Category Archives: Enterprise eDiscovery

eDiscovery Veteran Craig Carpenter Joins X1 as CEO

Today we have some very exciting news: Craig Carpenter has joined X1 as our new CEO. Craig is a seasoned and experienced executive in the eDiscovery and information governance arena, holding several senior executive positions throughout his impressive career, including CEO, EVP of Sales, CMO, COO, and General Counsel.  Craig was an early executive team member of one of the pioneers of eDiscovery software, Recommind, and a key part of that story from startup to creation of an industry-leading brand.  Craig Carpenter 250 sq

Most recently Craig was CEO of Fronteo, which he joined after running sales at Kroll Ontrack. He now brings his proven, customer-centric approach to X1. What I especially like about Craig is his track record as a thought leader and innovator in the legal technology arena. Here is what another thought leader, UK lawyer and renowned eDiscovery expert Chris Dale said last year on his blog, The eDisclosure Project, about Craig:

“Craig Carpenter was personally responsible for much of Recommind’s success in promoting its expertise at predictive coding. This was a tough sell in those days when it was new, and Craig Carpenter tackled the promotional task with vigour. He was also the first person I heard (at a conference in Hong Kong) predict that analytics had a big future role to play in information governance, something which reached fruition when, a long time later, OpenText added Recommind to its stable with precisely that intention in mind.”

I couldn’t agree more. In fact, Craig will be weighing in on very soon with a blog post of his own on why he came to X1, which will include further insight into what Chris Dale says above, so stay tuned. Craig is a central part of X1’s recent growth and expansion. Our X1 eDiscovery and information governance platform has caught fire, fueled in part by our game-changing alliance with Relativity announced earlier this summer. And LegalTech News weighed in today about Craig, noting that “there are few people more equipped to predict the future of e-discovery.” In his interview with Legaltech News, Carpenter said X1’s position aligns well of with his vision of the e-discovery marketplace, where the goal is to “move the strategy formation phase up to the beginning, as opposed to later in the process.”

Besides being a well-known thought leader in eDiscovery, Craig also has forensic technology experience as he served as Chief Marketing Officer and COO of AccessData. Craig began his career as a practicing attorney. He earned both his Juris Doctor and MBA from Santa Clara University (my law school alma mater) and completed his undergraduate studies at UCLA, where he played quarterback on the Bruins’ Pac-10 championship football team. A team, which I might add, could really use his help this season, but I digress.

And speaking of interesting blog posts, look for even more quality content on this site as Craig will be a featured co-blogger going forward. For now, I am very excited to welcome Craig onboard to take the X1 helm!

Leave a comment

Filed under compliance, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, Uncategorized

Three Key eDiscovery Preservation Lessons from Small v. University Medical Center

Small v. University Medical Center is a recent 123-page decision focused exclusively on issues and challenges related to preservation of electronically stored information in a large enterprise. Its an important ESI preservation case with some very instructive takeaways for organizations and their counsel.  In Small, Plaintiffs brought an employment wage & hour class action against University Medical Center of Southern Nevada (UMC). Such wage & hour employment matters invariably involve intensive eDiscovery, and this case was no exception. When it became evident that UMC was struggling mightily with their ESI preservation and collection obligations, the Nevada District Court appointed a special master, who proved to be tech-savvy with a solid understanding of eDiscovery issues.Case Law

In August 2014, the special master issued a report, finding that UMC’s destruction of relevant information “shock[ed] the conscious.” Among other things, the special master recommended that the court impose a terminating sanction in favor of the class action plaintiffs. The findings of the special master included the following:

  • UMC had no policy for issuing litigation holds, and no such hold was issued for at least the first eight months of this litigation.
  • UMC executives were unaware of their preservation duties, ignoring them altogether, or at best addressing them “in a hallway in passing.”
  • Relevant ESI from laptops, desktops and local drives were not preserved until some 18 months into this litigation.
  • ESI on file servers containing policies and procedures regarding meal breaks and compensation were not preserved.
  • These issues could have been avoided using best practices and if chain-of-custody paperwork had been completed.
  • All of UMC’s multiple ESI vendors repeatedly failed to follow best practices

After several years of considering and reviewing the special master’s detailed report and recommendations, the court finally issued its final discovery order last month. The court concurred with the special master’s findings, holding that UMC and its counsel failed to take reasonable efforts to identify, preserve, collect, and produce relevant information. The court imposed monetary sanctions against UMC, including the attorney fees and costs incurred by opposing counsel. Additionally, the court ordered that should the matter proceed to trial, the jury would be instructed that “the court has found UMC failed to comply with its legal duty to preserve discoverable information… and failed to comply with a number of the court’s orders,” and that “these failures resulted in the loss or destruction of some ESI relevant to the parties’ claims and defenses and responsive to plaintiffs’ discovery requests, and that the jury may consider these findings with all other evidence in the case for whatever value it deems appropriate.” Such adverse inference instructions are invariably highly impactful if not effectively dispositive in a jury trial.

