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A recent survey reports that U.S. companies face an average of 305 pending lawsuits internationally. For large U.S. companies ($1 billion or more in revenue)that number has soared to 556 on average, with an average of 50 new disputes emerging each year for nearly half of them. To properly manage the role of digital information in an investigative or legal setting, an enterprise--whether it is a Fortune 500 company, a small accounting firm or a vast government agency--must develop an effective electronic discovery program. Since the amendments to the Federal Rules of Civil Procedure, which took effect in December 2006, it is even more vital that the lifecycle of electronically stored information be understood and properly managed to avoid risks and costly mistakes.
This books holds the keys to success for systems administrators, information security and other IT department personnel who are charged with aiding the e-discovery process.
*Comprehensive resource for corporate technologists, records managers, consultants, and legal team members to the e-discovery process, with information unavailable anywhere else
*Offers a detailed understanding of key industry trends, especially the Federal Rules of Civil Procedure, that are driving the adoption of e-discovery programs
*Includes vital project management metrics to help monitor workflow, gauge costs and speed the process
Solutions in this chapter:
* The Focus on Litigation Preparedness * The Emergence of Better Enterprise Search * The Threat of Discovery Trolls * Centralization of E-discovery Efforts * Folksonomies * Enterprise Software and Litigation Support Platforms * Insourcing the E-discovery Process * Automated E-discovery Review * Records Retention and Accessibility * The Market and Profession Overall
E-discovery is such a broad and encompassing topic that enhancements, improvements, and other changes in corporate best practices are emerging on a near daily basis. Major areas where corporations are looking at e-discovery and changes to its landscape include:
* Focusing on litigation preparedness * The emergence of better enterprise searches * Complications from "e-discovery trolls" * Centralization of e-discovery activities and actions * The emergence of folksonomies in corporate e-discovery * The merging and mashing up of enterprise applications and litigation support applications * Insourcing the e-discovery review process * Completing reviews in automated ways * Examining record accessibility and retention policies * Taking other steps to cut e-discovery costs
Litigation is not something to take lightly, of course, and e-discovery is one of the central pieces of the puzzle. Mistakes should be as few and far between as possible. "As notable cases such as Qualcomm v. Broadcom and AMD v. Intel have shown, under the revised Federal Rules of Civil Procedure, the ramifications from e-discovery mistakes can be far-reaching," said Craig Carpenter, VP of E-discovery Solutions and General Counsel for Recommind.
As the vast amount of information in corporate databases, messaging systems, and file servers only continues to increase, that proverbial needle in the haystack is even harder to find.
In this chapter, we'll talk about how things should get easier in the next few years to come.
The Focus on Litigation Preparedness
In corporations worldwide, but especially in the United States, there is an increased focus on being prepared to respond to and vigorously defend matters surrounding pending litigation. Particularly with regard to the recently amended Federal Rules of Civil Procedure and the new requirements in e-discovery, you will find counsel and companies paying new attention to both how to avoid and how to respond to lawsuits. The FRCP, to which all companies transacting business within the United States are subject, allows that either party in a civil lawsuit may ask for the other party to produce documents or electronically stored information, or ESI, that may support its claim in the lawsuit or the defense against such a claim in a lawsuit.
Indeed, consider the following statistics on the threat of litigation looming on the horizon. The litigation threat is a large and growing problem for enterprises. Here are few indicators of the scope of the problem, based on an annual survey by the law firm Fulbright & Jaworski LLP.
* One-third of U.S. corporations are facing at least 25 lawsuits.
* 18 percent of companies are defending themselves against more than 100 lawsuits in the United States alone.
* 48 percent of companies reported they faced new regulatory proceedings within the past year.
* 40 percent of companies have been hit with at least one lawsuit in the past year with more than $20 million at stake.
Part of being prepared in this litigious age, at least from the corporate perspective, is the confidence that your colleagues can produce accurate records that the FRCP can demand at any point in time. In order to do so, rigid policies, simple and well-defined processes, and intelligent content management solutions must all operate within an overall e-discovery program. You will see companies looking to outside counsel for consultation on creating and developing these plans in order to be better prepared for any litigation that might arise. While creating this plan is a formidable challenge, there really are no alternatives, and companies are beginning to realize that sobering fact.
The Emergence of Better Enterprise Search
It has been said that there are many millionaires to be made and companies to be started in the area of enterprise search. When you consider the fact that much of our economy is based on knowledge product and not on manufacturing tangible goods and services, it is apparent that the immense amounts of information generated within businesses in this country is staggering. What's even more crippling is the thought of having to find a specific reference or narrowly relevant documents in that giant morass.
At times, it seems that user-friendly computer searching is something only Google has been able to do with any competence and simplicity. When was the last time you tried to find that key e-mail and failed? Do you remember a phrase that appeared in some document you read within the last six months but are at a loss as to where to find it? Do you even know where you would start?
