Tag Archives: Federal Rules of Civil Procedure

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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Filed under eDiscovery & Compliance, Enterprise eDiscovery

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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Filed under Best Practices, Case Law, Cloud Data, Enterprise eDiscovery, IaaS, Preservation & Collection