Why is eDiscovery a Mystery to Attorneys? Pt. 2

Why is eDiscovery a Mystery to Attorneys? Pt. 2

Back in March of 2015, we wrote about why eDiscovery, one of the legal profession’s most powerful tools, is also among the most poorly understood by attorneys.

Almost a year later, not much has changed. Here’s part 2 of why eDiscovery is still a mystery to attorneys.

It’s critical for organizations to easily access documents, emails, and even text messages. If those forms of information are deleted without being properly preserved, they could be lost forever. This poses an issue when a company must provide these records to aid regulatory compliance, a legal case or an employee dispute.Why is eDiscovery a Mystery to Attorneys?

There have been countless examples of how an archiving system has affected a company, both negatively and positively. Easily accessing archived documents, emails and messages takes the guesswork out of certain situations and will ultimately protect your company if used correctly. Greg Arnette, founder and CTO of Sonian, a pioneer in cloud-powered archiving, has identified nine situations in which having records accessible, or not having records accessible, has largely affected companies and employees.

Lack of Understanding that ESI (electronically stored information) is More Than Any Other Office Document

YouTube videos, Facebook and Twitter posts have been used as evidence. Voice mail, calendar and journal entries, and instant messages also fit the bill. As Kentucky attorneys Michael Losavio and Jennifer Hans points out, ESI can be stored just about anywhere – including such places as hard drives, RAM, cell phones, PDAs, flash or thumb drives, and even MP3 players.

Fear or Inadequate Knowledge of ESI (Remember ESI can make or break your case)

It’s a lesson California-based outdoor furniture supplier Creative Pipe had to learn the hard way. After the company allowed opposing counsel to use an untested keyword search tool that unearthed 165 documents of privileged data during the discovery process, the court determined Creative Pipe had waived privilege on those documents because it had not taken care to protect them. Creative Pipe’s opponent could use any of those documents as evidence against Creative Pipe.

Non Pro-Activeness to Approach ESI in the Right Manner

The best approach to ESI is a proactive approach. Attorneys must understand that ESI will avoid errors like those made by Creative Pipe and others who have been in the news the past few years, it is not wise to put ESI archiving/eDiscovery policies on the back burner. Figure out where all of your ESI is, and how or whether it can be quickly accessed, then address how any new ESI that comes into the system will be managed. Waiting until you have an actual eDiscovery request or regulatory audit notice in hand before deciding what to do is just seeking for trouble.

Lack of Best Practice

Best practice is crucial. Developing best practices is the key to navigating the complexities of global eDiscovery matters.

Lack of Procuring Right Technology and Tools

The right technology can make all the difference. Like any software or service, eDiscovery solutions come in a variety of shapes and sizes. Whether it’s an appliance, a hosted solution, or a custom, site-specific implementation, you must shop around to find the one that best which meets our needs.

Neither IT nor Legal Should Tackle eDiscovery alone.

Neither IT nor legal should tackle eDiscovery alone. That’s why it’s important to teach the departments of Attorneys how to work together to accomplish eDiscovery goals. Some companies are looking to a new breed of IT professional, who reports up through the general counsel’s office to lead the efforts. Others take a team approach, with representatives from each group providing input at the planning and implementation stages.

This post was contributed by Jai Santosh, HR Team Lead.

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How Can Less Tech-Savvy Hospitals Move Forward with EHR?

How Can Less Tech-Savvy Hospitals Move Forward with EHR?

In urban areas, it’s typical and even expected that larger healthcare organizations and hospitals are already using the latest medical breakthroughs and technological advances, including making (or having already made) the transition to electronic health records (EHR). Yet, rural practices are often stuck years behind their big city counterparts in a number of ways, and EHR adoption is no exception. How can smaller medical practices and hospitals catch up, let alone move forward?

Pipeline Problems

There are a lot of things people living in larger metropolitan areas take for granted, like 24-hour grocery stores or extensive public transportation. Smaller communities are faced with a number of unique challenges related to their relatively remote, isolated locations.

