Category Archives: Enterprise eDiscovery

April 3, 2013 · 7:18 AM

SharePoint eDiscovery: Ten Times the Cost

Sharepoint no colorOur recent webinar on SharePoint eDiscovery challenges with eDiscovery Journals’ Greg Buckles featured a substantive and detailed discussion on the nuances, pitfalls and opportunities associated with eDiscovery of data from SharePoint sites. This topic is very timely as the majority of enterprises are deploying the Microsoft platform at an accelerated rate, with the solution reaching $1 billion in sales faster than any other Microsoft product in history. As SharePoint enables enterprises to consolidate file shares, Intranet sites, internal message boards and wikis, project management, collaboration and more into a single platform, it provides significant operational efficiencies as well as eDiscovery challenges. The vast majority of current SharePoint deployments are versions 2007 or 2010, and neither have meaningful internal eDiscovery or even export features.

Greg Buckles is a well-known eDiscovery expert with a strong command of technical issues concerning data collection from SharePoint sites. In his presentation, he addressed the particular challenge of preserving data from SharePoint in a targeted matter and in context. According to Buckles, current eDiscovery practices involve mass raw data exports from the platform, instead of a preferable practice of review and early case assessment in place to enable a far more efficient and targeted collection of only potentially relevant information. Bulk exports from SharePoint contain a mass of unstructured data that is out of context with no easy way to associate files, document lists, metadata fields and the many other native data types and fields. As a result, the data must be sorted out on the back-end in time-consuming and highly manual eDiscovery processing and review efforts.  Buckles reports that he routinely sees tenfold increases eDiscovery processing and review costs because of these challenges.

A full video recording of the webinar can be accessed here.

Another key SharePoint eDiscovery challenge involves its deployment architecture. By their nature, typical SharePoint deployments are de-centralized as the solution is geared toward supporting individual departments and “teams” as opposed to forcing data centralization to a single and large data center. Appliance-based eDiscovery solutions or remote collections do not work as it may take weeks if not months to copy a multi-terabyte SharePoint site over a network connection and a large corporation may have several dozens of SharePoint silos to collect from.  Manual collection efforts, which are geared toward mass “data dumps,” are as mentioned very costly and inefficient.

Instead, what is needed is a solution such as X1 Rapid Discovery can quickly and remotely install and operate within the same local network domain to enable localized search, review and early case assessment in place. X1 Rapid Discovery’s full content indexing and preview of native SharePoint document libraries and lists, as well as it robust search, document filters, intuitive review interface, uniquely enables targeted and contextual search, preservation and export of SharePoint evidence in its native format. In fact we believe it is the only solution available that enables true in-place early case assessment and eDiscovery review of SharePoint sites, including iterative search, tagging and full fidelity preview in place, without the requirement to first export all of the data out of the Platform.

To learn more, sign on to the recorded webinar or please contact us at info@x1discovery.com for a further briefing to learn how to save your organization or your clients tens of thousands of dollars on litigation costs associated with SharePoint.

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January 17, 2013 · 9:43 AM

“Act Reasonably” — Two Court-Issued Checklists Outlining Defensible, Targeted ESI Collection

Recently two separate and prominent courts — the federal court for the Northern District of California and the Delaware Court of Chancery (which is the primary court of equity for Delaware registered corporations) issued eDiscovery preservation guidelines. This is not unprecedented as other courts have issued similar written guidance in the form of general guidance or even more enforceable local rules of court specifically addressing eDiscovery protocols. What I found particularly interesting, however, is both courts provided fairly specific guidance on the scope of collection and preservation. In the case of the California court, which notes that its “guidelines are designed to establish best practices for evidence preservation in the digital age,” the Court offers a checklist for Rule 26(f) “meet and confer” conferences with good detail on suggested ESI preservation protocols. The Delaware Court of Chancery also issued a detailed checklist or “sample collection outline.” ESI preservation checklists are useful practice guides, and these are sanctioned by two separate influential courts.

This is important as the largest expense directly associated with eDiscovery is the cost of overly inclusive preservation and collection, which leads to increased volume charges and attorney review costs. To the surprise of many, properly targeted preservation initiatives are permitted by the courts and can be enabled by adroit software that is able to quickly and effectively access and search these data sources throughout the enterprise.

