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Archive for the ‘archiving software’ Category

South Africa’s Motivation for Information Governance: Privacy, Fraud and the Cloud

Tuesday, March 19th, 2013

On a recent trip to South Africa, where Symantec sponsored an event with PricewaterhouseCoopers (PwC) entitled The Protection of Personal Information (POPI) Drives Information Governance, customers and partners shared important insights. One major concern the attendees had was how they will comply with the newly proposed privacy legislation set to pass any day now.

POPI is the first comprehensive body of law addressing privacy in the country. Personal data is defined as a natural person’s name, date of birth, national identification number, passport number, health or credit information and other personally identifiable information. The bill has eight principles, each of which addresses aspects of how data must be collected, stored, processed, secured, expired and how access may be granted. This bill will apply to both public and private organizations and is driving the need for archiving, classification, eDiscovery, and data loss prevention technology.

Interestingly, the main motivator for purchasing eDiscovery technology will be the need for organizations in Africa to be able to conduct internal investigations to detect fraud. South Africa’s recent POPI legislation was crafted in order to address the age of digital information and the risks associated with it, but also to instill a level of confidence from the global economy in South Africa as a safe place to do business. A recent survey by Compuscan found that South Africa and Nigeria have the highest number of reported fraud cases in Africa. In addition, fraud related crimes have cost African businesses and governments at least $10.9 billion in 2011-12. Of the 875 reported cases, 40% of fraud perpetrators were in upper management.

Archiving the email of top management is a recommended best practice to address this fraud because it ensures that there will be a record of electronic communications should an investigation or lawsuit be necessary. Similarly, leveraging in-house eDiscovery and data loss prevention (DLP) technology enables investigators within the organizations to collect and analyze these emails in conjunction with other pertinent information to detect and even prevent fraud. To date, the majority of organizations in South Africa lack this kind of capability because they have not invested in technology.

Because corruption and fraud have been impediments to doing business in South Africa in the past, businesses and the government are taking steps to address these issues. Having the ability to conduct internal investigations will be a huge advantage for organizations looking to gain control over their information and those who commit fraud. PwC Partner Kris Budnik noted at the conference, “Many times when clients call me for an emergency forensic investigation, about 50% of the time in South Africa I cannot help them.  The reason for this is that the clients are not keeping the appropriate information governance systems in place and not keeping log files. Many times when we go to collect evidence, none is there because it has truly been overwritten in the data environment due to poor information governance practices.”

Litigation does not appear to be the biggest factor for purchasing eDiscovery technologies and implementing workflows as one might expect. The reason for this is unclear, but may be related to a less aggressive litigation profile as compared to that of the U.S. Much of the discovery in South Africa that involves electronically stored information is printed, reviewed and produced in paper format. The concern over retaining relevant metadata and reviewing/producing data in the format data was originally created does not seem to be top of mind for litigators.

Litigators in South Africa are not taking advantage of the rich information in metadata to supplement their cases or to challenge opposing counsel’s claims/productions. Also of concern is the inability to deduplicate and sort data once metadata is removed. The reason for this is most likely because there have not been enough cases where lack of metadata has been challenged. With time, and as cross-border litigation increases, there will be more demand for eDiscovery technology in the traditional legal context.

The increase in privacy concerns and internal fraud investigations presents a compelling reason for investing in archiving, eDiscovery, and DLP technologies for businesses in South Africa. Many organizations are moving data to the cloud to streamline POPI related objectives faster and because outsourcing their infrastructure is very attractive to organizations that don’t want to own the responsibilities of managing their information on premise. The main business drivers for cloud archiving in South Africa are: email continuity, cost and compliance.

It is interesting to observe how different countries and economies respond to technology and what drives use cases. The legal frameworks in each jurisdiction around the world vary, but the great equalizer will be technology. This is because whether it is privacy, litigation or fraud driving the information governance plan, the technology is the same.

Check out this article for more information on privacy legislation in South Africa.

Available soon: please visit our eDiscovery passport page for more information the legal system, eDiscovery, privacy and data protection in South Africa and other countries.

 

Gibson Dunn eDiscovery Report Hails Industry Advances

Thursday, March 7th, 2013

At eDiscovery 2.0, we have consistently followed the reports that Gibson Dunn has released on the state of eDiscovery. This is for good reason given its reputation as an excellent source of information on the trends affecting individual organizations and the industry as a whole.