There are three key takeaways from Small:

  1. UMC’s Main Failing was Lacking an Established Process

UMC’s challenges all centered on its complete lack of an existing process to address eDiscovery preservation. UMC and their counsel could not identify the locations of potentially relevant ESI because there was no data map. ESI was not timely preserved because no litigation hold process existed. And when the collection did finally occur under the special master’s order, it was highly reactive and very haphazard because UMC had no enterprise-capable collection capability.

When an organization does not have a systematic and repeatable process in place, the risks and costs associated with eDiscovery increase exponentially. Such a failure also puts outside counsel in a very difficult situation, as reflected by this statement from the Small Court: “One of the most astonishing assertions UMC made in its objection to the special master’s R & R is that UMC did not know what to preserve. UMC and its counsel had a legal duty to figure this out. Collection and preservation of ESI is often an iterative process between the attorney and the client.”

Some commentators have focused on the need to conduct custodian questionnaires, but a good process will obviate or at least reduce your reliance on often unreliable custodians to locate potentially relevant ESI.

  1. UMC Claims of Burden Did Not Help Their Cause

UMC tried arguing that it was too burdensome and costly for them to collect ESI from hundreds of custodians, claiming that it took IT six hours to merely search the email account of a single custodian. Here at X1, I wear a couple of hats, including compliance and eDiscovery counsel. In response to a recent GDPR audit, we searched dozens of our email accounts in seconds. This capability not only dramatically reduces our costs, but also our risk by allowing us to demonstrate diligent compliance.

In the eDiscovery context, the ability to quickly pinpoint potentially responsive data enables corporate counsel to better represent their client. For instance, they are then able to intelligently negotiate keywords and overall preservation scope with opposing counsel, instead of flying blind. Also, with their eDiscovery house in order, they can focus on more strategic priorities in the case, including pressing the adversary on their discovery compliance, with the confidence that your client does not live in a glass house.

Conversely, the Small opinion documents several meet and confer meetings and discovery hearings where UMC’s counsel was clearly at a significant disadvantage, and progressively lost credibility with the court because they didn’t know what they didn’t know.

  1. Retaining Computer Forensics Consultants Late in the Game Did Not Save the Day

Eventually UMC retained forensic collection consultants several months after the duty to preserve kicked in. This reflects an old school reactive, “drag the feet” approach some organizations still take, where they try to deflect preservation obligations and then, once opposing counsel or the court force the issue, scramble and retain forensic consultants to parachute in.  In this situation it was already too late, as much the data had already been spoliated. And because of the lack of a process, including a data map, the collection efforts were disjointed and a haphazard. The opinion also reflects that this reactive fire drill resulted in significant data over-collection at significant cost to UMC.

In sum, Small v. University Medical Center is a 123 page illustration of what often happens when an organization does not have a systematic eDiscovery process in place. An effective process is established through the right people, processes and technology, such as the capabilities of the X1 Distributed Discovery platform. A complete copy of the court opinion can be accessed here: Small v. University Medical Center

Leave a comment

Filed under Best Practices, Case Law, compliance, Corporations, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, GDPR, Information Governance, Information Management, Preservation & Collection

When your “Compliance” and eDiscovery Processes Violate the GDPR

Time to reevaluate tools that rely on systemic data duplication

The European Union (EU) General Data Protection Regulation (GDPR) became effective in May 2018. To briefly review, the GDPR applies to the processing of “personal data” of EU citizens and residents (a.k.a. “data subjects”).” Personal data” is broadly defined to include “any information relating to an identified or identifiable natural person.” That could include email addresses and transactional business communications that are tied to a unique individual. GDPR is applicable to any organization that provides goods and services to individuals located in the EU on a regular enough basis, or maintains electronic records of their employees who are EU residents.