This dynamic is reflected in the healthcare industry as well. When it comes to making tech upgrades, the problems an urban hospital faces are most often related to issues like figuring out the best way to transform a large volume of paper records into digital format, or how to rearrange the budget to pay for the transition. In rural areas, though, complications occur at a much more fundamental level.

The question that smaller practices face isn’t necessarily how to schedule the time or the best way reprioritize the budget, but may instead be as basic as how can they find a technician or vendor to perform the service at all. Facilities that only have a couple dozen beds to begin with may have trouble even getting the latest medical equipment, and definitely don’t have access to the expert guidance they need to install and implement the hardware and software that’s necessary to build and maintain effective electronic records management.

Lack of funding in general is another serious issue facing rural practices. On average, the nation’s 2000 or so rural hospitals already run at an eight percent loss, so the question of finding the necessary investment to adopt EHR—often in the range of about a million dollars—can feel impossible. Yet, these changes need to be on track in order to comply with the mandatory 2015 deadline, so an answer has to be found.

Joining Forces

The solution adopted by increasing number of smaller practices involves a trade-off: giving up their independence in exchange for being absorbed into a larger nearby healthcare organization. Rural hospitals can align or merge with the nearest large metropolitan area hospital system and receive the benefits of more generous financial backing, along with superior access to the necessary technical support. Often, the urban facilities are already using EHR, so making the upgrade is a fairly streamlined—and less financially strapped—process. While some small hospitals remain stubbornly independent and are determined to find funding somehow on their own, others are benefiting in a big way from creatively joining forces with other healthcare providers.

Image via freedigitalphotos.net/2nix

Are Security Concerns Holding Back eHealth?

Are Security Concerns Holding Back eHealth?

Despite the ever-growing integration of technology into the average person’s daily life, there’s still one frontier that many remain resistant to when it comes to going virtual: health care. According to a recent Ponemon Institute study called “Risk & Rewards of Online & Mobile Health Services: Consumer Attitudes Explored,” many consumers still feel uncomfortable about sharing information about their health online. Are these concerns holding back the potential for a more fully developed approach toward electronic health records and other eHealthcare possibilities?

What Holds Consumers Back

The study, sponsored by Experian Data Breach Resolution, looked at the way consumers use online health services and portals as compared to other online services that involve potentially sensitive data as well, such as online banking or making purchases from smartphones.

The study included nearly a thousand participants, many of whom described themselves as regular Internet and mobile app users. Yet, 52% of respondents said that they do not currently use eHealth services, for three main reasons:

  • Mistrust that their online health information would not be fully removed upon request
  • Questions over the respect for privacy—for example, whether users would be tracked online
  • Whether complete online anonymity could be assured

Add to this the common public perception that online healthcare services or portals are not as secure as they should be, and it’s easy to see the challenges facing eHealth industries today.

What Does the Future of eHealth Hold?

With such clear reluctance from the general population, even those who are otherwise fairly tech-savvy, what future developments can be expected in the field of eHealth services? First, it’s important to recognize that there are many benefits to electronically-stored healthcare information as well as many other health-related applications.

  • Microsoft’s HealthVault lets families organize their healthcare records, and share that data with physicians or other agencies (such as children’s schools for their records). HealthVault also integrates with many popular health-related fitness apps.
  • An app called MedTracker gives patients reminders about when to take medications, but this capability is available in electronic pillboxes as well.
  • Other online-based tools, platforms and apps are already in use for nearly every aspect of healthcare, from medical billing to electronic health records and other resources.

Despite hesitance from consumers, healthcare systems are definitely making the shift toward digitally-managed healthcare, both as a solution for improving patient care and safety, and as a cost-saving measure. In fact, the Affordable Care Act was in part written to encourage and promote these technologies in order to lower health care costs overall.

The prime takeaway here is the persistent impression consumers have that their health-related data is less secure to access online than their bank accounts or credit card transactions. In order for this perception to be changed, consumers must feel reassured that the systems and products they’re using are securely encrypted; securing healthcare information is vital for encouraging the widespread adoption of eHealth services in the future.