The recently released 2012 annual report is no different, except that the overall tone is more positive. Instead of spotlighting the continuing problem of sanctions, the report showcases predictive coding and rules reform as the key eDiscovery trends leading into 2013. Describing these trends as being potential game-changers, the report also notes that “many questions remain” and warns that the impact of these trends may affect organizations in unanticipated and perhaps troubling ways.

Predictive Coding

In its report, Gibson Dunn happily indicates that unlike previous years, predictive coding technology appears to be ready for prime time. With several decisions from 2012 expressly or tacitly approving the use of predictive coding, the report speculates that many organizations and their counsel could become adopters of the technology. As the technology becomes more widespread and additional court decisions provide judicial imprimatur to the technology, the prospects increase that predictive coding could “drastically alter the way in which documents are reviewed for production.”

Nevertheless, challenges remain before this gradually increasing trend becomes a fully blown industry norm. While the promise of predictive coding is in its potential for rapid and cost effective document review, the report questions whether the technology will live up to that hype. Indeed, Gibson Dunn asks whether predictive coding is like any other review tool: “is it merely the latest review technology that, while useful, neither obtains widespread adoption nor revolutionizes the landscape?” Such questions are particularly legitimate given the substantial costs associated with most of the reported predictive coding cases. Indeed, the recent case of Gabriel Technologies v. Qualcomm exemplifies this predictive coding cost paradox.

Rules Changes

Another positive industry development that is fraught with questions concerns potential changes to the Federal Rules of Civil Procedure. As the report indicates, the federal Civil Rules Advisory Committee has made significant progress on a proposed draft amendment to Rule 37(e). Designed to broaden the existing protection against sanctions, the proposal would theoretically safeguard an organization’s pre-litigation destruction of information from sanctions in most circumstances. The lone exceptions would include destruction that was “willful or in bad faith and caused substantial prejudice in the litigation” or that “irreparably deprived a party of any meaningful opportunity to present a claim or defense.” While such a rule undoubtedly could reduce the costs and risks associated with ESI preservation, ambiguities in the draft language, together with statements in the draft advisory committee note, could ultimately water down the proposal’s intended protections.

Another encouraging rule change being considered by rules-makers includes an effort to better emphasize proportionality limitations on the Rule 26(b)(1) permissible scope of discovery. While characterized by the report as an “underused” though “increasingly important” doctrine, a proportionality amendment to Rule 26(b)(1) could do much to bring the problematic costs and delays of eDiscovery under control.

The report also sounded a note of caution on the proportionality front. Referring to the Sedona Conference’s recently updated Commentary on Proportionality in Electronic Discovery, the report observes that technology will be a key aspect in any proportionality analysis. With that background, Gibson Dunn cautions against misusing the efficiencies of cutting edge eDiscovery technologies to increase the scope of production under the guise that such discovery will comport with proportionality principles:

Litigants and courts will therefore need to be vigilant in preventing the use of such technologies from becoming a justification for expanding the scope of discovery beyond an appropriate focus on documents relevant to the issues in dispute, and thereby exacerbating the very problems that technologies seek to address.

Other Industry Trends

Gibson Dunn spotlighted several other key trends from 2012 in its 33-page report. Among them were developments in cross-border eDiscovery, the increasing importance of foreign data protection laws, congressional attempts to bolster domestic privacy regulations, the correlation between ESI preservation and courts sanctions, and discovery of information found on social networking sites. These and other industry trends confirm that “progress is being made in addressing e-discovery’s challenges[,] [t]he dense fog that often seems to surround e-discovery appears to have lifted somewhat, and the collective anxiety lowered a little.”

Despite such sanguine observations, risks remain for organizations and their lawyers. The report concludes by raising the specter of sanctions, which will likely continue to be an unpredictable hobgoblin unless meaningful rules reform takes place. Until that time, clients and counsel alike should be proactive in adopting industry best practices to better ensure compliance with existing rules and jurisprudence.