The value of targeted preservation is recognized in the Committee Notes to the FRCP amendments, which urge the parties to reach agreement on the preservation of data and the keywords used to identify responsive materials. (Citing the Manual for Complex Litigation (MCL) (4th) §40.25 (2)).  And In re Genetically Modified Rice Litigation, 2007 WL 1655757 (June 5, 2007 E.D.Mo.), the court noted that “[p]reservation efforts can become unduly burdensome and unreasonably costly unless those efforts are targeted to those documents reasonably likely to be relevant or lead to the discovery of relevant evidence.”

The checklist from the California Northern District and the guidelines issued by the Delaware court are consistent with these principles as they call for the specification of date ranges, custodian names and search terms for any ESI to be preserved. The Northern District checklist, for instance, provides for the identification of specific custodians and job titles of custodians whose ESI is to  be preserved, and also specific search phrases search terms “that will be used to identify discoverable ESI and filter out ESI that is not subject to discovery.”

However, many lawyers shy away from a targeted collection strategy over misplaced defensibility concerns, optioning instead for full disk imaging and other broad collection efforts that exponentially escalate litigation costs. The fear by some is that there always may be that one document that could be missed. However, in my experience of following eDiscovery case law over the past decade, the situations where litigants face exposure on the preservation front typically involve an absence of a defensible process. When courts sanction parties, it is usually because there is not a reasonable legal hold procedure in place, where the process is ad hoc and made up on the fly and/or not effectively executed. I am personally unaware of a published decision involving a fact pattern where a company featured a reasonable collection and preservation process involving targeted collection executed pursuant to standard operating procedures, yet was sanctioned because one or two relevant documents slipped through the cracks.

This is because the duty to preserve requires reasonable efforts, not infallible means, to collect potentially relevant information. As succinctly stated by the Delaware court: “Parties are not required to preserve every shred of information. Act reasonably.”

Another barrier standing in the way of defensible and targeted collection is that searching and performing early case assessment at the point of collection is not feasible in the decentralized global enterprise with traditional eDiscovery and information management tools. What is needed to address these challenges for the de-centralized enterprise is a field-deployable search and eDiscovery solution that operates in distributed and virtualized environments on-demand within these distributed global locations where the data resides. In order to meet such a challenge, the eDiscovery and search solution must immediately and rapidly install, execute and efficiently operate locally, including in a virtual environment, where the site data is located, without rigid hardware requirements or on-site physical access.

This ground breaking capability is what X1 Rapid Discovery provides. Its ability to uniquely deploy and operate in the IaaS cloud also means that the solution can install anywhere within the wide-area network, remotely and on-demand. Importantly, the search index is created virtually in the location proximity of the data subject to collection. This enables even globally decentralized enterprises to perform targeted search and collection efforts in an efficient, defensible and highly cost effective manner. Or, in the words of the Delaware court — the ability to act reasonably.

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August 22, 2012 · 5:48 PM

No Legal Duty or Business Reason to Boil the Ocean for eDiscovery Preservation

As an addendum to my previous blog post on the unique eDiscovery and search burdens associated with the de-centralized enterprise, one tactic I have seen attempted by some CIOs to address this daunting challenge is to try to constantly migrate disparate data from around the globe into a central location. Just this past week, I spoke to a CIO that was about to embark on a Quixotic endeavor to centralize hundreds of terabytes of data so that it could be available for search and eDiscovery collection when needed. The CIO strongly believed he had no other choice as traditional information management and electronic discovery tools are not architected and not suited to address large and disparate volumes of data located in hundreds of offices and work sites across the globe that all store information locally. But boiling the ocean through data migration and centralization is extremely expensive, disruptive and frankly unworkable.

Industry analyst Barry Murphy succinctly makes this point:

Centralization runs counter to the realities of the working world where information must be distributed globally across a variety of devices and applications.  The amount of information we create is overwhelming and the velocity with which that information moves increases daily.  To think that an organization can find one system in which to manage all its information is preposterous. At the same time, the FRCPs essentially put the burden on organizations to be accountable for all information, able to conduct eDiscovery on a moment’s notice.  As we’ve seen, the challenge is daunting.

As I wrote earlier this month, properly targeted preservation initiatives are permitted by the courts and can be enabled by effective software that is able to quickly and effectively access and search these data sources throughout the enterprise.  The value of targeted preservation was recognized in the Committee Notes to the FRCP amendments, which urge the parties to reach agreement on the preservation of data and the keywords used to identify responsive materials. (Citing the Manual for Complex Litigation (MCL) (4th) §40.25 (2)).  And In re Genetically Modified Rice Litigation, 2007 WL 1655757 (June 5, 2007 E.D.Mo.), the court noted that “[p]reservation efforts can become unduly burdensome and unreasonably costly unless those efforts are targeted to those documents reasonably likely to be relevant or lead to the discovery of relevant evidence.”