20 Myths About eDiscovery

20 Myths About eDiscovery

eDiscoveryDespite the prevalence of digital information in our daily lives, the legal community continues struggling under a number of myths surrounding electronic discovery (eDiscovery). Instead of allowing long-standing misconceptions to inform legal action, here’s a closer look at the facts behind them.

1. You don’t need to think about eDiscovery unless you’re involved in litigation.

A well-planned, well-executed information governance (IG) plan is essential for any enterprise, and the sooner this occurs before potential litigation, the better.

2. eDiscovery is overly complicated.

In knowledgeable hands, eDiscovery efforts aren’t necessarily any more complex than traditional discovery.

3. Only big cases benefit from eDiscovery.

Since very few cases are conducted that don’t involve at least some type of electronically stored information (ESI), cases of any size may require eDiscovery.

4. EDiscovery costs a fortune.

By keeping data in digital format, all parties will see significant savings in the long-term as a result of the elimination of significant hard copy expenses such as printing, scanning, shipping, storing, coding and Bates numbering.

5. Traditional discovery provides more than enough evidence to win a case.

With the majority of business communication occurring digitally (for example, via email), traditional discovery alone is becoming insufficient for modern litigation.

6. All law firms know the most successful eDiscovery strategies.

Like any learned skill, there are all different levels of expertise when it comes to eDiscovery. For the best results, choose an experienced litigation support team that specializes in eDiscovery.

7. No one really uses eDiscovery yet.

Even as recently as a few years ago, this myth might have been true. However, as with any new technological advancement, adoption has been rapid and widespread.

8. The more data, the better.

Courts only want to hear about relevant data. Broad collections of ESI are frowned upon as unnecessary expenditures of time and billable hours.

9. Deleted ESI is gone for good.

Unless ESI is deleted by someone who’s extremely tech-savvy, a computer forensics specialist can retrieve nearly any type of deleted or corrupted data.

10. Existing IT staff already know how to collect and document ESI.

eDiscovery involves both technical skill and legal knowledge, so expertise in both areas is essential for the best eDiscovery strategy.

11. EDiscovery is cost-prohibitive for smaller law firms.

Today’s pricing models are making eDiscovery more affordable than ever, making tools accessible to firms of all sizes.

12. To stay on the safe side, companies should keep all data whenever possible.

Every gigabyte of irrelevant data counts toward total eDiscovery expenditures. Instead of saving everything, organizations should develop a more streamlined IG policy.

13. Predictive coding is too faulty to work properly.

Predictive coding in its current form is extremely helpful for early case assessment. Although it’s not a perfect system, it’s far more efficient than manual assessment.

14. The other side isn’t going to want to deal with eDiscovery.

More and more often, both parties in any given case will need to produce some level of eDiscovery during litigation.

15. eDiscovery only applies to ESI like computer files.

eDiscovery applies to all ESI, including social media profiles, personal email, text messages and any other ESI that may have relevant case info.

16. Metadata isn’t that important.

Metadata tags are useful for sorting and organizing large volumes of electronic data.

17. Keyword searches are more cost-effective than concept searches.

As technology becomes more intuitive, concept searches may soon be far more efficient than looking for a single keyword or phrase.

18. All ESI is important.

Not all data is created equal, and most has a definitive shelf life since information is often only relevant to the specific task at hand.

19. eDiscovery will end up replacing humans.

Although eDiscovery can tremendously improve the discovery process as a whole, humans are still essential for interpretation and clarification.

20. Lawyers don’t really need to understand eDiscovery. That’s what IT is for.

Understanding the possibilities of eDiscovery efforts can be a huge contributing factor in determining the winning strategy for your next big case.

Cross-Border Discovery: Can’t We all Just Get Along?

Cross-Border Discovery: Can’t We all Just Get Along?

Cross-Border DiscoveryJust as globalization has significantly increased, so has cross-border discovery. It is not unusual for information requested in U.S. discovery to be found outside the country. Much of this information is electronic – Electronically Stored Information or “ESI” – thus creating additional challenges. The collection, processing and production of ESI can be complicated and costly. And when the ESI is located beyond the borders of the U.S., the issues can get even more involved.