They’re Here…. 7th Circuit Mock Hearing & Panel Discussion Videos on Predictive Coding

Tuesday, February 26th, 2013

The 7th Circuit Pilot Program sponsored an educational mock hearing and expert panel discussion in Chicago last May to tackle important issues related to the use of predictive coding technology. The long awaited video footage of the event is finally here and available for review courtesy of Symantec.

The event begins with U.S. Chief Judge for the Northern District of Illinois, James F. Holderman, welcoming a courtroom packed full of people eager to learn more about novel issues presented by increased usage of predictive coding technology in litigation. National Archives Director of Litigation, Jason R. Baron, follows with opening remarks about the role of information retrieval in eDiscovery to set the stage for a lively mock hearing and panel discussion about a number of hot topics related to the use of predictive coding technology. Notable speakers include Maura R. Grossman, Counsel at Wachtell, Lipton, Rosen & Katz; Dr. David Lewis, co-founder of the TREC Legal Track; Ralph Losey, Partner at Jackson Lewis; Matt Nelson, eDiscovery Counsel at Symantec; Jeff Sharer, Partner at Sidley Austin; and Martin T. Tully, Partner and National eDiscovery Practice Group Chair, Katten Muchin Rosenman LLP.

The hypothetical hearing centers on a dispute between parties to a patent litigation matter regarding the use of predictive coding technology. Plaintiffs argue defendants should use predictive coding technology to assist with the production and review of documents. Defendants counter that they have a process in place for responding to discovery requests that is sufficient and that includes the use of legal technology approaches like keyword search that are commonly used during discovery. The hearing participants take positions (not necessarily their own) about important issues such as the reliability of predictive coding technology, steps needed to establish a protocol that is fair to both parties, and cost shifting. Ralph Losey does an excellent job playing the role of “judge” and summarizes key arguments made by each party before ruling from the bench at the conclusion of the hearing.

Following the mock hearing, Losey and others debated important issues related to the use of predictive coding as part of a lively panel discussion.  The panel discussion covered a broad range of interesting issues, but some of the liveliest discussion related to the following topics:

  •  Should parties be required to disclose their use of predictive coding technology?
  • Is it appropriate to use keyword searches to cull electronically stored information (ESI) prior to using predictive coding technology?
  • Could the misapplication of statistics be the downfall of predictive coding?

The mock argument and panel discussion are among several excellent resources practitioners should consider reviewing to help them navigate a rapidly shifting and sometimes confusing predictive coding technology landscape.  Please feel free to share your comments and feedback below and be sure to visit the 7th Circuit Pilot Program’s homepage for more information about the group’s efforts to help clarify some of the most complex and important eDiscovery issues facing litigators today.

This post was co-authored by Symantec’s Allison Walton, eDiscovery Counsel

Breaking News: Over $12 million in Attorney Fees Awarded in Patent Case Involving Predictive Coding

Thursday, February 14th, 2013

A federal judge for the Southern District of California rang in the month of February by ordering plaintiffs in a patent related case to pay a whopping $12 million in attorney fees. The award included more than $2.8 million in “computer assisted” review fees and to add insult to injury, the judge tacked on an additional $64,316.50 in Rule 11 sanctions against defendants’ local counsel. Plaintiffs filed a notice of appeal on February 13th, but regardless of the final outcome, the case is chock-full of important lessons about patent litigation, eDiscovery and the use of predictive coding technology.

The Lawsuit

In Gabriel Technologies Corp. v. Qualcomm Inc., plaintiffs filed a lawsuit seeking over $1 billion in damages. Among its eleven causes of action were claims for patent infringement and misappropriation of trade secrets.  The Court eventually dismissed or granted summary judgment in defendants’ favor as to all of plaintiffs’ claims making defendants the prevailing party and prompting Defendants’ subsequent request for attorneys’ fees.

In response to defendants’ motion for attorney fees, U. S. District Judge Anthony J. Battaglia relied on plaintiffs’ repeated email references to “the utter lack of a case” and their inability to identify the alleged patent inventors to support his finding that their claims were brought in “subjective bad faith” and were “objectively baseless.” Given these findings, Judge Battaglia determined that an award of attorney fees was warranted.

