Post Process

Everything to do with E-discovery & ESI

Archive for September 10th, 2007

Is your vendor using “end of life” products?

Posted by rjbiii on September 10, 2007

One of the essential processes in the discovery process with regards to ESI is the ability to search through large datasets to reduce documents for “eyes-on” review by attorneys. A post by archiving 101 asks if your vendor is using “end of life search products,” and calls out two software vendors doing just that. From the post:

Yes indeed … 2 vendors are actually using end-of-lifed search technology in their software. Altavista Search is in use with Zantaz EAS (now Autonomy) while Symantecs Enterprise Vault does as well. Altavista came into the hands of Fast Search back in 2003 and at that time FAST killed the future development of the product and encouraged its users to move to the FAST technology instead. 4 years later and both vendors still haven’t been able to migrate their products to new search technology which is a great concern. Will they actually be able to rip out the core of their product and replace it with something new? Will it actually work? For current customers this is something to keep a close eye on. No matter what happens .. a complete reindex of their environment will most likely need to take place with all the planning that goes along with this.

Would the tools being used by their EDD vendors be important to counsel? Well, duh. To quote Craig Ball:

With the Mandate to engage experts comes the obligation to select capable ones, or face sanctions and liability.

Craig Ball, EDD Showcase: Worst Case Scenario, LTN (quoting Michael Arkfeld). No link available.

The point here is that counsel should be able to describe and defend the manner in which he or she selected a particular vendor.

Posted in Articles, Best Practices, Discovery | Leave a Comment »

Want to crack a password fast?

Posted by rjbiii on September 10, 2007

To all those EDD operators who run up against password protection, and can’t get past it, try Orphcrack.

The multi-platform password cracker Ophcrack is incredibly fast. How fast? It can crack the password “Fgpyyih804423” in 160 seconds. Most people would consider that password fairly secure. The Microsoft password strength checker rates it “strong”. The Geekwisdom password strength meter rates it “mediocre”.

New toys…and new fears. [HT: Slashdot]

Posted in Computer Security, Password Protection | Leave a Comment »

Do you need a Special Counsel, just for electronic discovery?

Posted by rjbiii on September 10, 2007

The Metropolitan Corporate Counsel has an article arguing that you just might. Written by David Cohen, e-discovery counsel for K&L Gates, it states:

Unfortunately, most litigators are ill-equipped to deal with the nuances and technical complexity of e-discovery issues. No e-discovery courses are offered in law school and few litigators have extensive training or experience with regard to computers, information systems, or related fields. Some in-house and outside lawyers try to muddle through with the help of IT personnel. Others delegate the e-discovery issues to associates or paralegals who also lack the necessary expertise. In some instances counsel turn to e-discovery vendors who may lack understanding of the legal nuances or may have financial incentives contrary to client desires to minimize data collection and processing costs. Any of these approaches can lead to costly mistakes, monetary sanctions, or worse.

There is no doubt that discovery in complex cases of litigation will no longer be accomplished as it was in the past. The times, they are a changin’. I think that in complex cases, an attorney who is familiar with “e-discovery practice” might indeed be necessary. I will also add that Preston Gates (before their recent merger) had been paying closer attention to this area than practically anyone else before the term “ESI” had been coined.

Also, Corporate Counsel must be familiar with the law, and the IT infrastructure of their employer, regardless of what the case is. This is a pre-dispute measure, and is something that should be done without regard for any specific case or legal matter. And even many small cases involve electronic discovery and computer forensics issues. This means that, to some degree, all litigators must know the A-B-C’s of their EDD.

Update: Speaking of the importance of E-Discovery to the practice of law, this blurb appears in the Business section of the Worcester (MA) Telegram for Sept. 3:

The Worcester law firm Bowditch & Dewey LLP has hired Steven J. O’Neill of Monson as a partner in its Litigation and Construction Services Practice area. Mr. O’Neill also is heading a new practice area focusing on electronic discovery, document retention/destruction policies and related emerging technology issues. He was previously a member of the Construction and Government Contracts Practice Group in the Hartford office of Thelen Reid Brown Raysman & Steiner LLP. In 2006 he was appointed to the Emerging Technology Law Committee of the Transportation Research Board, a division of the National Research Council. Mr. O’Neill received a bachelor’s degree from the University of New Hampshire and a law degree from the University of Oregon School of Law.