Discovery in other countries is fundamentally different than U.S. discovery. This can create conflict when discovery crosses the U.S. border.

On the one hand, we know that U.S. civil litigation is built on the premise of broad discovery. For instance, Federal Rule of Civil Procedure (FRCP) 26 (upon which many state court rules are based) liberally provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”

On the other hand, a significant example of contrast is Europe. Data privacy law in the European Union (EU) greatly restricts the production of personal information. For instance, Directive 95/46 of the European Parliament and Council on the Protection of the Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data mandates the protection of the “right to privacy with respect to the processing of personal data.” “Personal data” is quite broadly defined to include “any information relating to an identified or identifiable natural person.”

So, how can litigants reconcile such basic conflicting principles? Two recent significant efforts to assist should be noted.

First, earlier this year, the ABA adopted Resolution 103 urging that, “where possible in the context of the proceedings before them, U.S., federal, state, territorial, tribal and local courts consider and respect, as appropriate, the data protection and privacy laws of any applicable foreign sovereign, and the interests of any person who is subject to or benefits from such laws, with regard to data sought in discovery in civil litigation.” The February 2012 report written in connection with the ABA Resolution begins by quoting Benjamin Franklin’s statement that “[c]ommerce among nations should be fair and equitable.” The report concludes by opining that “permitting broad discovery in disregard or even defiance of foreign protective legislation can ultimately impede global commerce, harm the interests of U.S. parties in foreign courts and provoke retaliatory measures.”

Interestingly, the original language of the ABA Resolution was watered down by adding the “where possible in the context of the proceedings” and “as appropriate” language. In at least one federal case, the quoted language was central to the discussion regarding the Resolution.

In Gucci America v. Weixing Li, 2011 WL 6156936 (SDNY August 23, 2011), reconsideration denied 2012 WL 1883352 (SDNY May 18, 2012), Judge Richard J. Sullivan of the Southern District of New York rejected the argument that the ABA Resolution should change his decision to order the Bank of China to disclose its Chinese account records. Judge Sullivan concluded there was not a viable alternative means for the plaintiffs to secure the records. More specifically, the judge disagreed with the Bank that the Hague Convention provided a viable alternative means. Judge Sullivan observed that his decision to order disclosure was consistent with the ABA Resolution’s approach of considering foreign privacy law “where possible” and “appropriate.”

Also earlier this year, as a second major effort , a working group of the well-known Sedona Conference issued six principles entitled “The Sedona Conference International Principles on Discovery, Disclosure and Data Protection.”

Summarized (rather than quoted), these principles are as follows:

Principle 1: Demonstrate due respect for other countries’ data protection laws.

Principle 2: Utilize a standard of good faith and reasonableness to resolve conflicts.

Principle 3: Utilize a standard of relevance and necessity for preservation and discovery.

Principle 4: Utilize stipulations and court orders to minimize conflict.

Principle 5: Demonstrate by a protocol document that preservation and discovery obligations have been addressed.

Principle 6: Retain information only so long as is necessary to satisfy legal and business needs.

The concepts of co-operation and efficiency are re-occurring throughout the six principles. Consistent with this theme, a detailed form of stipulated protective order and a detailed protocol document are appended to the report issued with the principles.

Cross-border discovery will only become more prevalent as time goes on. And the fundamental conflict between liberal U.S. discovery and the much more restrictive approach found elsewhere will continue to create issues for years to come. Adhering to principles of co-operation and efficiency as suggested by the Sedona Conference working group and the ABA can only help to minimize such issues.

A Brief History of Information Governance

A Brief History of Information Governance

Information GovernanceInformation governance (IG) has inarguably become one of the most pressing concerns for any enterprise doing business today. The concept of managing data from inception through its full life cycle and on to responsible deletion or archiving is not necessarily a new one, but the advent of the technology age has certainly been a game-changer. How did the idea of managing electronically-stored information (ESI) take on such massive proportions? Here’s a closer look at the history of IG.