The Attorney Fees Award

The judge then turned to the issue of whether or not defendants’ fee request for $13,465,331.01 was reasonable. He began by considering how defendants itemized their fees which were broken down as follows:

  • $10,244,053 for its outside counsel Cooley LLP (“Cooley”);
  • $391,928.91 for document review performed by Black Letter Discovery, Inc. (“Black Letter”); and
  • $2,829,349.10 for a document review algorithm generated by outside vendor H5.

The court also considered defendants’ request that plaintiffs’ local counsel be held jointly and severally liable for the entire fee award based on the premise that local counsel is required to certify that all pleadings are legally tenable and “well-grounded in fact” under Federal Rule of Civil Procedure 11.

Following a brief analysis, Judge Battaglia found the overall request “reasonable,” but reduced the fee award by $1 million. In lieu of holding local counsel jointly liable, the court chose to sanction local counsel in the amount of $64,316.50 (identical to the amount of local counsel’s fees) for failing to “undertake a reasonable investigation into the merits of the case.”

Three Lessons Learned

The case is important on many fronts. First, the decision makes clear that filing baseless patent claims can lead to financial consequences more severe than many lawyers might expect. If reviewed and upheld on appeal, counsel in the Ninth Circuit accustomed to fending off unsubstantiated patent or misappropriation claims will be armed with an important new tool to ward off would-be patent trolls.

Second, Judge Battaglia’s decision to order Rule 11 sanctions should serve as a wake-up call for local counsel. The ruling reinforces the fact that merely rubber-stamping filings and passively monitoring cases is a risky proposition. Gabriel Technologies illustrates the importance of properly monitoring lead counsel and the consequences of not complying with the mandate of Rule 11 whether serving as lead or local counsel.

The final lesson relates to curbing the costs of eDiscovery and the importance of understanding tools like predictive coding technology. The court left the barn door wide open for plaintiffs to attack defendants’ predictive coding and other fees as “unreasonable,” but plaintiffs didn’t bite. In evaluating H5’s costs, the court determined that Cooley’s review fees were reasonable because Cooley used H5’s “computer-assisted” review services to apparently cull down 12 million documents to a more reasonable number of documents prior to manual review. Although one would expect this approach to be less expensive than paying attorneys to review all 12 million documents, $2,829,349.10 is still an extremely high price to pay for technology that is expected to help cut traditional document review costs by as much as 90 percent.

Plaintiffs were well-positioned to argue that predictive coding technology should be far less expensive because the technology allows a fraction of documents to be reviewed at a fraction of the cost compared to traditional manual review. These savings are possible because a computer is used to evaluate how human reviewers categorize a small subset of documents in order to construct and apply an algorithm that ranks the remaining documents by degree of responsiveness automatically. There are many tools on the market that vary drastically in quality and price, but a price tag approaching $3 million is extravagant and should certainly raise a few eyebrows in today’s predictive coding market. Whether or not plaintiffs missed an opportunity to challenge the reasonableness of defendants’ document review approach may never be known. Stay tuned to see if these and other arguments surface on appeal.

Q&A with Allison Walton of Symantec and Laura Zubulake, Author of Zubulake’s e-Discovery: The Untold Story of my Quest for Justice

Monday, February 4th, 2013

The following is my Q&A with Laura Zubulake, Author of Zubulake’s e-Discovery: The Untold Story of my Quest for Justice.

Q: Given your case began in 2003, and the state of information governance today, do you believe that adoption to has been too slow? Do you think organizations in 2013, ten years later, have come far enough in managing their information?

A: From a technology standpoint, the advancements have been significant. The IT industry has come a long way with regard to the tools available to conduct eDiscovery. Alternatively, surveys indicate a significant percentage of organizations do not prioritize information management and have not established eDiscovery policies and procedures. This is disappointing. The fact that organizations apparently do not understand the value of proactively managing information only puts them at a competitive disadvantage and at increased risk.

 Q: Gartner predicts that the market will be $2.9 billion by 2017. Given this prediction, don’t you think eDiscovery is basically going to be absorbed as a business process and not something so distinct as to require outside 3rd party help? 