In additional to an overall framework of updated privacy policies and procedures, GDPR requires the ability to demonstrate and prove that personal data is being protected. Essential components for such compliance are data audit and discovery capabilities that allow companies to efficiently search and identify the information necessary, both proactively, and also reactively to respond to regulators and EU private citizen’s requests. As such, any GDPR compliance programs are ultimately hollow without consistent, operational execution and enforcement through an effective eDiscovery information governance platform.

However, some content management and archiving tool providers are repurposing their messaging with GDPR compliance. For example, an industry executive contact recently recounted a meeting with such a vendor, where their tool involved duplicating all of the emails and documents in the enterprise and then migrating all those copies to a central server cluster. That way, the tool could theoretically manage all the documents and emails centrally. Putting aside the difficulty of scaling up that process to manage and sync hundreds of terabytes of data in a medium-sized company (and petabytes in a Fortune 500), this anecdote underscores a fundamental flaw in tools that require systemic data duplication in order to search and manage content.

Under the GDPR, data needs to be minimized, not systematically duplicated en masse. It would be extremely difficult under such an architecture to sync up and remediate non-compliant documents and emails back at the original location. So at the end the day, this proposed solution would actually violate the GDPR by making duplicate copies of data sets that would inevitably include non-compliant information, without any real means to sync up remediation.Desktop_virtualization

The same is true for the much of the traditional eDiscovery workflows, which require numerous steps involving data duplication at every turn. For instance, data collection is often accomplished through misapplied forensic tools that operate by a broadly collecting copies through over collection. As the court said in In re Ford Motor Company, 345 F.3d 1315 (11th Cir. 2003): “[E]xamination of a hard drive inevitably results in the production of massive amounts of irrelevant, and perhaps privileged, information…” Even worse, the collected data is then re-duplicated one or often two more times by the examiner for archival purposes. And then the data is sent downstream for processing, which results in even more data duplication. Load files are created for further transfers, which are also duplicated.

Chad Jones of D4 explains on a recent webinar and in his follow-on blog post about how such manual and inefficient handoffs throughout the discovery process greatly increase risk as well as cost. Like antiquated factories spewing tons of pollution, outdated eDiscovery processes spin out a lot of superfluous data duplication. Much of that data likely contains non-compliant information, thus “polluting” your organization, including through your eDiscovery services vendors, with increased GDPR and other regulatory risk.

In light of the above, when evaluating your compliance and eDiscovery software, organizations should keep in mind these five key requirements to keep in line with GDPR and good overall information governance:

  1. Search data in place. Data on laptops and file servers need to be in searched in place. Tools that require copy and migration to central locations to search and manage are part of the problem, not the solution.
  1. Delete Data in Place. GDPR requires that non-compliance data be deleted on demand. Purging data on managed archives does not suffice if other copies are on laptops, unmanaged servers and other unstructured sources. Your search in place solution should also delete in place.
  1. Data Minimization. GDPR requires that organizations minimize data as opposed to exploding data through mass duplication.
  1. Targeted and Efficient Data Collection: Only potentially relevant data should be collected for eDiscovery and data audits. Over-collection leads to much greater cost and risk.
  1. Seamless integration with attorney review platforms, to bypass the processing steps which requires manual handoffs and load files.

X1 Data Audit & Compliance is a ground-breaking platform that meets these criterion while enabling system-wide data discovery supporting GDPR and many other information governance requirements.   Please visit here to learn more.

Leave a comment

Filed under Best Practices, compliance, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, GDPR, Information Governance, Information Management, Uncategorized

New Federal Rule of Evidence to Directly Impact Computer Forensics and eDiscovery Preservation Best Practices

At X1, an essential component of our mission is to develop and support exceptional technology for collecting electronic evidence to meet eDiscovery, investigative and compliance requirements. It is also our goal to keep you abreast of important developments in the industry that could ultimately impact collection strategies in the future and, consequently, your business.  To that end, we believe key new Federal Rules of Evidence will have a very significant impact on the practices of our customers and partners.

In a nutshell, the new development is a significant planned amendment to Federal Rule of Evidence 902 that will go into effect one year from now. This amendment, in the form of new subsection (14), is anticipated by the legal community to significantly impact eDiscovery and computer forensics software and its use by establishing that electronic data recovered “by a process of digfederalrulesofevidence-188x300_flat2ital identification” is to be self-authenticating, thereby not routinely necessitating the trial testimony of a forensic or technical expert where best practices are employed, as certified through a written affidavit by a “qualified person.” Notably, the accompanying official Advisory Committee notes specifically reference the importance of both generating “hash values” and verifying them post-collection as a means to meet this standard for self-authentication. This digital identification and verification process can only be achieved with purpose-built computer forensics or eDiscovery collection and preservation tools.