Early Roots in the Healthcare Industry

If there’s any industry that’s particularly concerned with accurate, long-term recordkeeping and documentation, it’s health care. It should come as no surprise, then, that the modern approaches and philosophies toward handling ESI have their roots buried deeply in the world of health care records management.

Whether hard copies of doctors’ notes and charts or digital databases, every healthcare facility needs a strict policy with regards to managing existing records and processing old or outdated ones while retaining the utmost patient confidentiality. In 2003, England’s Department of Health decided that the current data explosion merited a more comprehensive platform of healthcare records management that addressed all phases of the lifecycle consistently and effectively.

This idea was then adopted by the National Health Service, along with an early version of an assessment tool with which to assess performance, along with offering supportive guidance. This toolkit, while having undergone a significant number of facelifts, is currently used by more than 30,000 NHS organizations and their partners, along with an e-learning platform that boasts over 650,000 registered users.

By 2008, the Association of Records Managers and Administrators (now ARMA International) decided to present a more consistent standard for recordkeeping that could apply to any organization, of any size and within any industry. These eight principles, referred to as the Generally Accepted Recordkeeping Principles®, together define the most essential factors that effectual IG must meet:

In 2011, ARMA International collaborated with the Electronic Discovery Reference Model (EDRM) on a white paper that illustrated the importance of connecting The Principles with the Information Governance Reference Model (IGRM) in a complementary fashion that enhanced transparency and enabled more successful IG. This white paper helped better inform IG policies across all different types of enterprise and multiple jurisdictions, allowing for improved enforcement of data and records management.

IG Success in Today’s World

Today, more organizations than ever are making the important shift toward effective IG, addressing not only the management of frequently accessed data but also including such issues as security compliance, access logs and privacy concerns.

IG has become intertwined with electronic discovery as attorneys turn toward ESI to build or disprove cases. These days, the phrase “information governance” is just as likely to refer to how data is controlled with regards to ediscovery as it is to internal data and storage policies. IG guidelines also establish defensibility and chain of custody for critical evidence.

When it comes to momentum, information has always been the secret ingredient that drives business growth. For generations, this information came in the shape of ideas put into physical form; now, the still-vital fuel of intellectual property is virtual rather than physical, requiring a different form of protection.

As we enter the era of Big Data, it’s more essential than ever for organizations to understand the big picture when it comes to IG. Whether looking at the past or the future, it’s clear that IG is here to stay.

Text Message Preservation Issues Causing You a Headache? Take Another Aspirin and Start Thinking about Instant Message Preservation Issues

Text Message Preservation Issues Causing You a Headache? Take Another Aspirin and Start Thinking about Instant Message Preservation Issues

Instant Message Preservation IssuesThe use of instant messaging for business purposes continues to increase. Does your company allow employees to engage in business communications via instant messaging? If so, have the implications been fully considered?

Companies have a duty to preserve ESI (Electronically Stored Information) when litigation is threatened or has already commenced. Courts have held that this duty applies to instant messages just as it does to email and text messages. See, e.g., UPMC v. City of Pittsburgh, Civil Action No. 13-563 (WD PA October 25, 2013).

And courts can certainly sanction parties failing to preserve instant messages. See, e.g., Southeastern Mechanical Services, Inc. v. Brody, 657 F Supp 1293 (MD FLA 2009).

Bottom line, and with apologies to Gertrude Stein, ESI is ESI is ESI.

Thinking Ahead

Another consideration is the tendency of some employees to say things by instant message they wouldn’t say otherwise. They often do not understand that a less-than-appropriate instant message might end up as Exhibit A in some break-the-company lawsuit.

Instant messaging is only getting more prevalent. Rather than reacting after the harm has been done, a wise company will think ahead and mitigate risk by taking measures such as adopting policies covering the issue, careful management, and employee education.

Send any sensitive information via email? Have email encryption? No? Uh-oh!

Not Preserving Text Messages Could Cost You Big Money!

Not Preserving Text Messages Could Cost You Big Money!