A: First, as a former financial executive those predictions, if realized, are reasonably attractive. Any business that can generate double-digit revenue growth until 2017, in this economy and interest rate environment, is worthy of note (assuming costs are controlled). Second, here I would like to distinguish between information governance and eDiscovery. I view eDiscovery as a subset of a broader information governance effort. My case while renowned for eDiscovery, at its essence, was about information. I insisted on searching for electronic documents because I understood the value and purpose of information. I could not make strategic decisions without, what I refer to as, “full” information. The Zubulake opinions were a result of my desire for information, not the other way around. I believe corporations will increasingly recognize the need to proactively manage information for business, cost, legal, and risk purposes. As such, I think information governance will become more of a business process, just like any management, operational, product, and finance process.

With regard to eDiscovery, I think there will continue to be a market for outside third-party assistance. eDiscovery requires specific skills and technologies. Companies lacking financial resources and expertise, and requiring assistance to address the volume of data will likely deem it economical to outsource eDiscovery efforts. As with any industry, eDiscovery will evolve.  The sector has grown quickly. There will be consolidation. Eventually, the fittest will survive.

Q: What do you think about the proposed changes to the FRCP regarding preservation? 

A: As a former plaintiff (non-attorney), eDiscovery was (to me) about preservation. Very simply, documents could not be collected, reviewed, and produced if they had not been preserved. Any effort to clarify preservation rules would benefit all parties—uncertainty created challenges. Of course, there needs to be a balance between overwhelming corporations with legal requirements and costs versus protecting a party’s rights to evidence. Apparently, the current proposals do not specifically pertain to preservation. They concern the scope of discovery and proportionality and thus indirectly address the issue of preservation. While this would be helpful, it is not ideal. Scope is, in part, a function of relevance – a frequently debated concept. What was relevant to me might not have been relevant to others. Regarding proportionality, my concern is perspective.  Too often I find discussions about proportionality, stem from the defendant’s perspective. Rarely, do I hear the viewpoint of the plaintiff represented. Although not all plaintiffs are individuals, often the plaintiff is the relatively under-resourced party. Deciding whether the burden of proposed discovery outweighs its likely benefits is not a science. As I wrote in my book:

Imagine if the Court were to have agreed with [the Defendant’s] argument and determined the burden of expense of the proposed discovery in my case outweighed its likely benefit. Not only would the Zubulake opinions not have come to fruition, but also I would have been denied my opportunity to prove my claims. 

Q: Lastly, what other trends are you see in in the area of eDiscovery and what predictions do you have for the market in 2013? 

A: eDiscovery Morphs. Organizations will realize that eDiscovery should be part of a broader information governance effort. Information governance will become a division within a corporation with separate accountable management from which operations, legal, IT, and HR professionals can source and utilize information to achieve goals. Financial markets will increasingly reward companies (with higher multiples) who proactively manage information.

Reorganization. Organizations will recognize while information is their most valuable asset it is fearless— crossing functions, divisions, borders and not caring if it overwhelms an entity with volume, costs, and risks. Organizational structures will need to adapt and accommodate the ubiquitous nature of information. A systems thinking framework (understanding how processes influence one another within a whole) will increasingly replace a business silo structure. Information and communication managed proactively and globally, will improve efficiency, enhance profitability, reduces costs, increase compliance, and mitigate risks.

Search. Algorithms become an accepted search tool. Although keyword, concept, cluster, etc. searches will still play a role. For years, law enforcement, government, and Wall Street have used algorithms—the concept is not new and not without peril (significant market corrections were the result of algorithms gone wrong). Parties confronted with volumes of data and limited resources will have no choice but to agree to computer assistance. However, negative perceptions and concerns about algorithms will only change when there is a case where the parties initiate and voluntarily agree to their use.

Education. Within information governance efforts, organizations will increasingly establish training for employees. Employees need to be educated about the origination, maintenance, use, disposal, risks, rules, and regulations associated with ESI. A goal should be to lessen the growth of data and encourage smart and efficient communications. Education is a cost-control and risk-mitigating effort.

BYOD Reconsidered. Thinking a BYOD to work policy is cost-effective will be questioned and should be evaluated on a risk-adjusted basis. When companies analyze the costs (cash outlay) of providing employees with devices versus the unquantifiable costs associated with the lack of control, disorganization, and increased risks – it will become clear BYOD has the potential to be very expensive.

