The eMag Link Monthly Articles

March Edition

Moving from Reactive Stance to Proactive Litigation Preparedness: New Federal Rules Necessitate Shift in Philosophy
Pre-culling, non-native restoration dramatically reduce e-disclosure costs*

Moving from Reactive Stance to Proactive Litigation Preparedness: New Federal Rules Necessitate Shift in Philosophy

There has been much discussion about the recently updated Federal Rules of Civil Procedure and what the practical implications will be for corporations, law firms, and clients facing litigation. While many elements of the new Federal Rules remain murky and await judicial clarification, this much is clear: the playing field has changed and the timetable for litigation has been dramatically reduced. All organizations involved in the collection and analysis of data are going to have to re-think how they approach and prepare for potential litigation.

Litigation, by nature, has been a traditionally reactive matter. Errors are found, problems develop, and law suits arise. Corporations and law firms have historically addressed litigation as an isolated incident in the existence of a business organization, rather than as a repeatable process to be managed with standardized protocols and procedures. The relatively lenient timelines for litigation supported this philosophy, since it would often be 6-8 months or more into litigation before discovery was initiated. Organizations always had time to sift through the massive amounts of data they had accumulated, lacking urgency in compiling or collecting relevant data. To be certain, the evolution of electronic discovery over the past decade has made the process less overwhelming and more manageable; however, most organizations lack a cohesive structure for their volumes of data/information, and the discovery process has been likened to finding the proverbial needle in a haystack.

The recent changes to the FRCP have dramatically shortened the time frame for litigation discovery, with the first meeting with opposing counsel (aka the Meet & Confer Session) now taking place within 99 days of a case being filed. In practical terms, where litigants once had 6-8 months before discovery even started, now discovery must be well underway within 3 months. Needless to say, many within the legal industry are scrambling to find more effective ways to gather and disseminate client information in order to begin preparing litigation strategies earlier.

What is needed is a fundamental shift in the philosophy of business practice and litigation. Business organizations need to be proactive in cataloging and archiving their information assets, thus making access quicker and more cost-effective when litigation does arise. Instead of spending all their efforts to develop airtight operational guidelines, organizations need to acknowledge that litigation is a business reality, and takes steps to build litigation preparedness. Litigation preparedness can represent anything from:

Developing systems for organization and storage of data to facilitate ease of retrieval
Solidifying media retention policies that serve as a roadmap for organizational data, limiting exposure and ensuring ease of access when litigation arises
Enforcement of media retention and destruction policies to avoid organizational exposure
Document management system policy
E-Mail archiving
Recognition of areas of vulnerability within the business and concomitant strategies to proactively minimize liability through quality control
Refinement of internal processes to ensure consistency of operations
Defining key personnel who will be involved as litigation/regulatory response Team members
Understanding the nature of litigation so that as new lawsuits arise, the cumulative experience of each case serves as a repository of knowledge and experience

Proactive litigation preparedness not only makes business organizations more efficient, but also serves to save time and money by ensuring that organizations are better equipped to handle the challenges when they arise. The new Federal Rules were designed with an eye towards leveling the playing field between parties in litigation; however, prescient organizations can gain a practical advantage during the legal process by simply committing to take control of their data from the outset. In short, a shift from reactive mindset to proactive readiness is manifested by an early commitment to organization of data and recognition that litigation preparedness is a necessity in the current business environment.

These steps help business organizations to anticipate and thwart many legal challenges, reduce cost, and meet the new shorter timetable for litigation under the Federal Rules of Civil Procedure that took effect on December 1, 2006.

Please contact us today to learn more about proactive litigation preparedness.

Pre-culling, non-native restoration dramatically reduce e-disclosure costs*

When embarking upon the e-disclosure process, many corporations, organisations and law firms are overwhelmed by the volume of data that needs to be examined – not to mention the costs associated with restoring and processing relevant files.

The plentiful supply of inexpensive electronic storage options available today, coupled with increasing regulatory compliance demands, has prompted companies to archive any file, document or correspondence they feel may be valuable at some point in the future. As a result, companies retain tremendous amounts of information, saved on hard drives or back-up media tape. This presents a significant challenge when these firms are subsequently required to produce responsive documents during litigation or regulatory compliance activities. The larger the data pool, the longer it takes to uncover and prepare relevant documents – and the higher the price tag associated with the process.

Advanced technologies are available, however, to reduce the time and costs inherent to e-disclosure activities:

Pre-culling strategies allow corporate officers and counsel to view data structures and files in their raw native format, allowing exclusion of non-relevant information prior to expensive restoration and processing.
Non-native data restoration allows firms to restore data without having to re-create the originating or "native" environment – that is, the combination of hardware and software used at the time the materials were preserved.

Backup tapes: Incontrovertible evidentiary sources

The vast majority of organisations rely upon back-up tape to archive files, records and documents. Besides being cost effective, tape also offers the advantage of being highly portable and can therefore be readily transported for off-site storage.