Not Preserving Text Messages Could Cost You Big MoneyIf you think text messaging is something you don’t need to worry about in litigation, think again.  Several months ago, the defendants in In Re Pradaxa learned this lesson the hard way.

In this December 2013 case, a federal judge in the Southern District of Illinois ordered the defendants to pay almost $1 million in sanctions for eDiscovery failures, including the failure to preserve text messages. Specifically, the court found that the defendants knew their employees were communicating via text for business purposes, yet did nothing to correct the auto-delete function for text messages when implementing a litigation hold. The court pointed out that the duty to preserve applies to text messages just as it does to email.

 What’s Next?

Pradaxa is something of an extreme example but it does illustrate the point that companies need to be concerned about business text preservation just as they need to be concerned about any other data spoliation.

Next up:  How about instant messaging? When employees use instant messaging for business communications, the same preservation rules apply as if those communications were sent by email or text. The next short blog will discuss this issue.

10 Reasons Why You Must Invest in eDiscovery

10 Reasons Why You Must Invest in eDiscovery

For whatever reason, a number of law firms remain resistant to adopting electronic discovery  (eDiscovery) services (perhaps driven by the fear of high costs). Yet, there’s no denying that the landscape of legal technology has changed rapidly over the past few years, and shows no sign of stopping anytime soon. EDiscovery is not necessarily cost-prohibitive and you don’t need to settle your case because you think you can’t afford the eDiscovery.

eDiscovery

Here are 10 reasons why you shouldn’t let eDiscovery hold you or your case hostage:

1. Your clients have a ton of discoverable information but it’s all in digital format.

As you begin manual discovery and review on a case, perhaps you realize there’s very little physical evidence. That’s because no one bothers to print out emails anymore; instead, you’ll have to access electronically stored information (ESI) directly.

2. You’re involved in a case where opposing counsel already has extensive eDiscovery resources.

Being faced with an opponent who embraces eDiscovery could cost you your case. Electronic discovery allows for a more streamlined, sensible approach to discovery efforts compared to traditional methods. This gives the definitive upper hand to whichever party can maximize its potential.

3. Someone requests something “in native format.”

That seems easy enough… except when the native format in question is from a program that’s six years old and is now defunct. How can you handle files in native format now?

4. You need to figure out if your client has any ESI that’s relevant to the current case.

Not only do you need to verify whether your client has any relevant ESI tucked away, you also need a sensible, time-effective method to scan and categorize all those bits and bytes.

5. Opposing counsel subpoenas your client’s service provider (email host, Facebook, etc.) for discoverable data.

If opposing counsel specifically requests access to ESI, you simply can’t afford to be unprepared yourself. Don’t wait until you’re up against the wall to retain a knowledgeable electronic discovery vendor.

6. There are way too many documents to go through.

In a lawsuit that spans months or years, the volume of discoverable documentation can be immense. Yet, time still needs to be of the essence when it comes to discovery efforts. Electronic discovery can save money and man hours almost exponentially compared to traditional discovery.

7. You have to convert tons of physical documentation into searchable, electronic data.

Electronic discovery vendors have the right equipment and knowledge base to convert large volumes of physical documentation into a far more easily searchable format.

8. You’re tired of telling people you’re not equipped to handle eDiscovery.

As more and more business is conducted digitally, the majority of clients need representation that can provide electronic discovery. It’s time to accept that eDiscovery is becoming status quo.

9. The projected costs of traditional discovery sends your client looking elsewhere for representation.

Traditional discovery methods add up quickly, especially in a big case. While electronic discovery can also be expensive, the costs are much lower comparatively. Adopting new methods now can help you keep your clients’ costs much more manageable.

10. The Court orders you to.

Sound far-fetched? In Multiven, Inc. v. Cisco Sys. (2010), that’s exactly what happened. The Plaintiff insisted on using traditional review and, as a result, was unable to complete discovery by the cutoff date. The Court said discovery was taking “…far too long and a new method for this review and production is needed.” The Defendant was then ordered to engage an eDiscovery vendor and split the total costs with the Plaintiff. In short, even the Court knows that traditional discovery is going the way of the dinosaur.