What is needed to address both eDiscovery and enterprise search challenges for the de-centralized enterprise is a field-deployable search and eDiscovery solution that operates in distributed and virtualized environments on-demand within these distributed global locations where the data resides. This ground breaking capability is what X1 Rapid Discovery provides. Its ability to uniquely deploy and operate in the IaaS cloud also means that the solution can install anywhere within the wide-area network, remotely and on-demand. This enables globally de-centralized enterprises to finally address their overseas data in an efficient, expedient, defensible and highly cost-effective manner.

But I am interested in hearing if anyone has had success with the centralization model. In my 12 years in this business and the 8 years before that as a corporate attorney, I have yet to see an effective or even workable situation where a global enterprise has successfully centralized all of their electronically stored information into a single system consisting of hundreds of terabytes. If you can prove me wrong and point to such a verifiable scenario, I’ll buy you a $100 Starbucks gift certificate or a round of drinks for you and your friends at ILTA next week.  If you want to take the challenge of just meet up at ILTA next week in Washington, feel free to email me.

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August 7, 2012 · 4:23 PM

The Global De-Centralized Enterprise: An Un-Met eDiscovery Challenge

Enterprises with data situated within a multitude of segmented networks across North America and the rest of the world face unique challenges for eDiscovery and compliance-related investigation requirements. In particular, the wide area networks of large project engineering, oil & gas, and systems integration firms typically contain terabytes of geographically disparate information assets in often harsh operating environments with very limited network bandwidth. Information management and eDiscovery tools that require data centralization or run on expensive and inflexible hardware appliances cannot, by their very nature, address critical project information in places like Saudi Arabia, China, or the Alaskan North Slope.

Despite vendor marketing hype, network bandwidth constraints coupled with the requirement to migrate data to a single repository render traditional information management and eDiscovery tools ineffective to address de-centralized global enterprise data. As such, the global decentralized enterprise represents a major gap for in-house eDiscovery processes, resulting in significant expense and inefficiencies. The case of U.S. ex rel. McBride v. Halliburton Co. [1]  illustrates this pain point well. In McBride, Magistrate Judge John Facciola’s instructive opinion outlines Halliburton’s eDiscovery struggles to collect and process data from remote locations:

Since the defendants employ persons overseas, this data collection may have to be shipped to the United States, or sent by network connections with finite capacity, which may require several days just to copy and transmit the data from a single custodian . . . (Halliburton) estimates that each custodian averages 15–20 gigabytes of data, and collection can take two to ten days per custodian. The data must then be processed to be rendered searchable by the review tool being used, a process that can overwhelm the computer’s capacity and require that the data be processed by batch, as opposed to all at once. [2]

Halliburton represented to the court that they spent hundreds of thousands of dollars on eDiscovery for only a few dozen remotely located custodians. The need to force-collect the remote custodians’ entire set of data and then sort it out through the expensive eDiscovery processing phase instead of culling, filtering and searching the data at the point of collection drove up the costs.

Despite the burdens associated with the electronic discovery of distributed data across the four corners of the earth, such data is considered accessible under the Federal Rules of Civil Procedure and thus must be preserved and collected if relevant to a legal matter. However, the good news is that the preservation and collection efforts can and should be targeted to only potentially relevant information limited to only custodians and sources with a demonstrated potential connection to the litigation matter in question.

This is important as the biggest expense associated with eDiscovery is the cost of overly inclusive preservation and collection. Properly targeted preservation initiatives are permitted by the courts and can be enabled by adroit software that is able to quickly and effectively access and search these data sources throughout the enterprise. The value of targeted preservation is recognized in the Committee Notes to the FRCP amendments, which urge the parties to reach agreement on the preservation of data and the key words, date ranges and other metadata to identify responsive materials. [3]  And In re Genetically Modified Rice Litigation, the court noted that “[p]reservation efforts can become unduly burdensome and unreasonably costly unless those efforts are targeted to those documents reasonably likely to be relevant or lead to the discovery of relevant evidence.” [4]

However, such targeted collection and ECA in place is not feasible in the decentralized global enterprise with current eDiscovery and information management tools. What is needed to address these challenges for the de-centralized enterprise is a field-deployable search and eDiscovery solution that operates in distributed and virtualized environments on-demand within these distributed global locations where the data resides. In order to meet such a challenge, the eDiscovery and search solution must immediately and rapidly install, execute and efficiently operate in a localized virtualized environment, including public or private cloud deployments, where the site data is located, without rigid hardware requirements or on-site physical access.

