Customers Cite E-Discovery Best Practices

Last year's changes to the U.S. Federal Rules of Civil Procedure (FRCP) launched a mass focus on e-discovery, or the electronic management of organizational data for compliance and litigation readiness. And after more than a year of implementation, at least a few customers are finally ready to reflect on what they've done.

While many firms, particularly SMBs, continue to struggle with the FRCP mandate, the ones who've managed to institute policies and procedures for the speedy and accurate retrieval of electronic information have a lot to say about what works -- and what doesn't.

Following is a list of suggestions culled from the experience of users in the field who are far along in their e-discovery implementations.

Make email archiving a priority
When IT pros at Foxhollow Technologies Inc., a startup medical device supplier, looked to install email archiving three years ago, management forced the project to the back burner, despite a general lack of email control. "There were users who saved everything and had gigabytes -- or more -- of email messages, noted Chuck Arconi, system administrator at the company. At the time, Foxhollow had about 600 employees, but its email system chewed up 400 Gbytes of storage.

Then the other shoe dropped when the company became involved in a lawsuit. Suddenly, funding for the email archiving project was no longer a contentious issue. "The legal department had no problem finding the capital needed to pay for the entire project. In fact, they gave us more than twice as much money as we needed.” Aconi's team put in a system from Mimosa, which eliminated the barriers to litigation readiness. (See the table on page two of this article for a list of other vendors offering e-discovery products and services.) “Before, a paralegal would have to spend two to four hours trying to find the right messages in each mail box. Now the work is done with a click of a button,” noted Arconi.Thankfully, IT had done its homework and the funding was there when the company needed it. Some organizations won't be as lucky. Clearly, litigation can strike when least expected, and it pays to be ready.

Don't assume your e-discovery needs are static
If you think your business will only need a certain level of litigation readiness forever, think again. Exposure to litigation tends to grow with company size, and your profile can change as business methods shift.

One business, CF Jordan, which has been supplying commercial construction services to companies in the Southwest since 1969, found itself in new waters after execs realized the firm was self-insuring more of its major projects. “We were taking more risks in how projects were financed and had to make sure we could find the appropriate data if needed,” noted John Buraczyk, IT director at the company. To protect itself, the company bought email archiving software from C2C Systems Inc. Buraczyk can assure management that any materials needed for legal discovery can be produced in a matter of hours rather than days.

Explore storage options
E-discovery often forces organizations to re-evaluate their approach to storage. Don't be afraid to make changes.

Email maintenance, for instance, was an issue for Pinnacle Financial, a mortgage company that had about 1,400 employees in about 100 locations across the U.S. Most of those workers were storing information locally, in files dubbed Personal Storage Tables (PSTs). While helpful to individual users, PSTs can be difficult for the IT department to track. “Our Microsoft Exchange server was growing so rapidly that we put in a SAN to manage the data more effectively,” noted Rick Chin, vice president of IT at the financial services firm.The new NetApp system, along with Mimosa software, allowed Pinnacle to cut its email primary storage requirements from 128 Gbytes to about 16 Gbytes, thanks to offloading to archives. Without changing its storage infrastructure, the firm could be struggling today.

Be vertically aware
Industries differ in their requirements for compliance and litigation readiness. Know the common practices for your particular market.

“Some corporations have a greater understanding of the nature of their risk and therefore find it much easier to cost-justify deployment of solutions than other corporations,” said Mark Diamond, CEO of e-discovery consulting firm Contoural.

Real estate, construction, financial services, and pharmaceuticals are all highly litigious businesses. “We find ourselves sued on a regular basis,” noted CF Jordan’s Buraczyk.

Some law firms have developed expertise in this area. Akerman Senterfitt in Ft. Lauderdale, Fla.; Kirkpatrick & Lockhart Preston Gates Ellis LLP in Seattle; and Quarles & Brady LLP in Milwaukee are companies focused on the e-discovery area.To Page 2Check out the outsourcing option
Many companies do not have time to do the legal discovery process in house. A number of outsourcing options from vendors such as Catalyst, IBM, and Iron Mountain are available. On offer are services for email archiving, digital records retention, and overall litigation response.