Government Focus. I had the privilege of addressing the Dept. of Justice’s Civil E-Discovery training program. It was evident to me that eDiscovery is one of the department’s focuses. With recent headlines concerning emails uncovering evidence (e.g. Fast and Furious), government entities (state and federal) will increasingly adopt rules, procedures, and training to address ESI. This brings me back to your first question—have organizations come far enough in managing their information? Government efforts to focus on eDiscovery will incentivize more corporations to (finally) address eDiscovery and information governance challenges.

Stay tuned for more breaking news coverage with industry luminaries.

LegalTech Plenary 2013: Symantec Mediates the eDiscovery Debate of the Year

Thursday, January 10th, 2013

The eDiscovery frenzy that has gripped the American legal system over the past decade has become increasingly expensive. Particularly costly to both clients and the courts is the process of preserving and reviewing ESI. As a solution to these costs, many are emphasizing the concept of “proportionality.” Proportionality typically requires that the benefits of discovery be commensurate with its corresponding burdens.

Despite nearly universal agreement that eDiscovery should be governed by proportionality standards, there remains a polarizing debate that threatens to curtail the impact of proportionality. That debate is centered on disagreements over the scope of ESI preservation, the standard for permissible discovery and the use of cutting edge review technologies like predictive coding.

To better understand these issues and to explore feasible solutions, Philip Favro, Discovery Counsel at Symantec, will lead a lively discussion at LegalTech New York among industry leaders such U.S. Magistrate Judge Frank Maas, Ariana Tadler of Milberg LLP and Shawn Cheadle, General Counsel (Military Space) at Lockheed Martin Space Systems Co. The panelists will take stances on either side of difficult questions like:

  •  Should proportionality standards apply to the preservation of ESI to help address the high costs of retaining so much data?
  • Will the proportionality rule ever be used to rein in lawyers and judges that have distorted the standard of discovery from reasonableness to perfection?
  • Can predictive coding facilitate proportional discovery when lawyers are unwilling to share their training set of documents?

While our expert panelists are well-versed in both sides of the proportionality debate, we had a little fun imagining what they might be going through before they take the stage on Tuesday, January 29th.  Watch this video to get an exclusive behind-the-scenes look into the LTNY Locker Room.

In addition, don’t miss our microsite for the complete plenary session description and a look at Symantec’s LTNY 2013 presence. We hope you stay tuned to eDiscovery 2.0 from now until the show to hear what Symantec has planned for the supersessions, our special event, contest giveaways and product announcements.

For Westerners Seeking Discovery From China, Fortune Cookie Reads: Discovery is Uncertain, and Will Likely Be Hard

Monday, January 7th, 2013

In a recent Inside Counsel article, we explored the eDiscovery climate in China and some of the most important differences between the Chinese and U.S. legal systems. There is an increased interest in China and the legal considerations surrounding doing business with Chinese organizations, which we also covered on this Inside Counsel webcast.

 Five highlights from this series include:

1.  Conflicting Corporate Cultures- In general, business in China is done in a way that relies heavily on relationships. This can easily cause a conflict of interest for organizations and put them at risk for violations under the FCPA and UK Bribery Act. The concept that “relationships are gold” or Guanxi is crucial to conducting successful business in China. However, a fine line exists for organizations, necessitating a need for strong local counsel and guidance. Moreover, Chinese businesses don’t share the same definitions the Western world does for concepts like: information governance, legal hold or privacy.

 2.   FCPA and the UK Bribery Act- Both of these regulations are very troublesome for those doing business in China, yet necessary for regulating white-collar crime. In order to do business in China one must walk a fine line developing close relationships, without going too far and participating in bribery or other illegal acts. There are increased levels of prosecution under both of these statutes as businesses globalize.

3.  Drastically Different Legal Systems- The Chinese legal system is very different than those of common law jurisdictions. China’s legal system is based on civil law and there is no requirement for formal pre-litigation discovery. For this reason, litigants may find it very difficult to successfully procure discovery from Chinese parties. Chinese companies have been historically slow to cooperate with U.S. regulatory bodies and many discovery requests in civil litigation can take up to a year for a response. A copy of our eDiscovery passport on China can be found here, along with other important countries.

