Tag Archives: Investigations

Federal Government Agencies Face Information Management Challenges, Too

by Barry Murphy

Many moons ago, one of my first projects as an analyst with Forrester Research was to find the answer to a seemingly simple question: what is the industry standard for storing new types of electronic information such as X-rays and other images?  The client was a government agency that needed to store these records long-term and anticipated potentially needing to produce them in court many years in the future.  fed image 2As such, the agency needed to know how to store and find these records.  The answer proved to be anything but simple – in reality, the answer was that there was no “standard” for storing this new type of content.  My investigation into the topic led me to find this new market called eDiscovery and the rest is history.

The experience was interesting because it was my first foray into working with the Federal government.  I went into the experience with the assumption that Federal agencies would somehow be more advanced in their information management efforts.  Records management, after all, was (and still is) very important in government.  But, government agencies are just like other organizations – struggling to keep up with exploding volumes of digital information, under the gun to respond to information requests (whether it is in response to Congressional inquiries, regulatory requests, or litigation), and dealing with the needs for more modern IT infrastructure elements like Virtual Desktop Infrastructure (VDI).

The only difference between government agencies and other organizations is that agencies may be under even more stringent rules for complying with investigations and for dealing with digital information management.  President Obama’s Managing Government Records directive mandates that agencies manage electronic information as stringently as paper records have traditionally been managed.  Agencies are under even more of a microscope than corporations, yet face the same information management challenges.  Information assets are scattered across email, file systems, disparate SharePoint sites, and Cloud-based repositories.  In addition, some agencies adopt newer IT infrastructure elements such as virtualization and cloud computing to stay relevant.  For example, the Department of Energy deployed a virtual desktop infrastructure (VDI) in order to enable worker mobility (Source: Zurier, Steve. Agencies Deploy VDI with an Eye Toward BYOD. Fed Tech Magazine, March 18, 2013). VDI allows agencies to implement initiatives like BYOD while maintaining top-notch security.

Keeping up with modern IT infrastructure, while simultaneously responding to thousands of information requests each year – whether it is in response to Congressional inquiries, regulatory requests, or litigation – is a challenge.  Before assuming that government agencies have the process under control, consider this: according to Deloitte’s Seventh Annual Benchmarking Study of Electronic Discovery Practices for Government Agencies, only 59% of respondents believed their agencies were effective in deploying eDiscovery capabilities compared to 73% in the previous year (Source: Deloitte’s Seventh Annual Benchmarking Study of Electronic Discovery Practices for Government Agencies, Spring 2013).

Why the drop in confidence?  Part of the reason is that traditional search and eDiscovery products fail to effectively support agencies’ IT environments in a way that creates a true solution.  Rather, traditional products have agencies creating centralized eDiscovery labs that require copying information from various systems to a central eDiscovery location.  This is both time-consuming and expensive.  To learn how to address information management challenges in federal agencies, click here to download a whitepaper that outlines the critical problem, its legal compliance implications, and compelling solutions that help agencies develop built-in search and eDiscovery capabilities that reduce costs and improve operational productivity.

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Plaintiff Claims Physical Injuries Made Worse by Cold Weather, Then Goes Snow Skiing

Earlier this month a New York Appellate court ordered the complete disclosure of a personal injury Plaintiff’s Facebook account.  In Richards v Hertz Corp., 2012 WL 5503841 —N.Y. Supp. 2d—, (NY AD 2d 2012, November 14, 2012) the Plaintiff claimed that her injuries from an automobile accident impaired her ability to participate in sporting activities and caused her to suffer pain that was exacerbated in cold weather. However, in the course of investigating the claim, the Defendant identified publically available images on the Plaintiff’s Facebook page “depicting [plaintiff] on skis in the snow,” (i.e. not only a sporting activity but in cold weather) and subsequently served a discovery demand requesting all her status reports, email, photos, and videos posted on her account since the date of the accident.

The Plaintiff objected to the request and ultimately a court motion was brought to resolve the discovery dispute. Initially, the trial court only directed that the injured plaintiff send defendants a copy of “every photo on Facebook” evidencing the injured plaintiff “participating in a sporting activity.” However, The Defendants appealed the order and the appellate court viewed the trial court’s order as too narrow, finding that defendants demonstrated that the injured Plaintiff’s profile contained an image that was “probative” of the issue as to the extent of her injuries, and finding in turn that “other portions of her Facebook profile may contain further evidence relevant to that issue.”

The appellate court ruled that defendant made “a showing that at least some of the discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on her claim.”

Regular readers of this blog will note that there is nothing new here as we have covered many similar recent cases with this type of fact pattern and outcome. But it is notable that such cases are becoming very routine. Also, it should be very clear by now that any law firm defending or prosecuting personal injury claims – as well as their hired eDiscovery consultants — should be investigating social media sites for sources evidence as a matter of course. As attorney John Browning pointed out earlier on this blog, any attorney who fails to do so may be violating their ethical duty of competence.

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Filed under Case Law, Social Media Investigations