“Outsourcing offers a number of potential advantages for companies,” noted Brian Babineau, a senior analyst at the Enterprise Strategy Group. Most companies tend to start an outsourcing discussion by looking at ways that outsourcing can save firms money. In addition, an outsourcer may be more familiar with e-discovery issues and might move faster, be more innovative, or be more flexible at delivering services than an in-house staff. Also, outsourcing is a way to free up existing staff so they can focus on the core business.

Be prepared to buy multiple tools
“There is a Wild West feel now to the e-discovery market,” noted Debra Logan, a research vice president at Gartner. Customers should be willing to adjust to a certain lack of integration among solutions and go with what seems best for a given situation.

“We felt that there would have been a lot of integration and additional programming required by us if we deployed some of the different products we considered,” noted Foxhollow Technologies’s Arconi.

Sources indicate that it is probably rare that one vendor can present a total e-discovery solution, and it's unrealistic to expect that. This becomes clear when examining different products. Today's leading e-discovery vendors started out in different niches, which quickly shows up. “A vendor may have started with a good archiving system or a forensic system and then tried to add other functions on top of that," stated Contoural’s Diamond.In certain cases, products whose main function is archiving may run their e-discovery components in separate servers. In other cases, they may even have separate log-in systems and user interfaces. This in turn can drive up training and integration requirements for small and medium businesses.

Look beyond email
The initial focus with compliance systems has been on email archiving. Many companies have correctly recognized that these systems lacked sound procedures, so it was the most obvious place to start shoring up their e-discovery infrastructures.

But email isn't the only thing that interests lawyers. In 2006, James Hardie LV, an international supplier of fiber cement technology with operations in the United States, Australia, and New Zealand, found it needed more than email archiving. “We needed to put a system in place to take care of the file system,” noted Steve Killan, IT manager. Besides EMC Corp.’s EmailXtender to archive its email messages, the company installed StoredIQ’s Intelligent eDiscovery solution in order to track file data.

Enterprise Strategy Group found that six out of every 10 discovery requests involves information in office productivity programs, such as Microsoft Office, and one out of two involves information stored in a database management system. And guess what? “Most companies are not ready to share information in their DBMS,” stated ESG's Babineau.

Don't be a pack rat
Many IT departments are concerned about whether or not they will be able to deliver desired documents to lawyers and avoid any legal issues. In response, some companies have started to save every item that they generate. “Some companies have been trying to prepare for a worst-case scenario by saving everything, but that is not needed,” explained Gartner’s Logan. In fact, that approach does nothing more than complicate a company’s storage policy and drive up its storage costs.Rather than become data pack rats, companies need to figure out policies that make sense. Keep in mind that the FRCP has some leeway. If a company has a policy that seems to be reasonable and the company appears to be trying to comply with it, then those steps should be sufficient for the regulators.

Experts say companies should keep information online for six months and have it available offline via tape for up to a year. In general, if the information is older than that, it does not have to be kept. But again, different rules apply to different industries, and it's best to get specific legal advice before implementing any throw-away policies.

Don't rest on your laurels
The issue of e-discovery started mainly with the growing importance of email. But other forms of electronic messaging are slowly moving onto the docket as potential information sources. “The question is when will the courts determine that items such as instant messaging and texting need to be discoverable,” said Gartner’s Logan. “Access to that information is something that companies eventually will be asked to provide.”

Bottom line? If your company is in a highly litigious industry, you'd better start scoping out options for archiving more than email.

Table 1: An E-Discovery Products Sampler

– Paul Korzeniowski is a freelance writer who specializes in data storage issues. He is based in Sudbury, Mass., and can be reached at [email protected].

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