Posted in Articles, Best Practices, Bowditch & Dewey LLP, Discovery, eDiscovery Counsel, K&L Gates | Leave a Comment »

UK Article ponders “How to Survive” Electronic Discovery

Posted by rjbiii on September 10, 2007

Computer Weekly discusses the challenges associated with electronic discovery, and comes up with a list of issues that is familiar to us in this area. George Socha is quoted:

“It’s becoming a normal course of e-discovery to engage in extraordinary action,” said George J. Socha, founder of Socha Consulting LLC, an e-discovery consulting service. “Companies are forced to search each and every device where data could possibly be stored …This has the potential to massively disrupt business and, in some cases, bankrupt companies,” he said.

Socha’s latest report on the market estimates that US revenue from e-discovery tools and services was about $2 billion in 2006, up 51% from 2005. He anticipates the market will grow at approximately 33% from 2006 to 2007, 28% from 2007 to 2008 and 23% from 2008 to 2009. If these growth estimates are realized, the e-discovery market in the U.S. will exceed $4 billion by 2009.

The key for companies and their attorneys is to be prepared before the dispute ever occurs. Many discover this too late, to their own detriment. Click on the “sanctions” category to discover just how sorry disputants can end up being.

Posted in Articles, Data Management, Discovery, George Socha, United Kingdom | Leave a Comment »

Interview with Mark Sidoti (Gibbons, P.C.) on Electronic Discovery Conference

Posted by rjbiii on September 10, 2007

Metropolitan Corporate Counsel has an interview with Gibbons P.C.’s Electronic Discovery Group’s chair, Mark Sidoti. The discussion focuses on his firm’s upcoming conference, the emergence of electronic discovery as a distinct field of practice, and the changes that the information systems have wrought on the practice of law. In discussing changes to FRCP 26(f), Mr. Sidoti says:

Amended Rule 26(f) involves a number of changes, but the principal one is that the parties are now obligated to have a discussion about how they are going to handle their e-discovery issues before they have their initial conference with the court. That entails disclosing the electronic documents that may be relevant to the case, describing how those documents are maintained, identifying the person or people most knowledgeable about them and the company’s IT infrastructure, and designating the format of production for electronic documents and similar issues. Also, the parties must disclose their objections to producing certain types of electronic data, for example, data they might consider “inaccessible” as the new rules and commentary define that term. Because this obligation is still relatively new, and parties continue to struggle with how to effectively conduct these meetings, our conference will include a mock demonstration of such an exchange moderated by Michael Arkfeld, who is a nationally recognized expert and author on e-discovery topics.

These days, one of the first tasks counsel must undertake in any litigation, is an understanding of his or her client’s information systems. Every corporation’s in-house counsel is well advised to have procedures in place to make the learning process as painless as possible.

Posted in Articles, Discovery, FRCP 26(f) | Leave a Comment »

States’ moves to better manage IT due in part to EDD

Posted by rjbiii on September 10, 2007

Computerworld has posted an article concerning States’ (led here by West Virginia) efforts to get their IT infrastructures under control:

West Virginia is part of a wave of states that are embracing data center and server consolidation in their government IT operations. It’s replacing 85 e-mail servers that run a half-dozen different applications with four Exchange-based systems — two for production, and two for backup.

And that’s just for starters. Kyle Schafer, West Virginia’s chief technology officer, wants to extend the consolidation initiative to the state’s financial, procurement and human resources management systems. The savings on hardware alone justify the move, according to Schafer, who said that West Virginia currently replaces as many as 20 e-mail servers annually as part of its regular hardware refresh cycle.

IT managers will be aware of many reasons for making this move, most of which will fall under categories of economics and operational efficiency. However, what might surprise some (though, not us here a Post Process, of course) is that electronic discovery also plays a role:

Another reason why some states are moving to consolidate and better integrate their systems is to comply with new electronic-discovery legislation. For instance, the [state] of Washington is deploying a unified e-mail archiving system from Symantec Corp. and later this year plans to seek bids on tools for searching the archives, said Gary Robinson, the state’s CIO. Robinson led the preparation of an “impact statement” on e-discovery that the NASCIO released last week.

Pre-dispute data management is the answer to reducing post-dispute discovery costs…

Posted in Articles, Data Management, states, West Virginia | Leave a Comment »