The same problem faces e-discovery professionals, who often know much less than a document's owner about the content and context in which it can be found. Now software developers and computer companies are beginning to realize that search is a monster that can be tackled from a variety of different approaches. As co-workers need the ability to find information generated by their colleagues, even those located on another continent or in another time zone, or documents written in a different language, litigation support professionals also need the ability to sift through these vast piles of data with ease, accuracy, and not just a basic set of keywords.
The good news is that new enterprise search platform features are emerging to integrate with litigation support software to help corporations get their arms around their data. These platforms are starting to offer the following advances, among others:
* Conceptual search It is onerous to transform thoughts into computer language in order to get search results. Such an approach not only leads to frustration, but incompleteness and inaccuracy as well. Natural language search tools are emerging that actually allow professionals to query the software in a way that feels normal and comfortable to them, resulting in a better quality result set with fewer missing items and fewer false positives.
* Automatic categorization Imagine receiving a search result set that was automatically categorized into easy-to-read lists based on where they were found, how often they occurred, what type of result hit they are, what project they relate to, and any other "sortable" information in the metadata of the file itself? By having automatic categorization in your platform, you can easily include—or just as easily exclude—large groups of results that have relevance (or not) to your case.
* Advanced algorithms The very kernel of search tools—the algorithm through which the index of terms and items is created—is improving as well, making individual computers more powerful and less complex. Better search software will find more information, index it better, and return more useful result sets.
Ultimately, enterprises will be able to benefit from the legal and productivity benefits that come from merging the features of search and information management tools.
For more information on how enterprise search software itself is transforming and maturing, consider the book Making Search Work – Implementing Web, Intranet, and Enterprise Search, by Martin White (2007, ISBN 978-1-85604-502-2).
Tools & Traps ...
One wrinkle in this fabric is the emergence of desktop search products. As the popular blog Lifehacker points out, "In a world where a search box puts the entire Internet at your fingertips, it seems more pointless and inefficient than ever to drill down through your file structure when you're looking for a specific file on your hard drive. In the past few years, we've seen myriad desktop search applications designed to fill this need. But which is best? And if users see search become more and more effective, they may be more prone to:
* Organize information less and less, and
* Keep more and more information
Obviously, a lack of organization is problematic for e-discovery efforts since it promotes a certain lack of completeness to the result set. However, keeping more information than ever also runs counter to the advice of counsel in many cases. Records retention programs are important. We'll touch on them later in this chapter, but be aware that desktop search and enterprise search are not the same and may cause divergent outcomes in some situations.
The Threat of Discovery Trolls
Perhaps you know of the "patent troll" movement. According to Wikipedia, "[a] patent troll is a pejorative term used for a person or company that enforces its patents against one or more alleged infringers in a manner considered unduly aggressive or opportunistic. A related, less pejorative expression is non-practicing entity (NPE) which describes a patent owner who does not manufacture or use the patented invention."
Patent trolls work a lot like any other company that is involved in defending and monetizing a patent portfolio. However, their main objective is gaining revenue from licensing patent deals, sometimes under the threat of litigation, on existing technology—not on developing new technology that ultimately is patentable. This is accomplished in a number of ways:
* They monitor the market and watch for potentially infringing technologies.
* They examine published patent applications for signals that other firms are manufacturing potentially infringing technology.
Once they've identified a target, they start the war. First they may sue a vulnerable company that has much at stake, or limited resources for defense, mainly to establish a precedent to convince other players in the industry to enter into licensing agreements. Or, they may invoke the "shock and awe" offense and litter an industry with suits.
Now, the United States Supreme Court has recently ruled that injunctions must have a standard test of reasonableness applied rather than be granted automatically, a significant blow dealt to the legions of patent trolls. Indeed, Jessica Holzer in Forbes concluded, "The high court's decision deals a blow to patent trolls, which are notorious for using the threat of permanent injunction to extort hefty fees in licensing negotiations as well as huge settlements from companies they have accused of infringing. Often, those settlements can be far greater than the value of the infringing technology: Recall the $612.5 million that Canada's Research in Motion forked over to patent-holding company NTP to avoid the shutting down of its popular BlackBerry service." However, there is clearly money to be made by patent trolls.
Similarly, e-discovery trolls are emerging from the woodwork and making up a newly significant threat to firms. As e-discovery costs mount and gain attention from media outlets and news channels, there will likely be an increase in these "troll" types of lawsuits. This really hinges on the emergence of the new Federal Rules of Civil Procedure code as it pertains to e-discovery. Lexbe LC (www.lexbe.com) offers the following rundown of the new rules' significance to e-discovery:
* Rule 26 Automatic Disclosure of ESI: Parties in litigation must provide a copy (or description by category and location) of ESI that will support that party's claims and/or defenses.
* Rule 26 Enhanced Meet and Confer Requirements: Parties must meet and confer at the outset of the case to discuss their plans and proposals regarding the conduct of the litigation, including any issues relating to preservation, disclosure, or discovery of ESI, including the form in which ESI should be produced and claims of privilege, or protection as trial-preparation material.
Excerpted from E-discovery: Creating and Managing an Enterprisewide Program by Karen Schuler Copyright © 2009 by Elsevier, Inc.. Excerpted by permission of Syngress. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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