Tape is also well regarded as a rich evidentiary source, because it is effectively tamper-proof. While the tape can be damaged or destroyed, it is virtually impossible for an individual to extract a specific file or record from the tape, make changes and reinsert the altered document. Its value in this regard was confirmed in October 2005 when Part 31 of the Civil Procedure Rules was modified. The revision changed the definition of “document” to include specific reference to tape as an evidentiary source in e-disclosure.

While few argue the integrity of back-up tape, attorneys and corporate officers alike contend that the costs inherent in restoring data contained on tape are prohibitive, however. They argue that it is often extraordinarily expensive to restore and process years of tape in its native format, in the hopes of uncovering discreet documents that may or may not have an impact on current litigation or regulatory compliance activities. In this regard, they maintain, documents stored on tape can hardly be considered reasonably accessible.

Pre-culling reduces data pool

These arguments are an accurate assessment when conventional means are employed to restore data from tapes. Traditionally, organisations would be forced to engage in an expensive series of activities to prepare data for electronic disclosure. These most likely would entail restoration of all tapes contained in the data pool, as well as subsequent processing activities (e.g., de-duplication, culling, keyword searches and data filtering). Each of these steps requires an investment of time and resources, often adding thousands of pounds in cost.

Conversely, pre-culling circumvents many of these steps by providing users a means to view data structures and files in their raw native format prior to expensive restoration and processing. Pre-culling techniques render the data sortable and searchable by a variety of fields, including subject matter, keywords, content, context, custodian, metadata and others. Parties to the e-disclosure process are subsequently able to view the data from numerous perspectives, making early determinations about the relevance of the data, and thereby saving time and cost by excluding extraneous documents.

Pre-culling typically follows a progression of steps:

Header scans, which reveal all available information in the back-up header (e.g., back-up dates, back-up software type, internal volume identifiers). This process allows the user to enter a window of time from which responsive material must be produced – a period of 18 months prior to the merger between two corporations, for instance.
Server scans, which isolate back-up clients or servers that contain responsive data of particular interest. During an intellectual property (IP) case, for instance, this process can identify servers germane to the matter and allow counsel to exclude irrelevant file systems – like unrelated human resource (HR) network shares.
File-level catalogs, which isolate file names, document creation and modification dates, file or directory pathways, and other information contained on the tape. This allows the user to extract only those documents created or handled by individuals affiliated with the litigation or regulatory investigation. Further, these catalogs pinpoint the specific back-up tapes that contain these relevant files.

By employing any combination of these techniques, specific tapes that contain files of interest are isolated – thereby significantly reducing the volume of data that needs further processing.

Non-native techniques remove restoration barriers

Once these relevant tapes have been segregated, parties to the e-disclosure process must then retrieve the archived information for review. This can present a tremendous challenge if those attempting to restore the original files try to recreate the native environment – that is, the precise combination of hardware and software – in which the documents were saved.

Native restoration attempts are frequently stymied:

In many instances – particularly with older archives – the operating systems and applications used to store information are unknown. In addition, the employees who created the files or maintained the system may no longer be with the company in question and so can provide no assistance.
Often the programs used to originate or archive the documents are obsolete. Software is rewritten and updated at an extraordinary rate, and current versions may not support older files. Likewise, support from the manufacturer may no longer be available, rendering the systems needed to run the programs unattainable.
Personnel who may be familiar with the contents of stored or back-up media may no longer be employed by the enterprise – and therefore can provide no insight regarding which files are important and which are not.

Non-native restoration, however, negates the need to utilise original hardware and software when restoring data stored on tape. Best-of-class technology vendors have developed functionality to “decode” the intricacies of various drives, operating systems and software applications. Equipped with tools and resources developed through years of electronic data disclosure projects, vendors like eMag Solutions are able to quickly and cost effectively access data even when no prior knowledge about the host hardware, content, application or format is available.

In other words, the use of non-native restoration applications enable the retrieval of data that would have been considered inaccessible – either because of technology limitations or the cost of restoration – in the recent past.

Conclusion

With growing emphasis on the value of tape as a reliable evidentiary source, counsel and corporate officers will routinely be expected to produce documents contained in these archives during e-disclosure. While technological barriers, time-consuming processes and unreasonable expense may have interfered with a firm’s ability to comply in the past, advances in the field have minimised these impediments. Progressive e-disclosure vendors are able to mitigate the most significant obstructions by 1) reducing the volume data that needs to be restored by utilising efficient pre-culling activities, and 2) streamlining the process of restoring relevant documents by employing non-native techniques that eliminate the need to reproduce the hardware/software combinations used to originally create the file.

*This article was authored by Ian Bartlett, a Solutions Analyst with eMag Solutions and appears in the February isse of Computers & Law (http://www.scl.org).

This article may be re-published as long as the following resource box is included at the end of the article and as long as you link to the email address and the URL mentioned in the resource box:

Article by eMag Solutions. For more articles on eDiscovery and Data Restoration, subscribe to our e-mail Newsletter by sending a blank email to newsletter@emaglink.com or by going to http://www.emaglink.com.

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