMP to ensure that your lawyers can efficiently review discoverable documents.

3. Reasonable searches must be reasonable.

Case: Galati v Potato Marketing Corporation of Western Australia (2007)
A number of common law jurisdictions have introduced the concept of a "reasonable search". A reasonable search is not a search of all documents within your possession, custody or control, but rather one which takes into consideration:
(a) the nature and complexity of the proceedings;
(b) the number of documents involved;
(c) the ease and cost of retrieving a document;
(d) the significance of any document likely to be found; and
(e) any other relevant matter.

Both parties gave discovery. However, the Potato Marketing Corporation had identified a number of categories of documents which it had not searched. Galati applied to the Court to seek that the Potato Marketing Corporation be ordered to give further discovery of documents in the initially excluded categories.

The CEO of the Potato Marketing Corporation advised that the party had not undertaken a search due to the burden arguably imposed by searching approximately 100,000 documents. Further, the CEO advised that he believed a search for those documents would be "very onerous, time consuming and expensive".

Due to the apparent admission that no reasonable search had been performed, and that the categories of documents likely to be discovered were of significance, the Court ordered further discovery by the Potato Marketing Corporation. This case highlights that a "reasonable search" varies upon circumstances and that an organisation is best positioned to proactively seek external expertise if they consider discovery to be burdensome.

4. Be prepared to explain and justify your reasonable search, thoroughly!

Case: Slick v Westpac Banking Corporation (2006)
The majority of cases settle out of court. Often not before significant time and cost is spent on discovery. This was such a case involving an American investor, an A$18M failed investment and a wholly owned subsidiary of Westpac, Quadrant.

Both parties gave discovery. However, during the relevant time, Quadrant only discovered a very small number of e-mails and no electronic calendar entries. Quadrant had upgraded their technology infrastructure, including e-mail server, during the relevant time.

Unfortunately, Quadrant's CFO, as representative, was unable to explain their searches and clarify the impact of the migration on their electronic documents, specifically whether any documents could have been potentially deleted or no longer reasonably accessible as part of the process.

By coincidence or otherwise, the case settled the day after further discovery was produced.

5. Manage your expectations in light of the "proportionality" of your request.

Case: Leighton Contractors v Public Transport Authority of Western Australia (2007)
This case involved a significant claim between a construction company and a government agency in relation to progress payments for a railway extension project, subject to the adjusted cost of various materials during the relevant time.

Leighton Contractors argued that the Public Transport Authority should give discovery of deleted e-mails. However, the Public Transport Authority had already undertaken significant discovery in relation to electronic documents. Further, the Court held that it was ultimately unlikely that any discovered deleted e-mails would support the real issue of the case.

This case reaffirmed the NT Power principle that the burden of discovery must be proportional to the potential value of the electronic documents sought. Further, that time, cost and inconvenience are to be considered in the context of the litigation and financial resources available to the party.

The Court also confirmed that the burden and obligation of discovery is greater for a large organisation due to the volume of electronic documents they manage. While discovery for a large corporation may be onerous, proportionality should ensure that it is not oppressive.

6. Be very wary of the unintended consequences of inadvertent disclosure.

Case: GT Corporation v Amare Safety (2007)
Privilege is the fundamental pillar of the law that serves to protect certain communications from public disclosure, and their use in evidence. In Australia, privilege is largely restricted to communications between a lawyer and their client within the context of anticipated or actual litigation.

Unfortunately, the independent consultants engaged by Amare, without the knowledge of Amare’s solicitors, failed to remove documents identified as privileged, prior to production of their discoverable documents consisting of over 150,000 electronic documents.

The Court highlighted that the actions of Amare’s consultants gave rise to significant problems due to "inadvertent disclosure" and ultimately ended in GT Corporation being forced to engage new members of their legal team, to replace those who had obtained knowledge from the privileged documents.

This case is a strong reminder to remain diligent when you are involved in a discovery process, particularly if you are dealing with any volume of electronic documents.

7. Electronic documents are discoverable, diligently manage them – or else!

BT (Australasia) v State of New South Wales & Telstra (1998)
BT responded to the New South Wales' "whole of government" request for tender ("RFT") to provide a telecommunications network. Following the RFT, an agreement between BT and the NSW Government was reached in 1992. Telstra became involved as the agreement relied upon a specific Telstra service, which was subsequently discontinued and replaced with a new service, to which BT’s access was restricted. BT commenced litigation in 1995 claiming Telstra had breached the Trade Practices Act.