4.  State Secrets- In addition to the differences between common and civil law jurisdictions, China has strict laws protecting state secrets. Anything deemed a state secret would not be discoverable, and an attempt to remove state secrets from China could result in criminal prosecution. The definition of a state secret under People’s Republic of China law includes a wide range of information and is more ambiguous than Western definitions about national security (for example, the Chinese definitions are less defined than those in the U.S. Patriot Act). Politically sensitive data is susceptible to the government’s scrutiny and protection, regardless of whether it is possessed by PRC citizens or officials working for foreign corporations- there is no distinction or exception for civil discovery.

5.  Globalization- Finally, it is no secret that the world has become one huge marketplace. The rapid proliferation of information creation as well as the clashing of disparate legal systems creates real discovery challenges. However, there are also abundant opportunities for lawyers that become specialized in the Asia Pacific region today. Lawyers that are particularly adept in eDiscovery and Asia will flourish for years to come.

For more, read here…

The Global Impact of eDiscovery and Data Protection Laws in Germany

Thursday, January 3rd, 2013

The acknowledged power of Continental Europe is Germany. Its steady economy and stable politics offer foreign companies an inviting prospect for investment. And yet, as organizations explore and begin developing business opportunities in Germany, they often become entangled in a web of unfamiliar legal issues. These issues, particularly eDiscovery and data protection laws, can be a costly and time consuming trap for unsuspecting companies. To avoid becoming ensnared by legal minutiae, attorney fees and lost opportunities, companies should consider gaining at least a basic understanding regarding the German eDiscovery and data protection landscape.

Discovery in Germany

By way of introduction, it should be noted that Germany, like most European countries, is a civil code country whose legal traditions are distinct from the common law notions that characterize the United States. According to its legal precepts, civil litigation in Germany is conducted in a vastly different fashion than in the U.S. For example, “discovery,” as it is known in the United States, does not exist in Germany. Interrogatories, categorical document requests and requests for admissions are simply unavailable as discovery devices. Instead, Germany only allows a limited exchange of documents, with the parties typically only disclosing information that supports their claims.

The U.S. Court of Appeals for the Seventh Circuit recently commented on this key distinction when it observed in Heraeus Kulzer v. Biomet that “the German legal system . . . does not authorize discovery in the sense of Rule 26 of the Federal Rules of Civil Procedure.” The court went on to explain that “[a] party to a German lawsuit cannot demand categories of documents from his opponent. All he can demand are documents that he is able to identify specifically—individually, not by category.”

Another key distinction to discovery in Germany is the lack of rules or case law requiring the preservation of ESI or paper documents. This stands in sharp contrast to American jurisprudence, which typically requires organizations to preserve information as soon as they “reasonably anticipate” litigation.

Data Protection in Germany

Another critical, distinguishing characteristic of Germany’s legal traditions are its notions of data protection and individual privacy. Unlike the mostly laissez-faire approach in the U.S. to data protection, Germany has adopted a comprehensive framework to secure personal information from unreasonable government and corporate intrusions. To guard against such intrusions, Germany has strict requirements that govern any “processing” of personal information. In addition, corporate data processing in Germany must satisfy company Works Councils, which represent the interests of employees and protect their privacy rights. Those protections extend to domestic litigation and international data transfers, to which Works Councils and company Data Protection Officers may object.

Another important aspect to German data protection laws are the restrictions they place on transferring personal information across international borders. Companies with offices in Germany must ensure that the country where such data will be transferred has enacted laws that meet EU data protection standards. Transfers of personal data to countries that do not meet those standards are generally forbidden, with substantial fines imposed for non-compliance.

This backdrop of complexity suggests that companies exploring business opportunities in Germany should obtain a better understanding of its discovery and data protection laws. There are various resources that provide straightforward answers to these issues at no cost to the end-user. For example, global legal expert James Daley recently recorded two podcasts that discuss the challenges associated with German discovery and data privacy laws. Think tanks such as The Sedona Conference have also made available materials that provide significant detail on these issues, including its “International Overview of Discovery, Data Privacy, and Disclosure Requirements.”

By obtaining a greater awareness of the legal workings inside Germany, organizations can more capably develop a cooperative, proactive process for how they will address data preservation and production for cross-border litigation. By so doing, organizations can be better prepared to address potential eDiscovery and data protection snares that are inextricably intertwined with globalization.