This is impossible if the solution is fused to hardware appliances or otherwise requires a complex on-site installation process. After installation, the solution must be able to index the documents and other data locally and serve up those documents for remote but secure access, search and review through a web browser. As the “heavy lifting” (indexing, search, and document filtering) is all performed locally, this solution can effectively operate in some of the harshest local environments with limited network bandwidth. The data is not only collected and culled within the local area network, but is also served up for full early case assessment and first pass review on site, so that only a much smaller data set of potentially relevant data is ultimately transmitted to a central location.

This ground breaking capability is what X1 Rapid Discovery provides. Its ability to uniquely deploy and operate in the IaaS cloud also means that the solution can install anywhere within the wide-area network, remotely and on-demand. This enables globally decentralized enterprises to finally address their overseas data in an efficient, expedient defensible and highly cost effective manner.

If you have any thoughts or experiences with the unique eDiscovery challenges of the de-centralized global enterprise, feel free to email me. I welcome the collaboration.

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[1] 272 F.R.D. 235 (2011)

[2] Id at 240.

[3] Citing the Manual for Complex Litigation (MCL) (4th) §40.25 (2)):

[4] 2007 WL 1655757 (June 5, 2007 E.D.Mo.)

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June 4, 2012 · 5:31 PM

Judge Peck: Cloud For Enterprises Not Cost-Effective Without Efficient eDiscovery Process

Hon. Andrew J. Peck
United States Magistrate Judge

Federal Court Magistrate Judge Andrew Peck of the New York Southern District is known for several important decisions affecting the eDiscovery field including the ongoing  Monique da Silva Moore v. Publicis Group SA, et al, case where he issued a landmark order authorizing the use of predictive coding, otherwise known as technology assisted review. His Da Silva Moore ruling is clearly an important development, but also very noteworthy are Judge Peck’s recent public comments on eDiscovery in the cloud.

eDiscovery attorney Patrick Burke, a friend and former colleague at Guidance Software, reports on his blog some interesting comments asserted on the May 22 Judges panel session at the 2012 CEIC conference. UK eDiscovery expert Chris Dale also blogged about the session, where Judge Peck noted that data stored in the cloud is considered accessible data under the Federal Rules of Civil Procedure (see, FRCP Rule 26(b)(2)(B)) and thus treated no differently by the courts in terms of eDiscovery preservation and production requirements as data stored within a traditional network. This brought the following cautionary tale about the costs associated with not having a systematic process for eDiscovery:

Judge Peck told the story of a Chief Information Security Officer who had authority over e-discovery within his multi-billion dollar company who, when told that the company could enjoy significant savings by moving to “the cloud”, questioned whether the cloud provider could accommodate their needs to adapt cloud storage with the organization’s e-discovery preservation requirements. The cloud provider said it could but at such an increased cost that the company would enjoy no savings at all if it migrated to the cloud.

In previous posts on this blog, we outlined how significant cost-benefits associated with cloud migration can be negated when eDiscovery search and retrieval of that data is required.  If an organization maintains two terabytes of documents in the Amazon or other IaaS cloud deployments, how do they quickly access, search, triage and collect that data in its existing cloud environment if a critical eDiscovery or compliance search requirement suddenly arises?  This is precisely the reason why we developed X1 Rapid Discovery, version 4. X1RD is a proven and now truly cloud-deployable eDiscovery and enterprise search solution enabling our customers to quickly identify, search, and collect distributed data wherever it resides in the Infrastructure as a Service (IaaS) cloud or within the enterprise. While it is now trendy for eDiscovery software providers to re-brand their software as cloud solutions, X1RD is now uniquely deployable anywhere, anytime in the IaaS cloud within minutes. X1RD also features the ability to leverage the parallel processing power of the cloud to scale up and scale down as needed. In fact, X1RD is the first pure eDiscovery solution (not including a hosted email archive tool) to meet the technical requirements and be accepted into the Amazon AWS ISV program.

As far as the major cloud providers, the ones who choose to solve this eDiscovery challenge (along with effective enterprise search) with best practices technology will not only drive significant managed services revenue but will enjoy a substantial competitive advantage over other cloud services providers.

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