Following Telstra’s initial discovery efforts in early 1998, BT claimed that Telstra failed to comply with their discovery obligations in relation to electronic documents. More damning, that Telstra had failed to take appropriate steps to prevent destruction of discoverable documents.

During the relevant time, Telstra's information management practices involved the storage of electronic documents from computer, directly to backup tape, primarily for the purpose of disaster recovery. However, at no time did Telstra adequately disclose this practice, nor the existence of any backup tapes. Further, Telstra continued to destroy potentially relevant electronic documents by recycling backup tapes. Telstra was ordered to undertake a costly exercise to produce discoverable documents within a strict "rolling" schedule.

8. As society embraces technology, the law appreciates its relevance.

Case: NT Power Generation v Power and Water Authority (1999)
This case is notable for providing a reflection on the shift in the information management practices of electronic documents, including e-mail.

The Court refused to limit discovery of electronic documents to those that had been converted to paper. The Power and Water Authority subsequently interviewed employees as to their information management practices. During the relevant time, it was revealed e-mails were generally archived to a hard-copy file.

The Court considered the employees' evidence. However, the Court again refused the application on the basis that such a limitation was not in the interests of a fair trial and that the likelihood of identifying relevant electronic documents, in their electronic form, was not disproportionate to the burden (i.e. time, cost and inconvenience of restoring and reviewing the contents of backup tapes).

This guiding principle has continued to evolve and ensure that the discovery of electronic documents is proportionate to the circumstances. See: Leighton Contractors.

9. Document destruction is part of every document retention policy; just remember your legal obligations.

Case: British American Tobacco Australia Services v McCabe (2002)
This high profile tobacco litigation led to the inclusion of specific civil and criminal penalties for document destruction in Victoria.

However, the case has also been widely referenced throughout Australia and other common law jurisdictions, for affirming the principle that a party may only destroy a document before litigation commences, if such destruction is not an attempt to pervert the course of justice or in contempt of court.

In order to mitigate the risk of poorly defending such claims, many organisations have implemented enterprise content management ("ECM") systems that include a "legal hold" feature. "Legal hold" facilitates the ability to proactively identify, and subsequently preserve, potentially discoverable documents, pending an order for discovery.

10. Be aware of the importance of Search Protocols and a well-documented technology infrastructure.

Case: Sony Music Entertainment (Australia) v University of Tasmania (2003)
An investigation revealed that multiple Australian universities were hosting Web sites that made available a number of popular copyrighted sound recordings. Copyright owners sought orders for preliminary discovery to confirm their investigation findings, with a view to better identifying the apparent parties involved.

Independent computer experts were appointed, and subject to confidentiality obligations, were instructed to inspect computers and other electronic storage mediums controlled by the University of Tasmania and perform searches to identify potentially relevant documents, under a search protocol designed to maintain any claim of privilege prior to the discoverable documents being produced.

In addition, unlike Telstra in the BT Australasia litigation, the University proactively disclosed its routine procedures in relation to archival and backup. Consequently, pending a request from the copyright owners, the University was able to maintain its operational routine.

Labels: E-Discovery

What e-discovery & A-Rod have in common...

By Patrick Eitenbichler

I know many of us are already tired of hearing and reading about Alex Rodriguez' use of performance-enhancing drugs.

However -- most of the articles don't highlight the parallels between "data retention" of drug testing results & any other company information.  In short, the baseball players’ union kept the results of A-Rod's drug tests longer than required, which in turn became evidence against him (see E-Discovery Knuckleball).

By approaching information management and data retention reactively, because you're too busy to implement a sound information governance strategy, you will expose your company to...

  • failure to comply with government regulations

  • costly fire drills and getting caught off guard in litigation

  • keeping certain data/information too long -- increasing costs as well as risks

  • keeping other data/information too short -- and being unable to find it when required

In other words, take a timeout!  Set up a meeting between the legal, compliance and IT teams in your company to map out what's needed to develop a PROACTIVE data retention and e-discovery strategy.  In almost every single case, your plans and investments will pay off in less than 12 months.

And if you don't know where to start -- call HP...  we have a an Information Management specialist in your area who can sit down with you, run a workshop, and figure out what steps to take to reduce both costs and business risks.


Labels: E-Discovery
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  • This account is for guest bloggers. The blog post will identify the blogger.
  • For years I've been doing video and music production back and forth between Boston MA and New Orleans LA. Starting in 2010, I've began working with Vertica (now HP Vertica) in the marketing team, doing customer testimonials, product release videos, and website management. I'm fascinated by Big Data and the amazing things my badass team at HP Vertica has done and continues to do in the industry every day.
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