Rule 902, in its current form, enumerates a variety of documents that are presumed to be self-authenticating without other evidence of authenticity. These include public records and other government documents, notarized documents, newspapers and periodicals, and records kept in the ordinary course of business. New subpart (14) will now include electronic data collected via a process of digital identification as a key addition to this important rule.

Amended Rule 902, in pertinent part, reads as follows:

Rule 902. Evidence That Is Self-Authenticating
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:
* * *
(14) Certified Data Copied from an Electronic Device, Storage Medium, or File.
Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12).

The reference to the “certification requirements of Rule 902(11) or (12)” is a process by which a proponent seeking to introduce electronic data into evidence must present a certification in the form of a written affidavit that would be sufficient to establish authenticity were that information provided by a witness at trial. This affidavit must be provided by a “qualified person,” which generally would be a computer forensics, eDiscovery or information technology practitioner, who collected the evidence and can attest to the requisite process of digital identification utilized.

In applying Rule 902(14), the courts will heavily rely on the accompanying Judicial Conference Advisory Committee notes, which provide guidance and insight concerning the intent of the laws and how they should be applied. The Advisory Committee notes are published alongside the statute and are essentially considered an extension of the rule. The second paragraph of committee note to Rule 902(14) states, in its entirety, as follows:

“Today, data copied from electronic devices, storage media, and electronic files are ordinarily authenticated by ‘hash value.’ A hash value is a number that is often represented as a sequence of characters and is produced by an algorithm based upon the digital contents of a drive, medium, or file. If the hash values for the original and copy are different, then the copy is not identical to the original. If the hash values for the original and copy are the same, it is highly improbable that the original and copy are not identical. Thus, identical hash values for the original and copy reliably attest to the fact that they are exact duplicates. This amendment allows self-authentication by a certification of a qualified person that she checked the hash value of the proffered item and that it was identical to the original. The rule is flexible enough to allow certifications through processes other than comparison of hash value, including by other reliable means of identification provided by future technology.”

The Advisory Committee notes further state that Rule 902(14) is designed to streamline the admission of electronic evidence where its foundation is not at issue, while providing a notice procedure where “the parties can determine in advance of trial whether a real challenge to authenticity will be made, and can then plan accordingly.” While this rule provides that properly certified electronic data is now afforded a strong presumption of authenticity, the opponent may still lodge an objection, but the opponent now has the burden to overcome that presumption.  Additionally, the opponent remains free to object to admissibility on other grounds, such as relevance or hearsay.

Significant Impact Expected

While Rule 902(14) applies to the Federal Courts, the Rules of Evidence for most states either mirror or closely resemble the Federal Rules of Evidence, and it is thus expected that most if not all 50 states will soon adapt this amendment.

Rule 902(14) will most certainly and significantly impact computer forensics and eDiscovery practitioners by reinforcing best practices. The written certification required by Rule 902(14) must be provided by a “qualified person” who utilized best practices for the collection, preservation and verification of the digital evidence sought to be admitted. At the same time, this rule will in effect call into question electronic evidence collection methods that do not enable a defensible “digital identification” and verification process. In fact, the Advisory Committee notes specifically reference the importance of computer forensics experts, noting that a “challenge to the authenticity of electronic evidence may require technical information about the system or process at issue, including possibly retaining a forensic technical expert.”

In the eDiscovery context, I have previously highlighted the perils of both custodian self-collection for enterprise ESI collection and “print screen” methods for social media and website preservation. Rule 902(14) should provide the final nail in the coffin for those practices. For instance, if key social media evidence is collected through manual print screen, which is not a “process of digital identification” under Rule 902(14), then not only will the proponent of that evidence fail to take advantage of the efficiencies and cost-savings provided by the rule, they will also invite heightened scrutiny for not preserving the evidence utilizing best practices. The same is true for custodian self-collection in the enterprise. Many emails and other electronic documents preserved and disclosed by the producing party are often favorable to their case.  Without best practices utilized for enterprise data collection, such as with X1 Distributed Discovery, that information may not be deemed self-authenticating under this new rule.

In the law enforcement field, untrained patrol officers or field investigators are too often collecting electronic evidence in a manual and haphazard fashion, without utilizing the right tools that qualify as a “process of digital identification.” So for an example, if an untrained investigator collects a web page via the computer’s print screen process, that printout will not be deemed to be self-authenticating under Rule 902(14), and will face significant evidentiary hurdles compared to a properly collected web page via a solution such as X1 Social Discovery.

Also being added to Federal Rule of Evidence 902 is subpart (13), which provides that “a record generated by an electronic process or system that produces an accurate result” is similarly self-authenticating. This subpart will also have a beneficial impact on the computer forensics and eDiscovery field, but to a lesser degree than subpart (14). I will be addressing Rule 902(13) in a future post. The public comment period on amendments (13) and (14) is now closed and the Judicial Conference of the United States has issued its final approval. The amendments are currently under review by the US Supreme Court. If the Supreme Court approves these amendments as expected, they will become effective on December 1, 2017 absent Congressional intervention.

To learn more about this Rule 902(14) and other related topics, we’d like to invite you to watch this 45 minute webinar discussion led by David Cohen, Partner and Chair of Records & eDiscovery Group at Reed Smith LLP. The 45 minute webinar includes a Q&A following the discussion. We look forward to your participation.

Watch now > 

1 Comment

Filed under Authentication, Best Practices, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, Information Governance, Social Media Investigations

True Enterprise-Wide eDiscovery Collection is Finally Here

My previous post discussed the inability of any software provider to solve a critical need by delivering a truly scalable eDiscovery preservation and collection solution that can search across thousands of enterprise endpoints in a short period of time. In the absence of such a “holy grail” solution, eDiscovery collection remains dominated by either unsupervised custodian self-collection or manual services, driving up costs while increasing risk and disruption to business operations.

So today, we at X1 are excited to announce the release of X1 Distributed Discovery. X1 Distributed Discovery (X1DD) enables enterprises to quickly and easily search across up to tens of thousands of distributed endpoints and data servers from a central location.  Legal and compliance teams can easily perform unified complex searches across both unstructured content and metadata, obtaining statistical insight into the data in minutes, and full results with completed collection in hours, instead of days or weeks. Built on our award-winning and patented X1 Search technology, X1DD is the first product to offer true and massively scalable distributed data discovery across an organization. X1DD replaces expensive, cumbersome and highly disruptive approaches to meet enterprise discovery, preservation, and collection needs.

x1dd_diagram

Enterprise eDiscovery collection remains a significant pain point, subjecting organizations to both substantial cost and risk. X1DD addresses this challenge by starting to show results from distributed data across global enterprises within minutes instead of today’s standard of weeks, and even months. This game-changing capability vastly reduces costs while greatly mitigating risk and disruption to operations.

Targeted and iterative end point search is a quantum leap in early data assessment, which is critical to legal counsel at the outset of any legal matter. However, under today’s industry standard, the legal team is typically kept in the dark for weeks, if not months, as the manual identification and collection process of distributed, unstructured data runs its expensive and inefficient course.  To illustrate the power and capabilities of X1DD, imagine being able to perform multiple detailed Boolean keyword phrase searches with metadata filters across the targeted end points of your global enterprise. The results start returning in minutes, with granular statistical data about the responsive documents and emails associated with specific custodians or groups of custodians.

Once the legal team is satisfied with a specific search string, after sufficient iteration, the data can then be collected by X1DD by simply hitting the “collect” button. The responsive data is “containerized” at each end point and automatically transmitted to a central location, where all data is seamlessly indexed and ready for further culling and first pass review. Importantly, all results are tied back to a specific custodian, with full chain of custody and preservation of all file metadata.

This effort described above — from iterative distributed search through collection, transmittal to a central location, and indexing of data from thousands of endpoints — can be accomplished in a single day. Using manual consulting services, the same project would require several weeks and hundreds of thousands of dollars in collection costs alone, not to mention significant disruption to business operations. Substantial costs associated with over-collection of data would mount as well.

X1DD operates on-demand where your data currently resides — on desktops, laptops, servers, or even the Cloud — without disruption to business operations and without requiring extensive or complex hardware configurations. Beyond enterprise eDiscovery and investigation functionality, organizations can offer employees the award-winning X1 Search, improving productivity while maintaining compliance.

X1DD will be featured in an April 19 webinar with eDiscovery expert Erik Laykin of Duff & Phelps. Watch a full briefing and technical demo of X1DD and find out for yourself why X1 Distributed Discovery is a game-changing solution. Or please contact us to arrange for a private demo.

Leave a comment

Filed under Best Practices, Corporations, Desktop Search, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, Information Governance, Information Management, Preservation & Collection, X1 Search 8