Legal Tech 2013 Sessions: Symantec explores eDiscovery beyond the EDRM

Wednesday, December 19th, 2012

Having previously predicted the ‘happenings-to-be’ as well as recommended the ‘what not to do’ at LegalTech New York, the veteran LTNY team here at Symantec has decided to build anticipation for the 2013 event via a video series starring the LTNY un-baptized associate.  Get introduced to our eDiscovery-challenged protagonist in the first of our videos (above).

As for this year’s show we’re pleased to expand our presence and are very excited to introduce eDiscovery without limits, along with a LegalTech that promises sessions, social events and opportunities for attendees in the same vein.   In regards to the first aspect – the sessions – the team of Symantec eDiscovery counsels will moderate panelist sessions on topics ranging across and beyond the EDRM.  Joined by distinguished industry representatives they’ll push the discussion deeper in 5 sessions with a potential 6 hours of CLE credits offered to the attendees.

Matt Nelson, resident author of Predictive Coding for Dummies will moderate “How good is your predictive coding poker face?” where panelists tackle the recently controversial subjects of disclosing the use of Predictive Coding technology, statistical sampling and the production of training sets to the opposition.

Allison Walton will moderate, “eDiscovery in 3D: The New Generation of Early Case Assessment Techniques” where panelists will enlighten the crowd on taking ECA upstream into the information creation and retention stages and implementing an executable information governance workflow.  Allison will also moderate “You’re Doing it Wrong!!! How To Avoid Discovery Sanctions Due to a Flawed Legal Hold Process” where panelists recommend best practices towards a defensible legal hold process in light of potential changes in the FRCP and increased judicial scrutiny of preservation efforts.

Phil Favro will moderate “Protecting Your ESI Blindside: Why a “Defensible Deletion” Offense is the Best eDiscovery Defense” where panelists debate the viability of defensible deletion in the enterprise, the related court decisions to consider and quantifying the ROI to support a deletion strategy.

Chris Talbott will moderate a session on “Bringing eDiscovery back to Basics with the Clearwell eDiscovery Platform”, where engineer Anna Simpson will demonstrate Clearwell technology in the context of our panelist’s everyday use on cases ranging from FCPA inquires to IP litigation.

Please browse our microsite for complete supersession descriptions and a look at Symantec’s LTNY 2013 presence.  We hope you stay tuned to eDiscovery 2.0 throughout January to hear what Symantec has planned for the plenary session, our special event, contest giveaways and product announcements.

Symantec Positioned Highest in Execution and Vision in Gartner Archiving MQ

Tuesday, December 18th, 2012

Once again Gartner has named Symantec as a leader in the Enterprise Information Archiving magic quadrant.  We’ve continued to invest significantly in this market and it is gratifying to see the recognition for the continued effort we put into archiving both in the cloud and on premises with our Enterprise Vault.cloud and Enterprise Vault products. Symantec has now been rated a leader 9 years in a row.

 

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Gartner does not endorse any vendor, product or service depicted in the Magic Quadrant, and does not advise technology users to select only those vendors with the highest ratings. Gartner research publications consist of the opinions of Gartner’s research organization and should not be construed as statements of fact. Gartner disclaims all warranties, expressed or implied, with respect to this research, including any warranties of merchantability or fitness for a particular purpose.

 This year marks a transition in a couple of regards.  We are seeing an acceleration of customers looking for the convenience and simplicity of SaaS based archiving solution. The caveat being that they want the security and trust that only a vendor like Symantec can deliver.

Similarly the market has continued to ask for integrated solutions that deliver information archiving and eDiscovery to quickly address often complex and time sensitive process of litigation and regulatory requests.  The deep integration we offer between our archiving solutions – Enterprise Vault and Enterprise Vault.cloud – and the Clearwell eDiscovery Platform has led many customers to deploy these together to streamline their eDiscovery workflow.

An archive is inherently deployed with the long term in mind.  Over the history of Gartner’s Enterprise Information Archiving MQ, only Symantec has provided a consistent solution to customers by investing and innovating with Enterprise Vault to lead the industry in performance, functionality, and support without painful migrations or changes. 

We’re excited about what we have planned next for Enterprise Vault and Enterprise Vault.cloud and intend to maintain our leadership in the years to come. Our customers will continue to be able to manage their critical information assets and meet their needs for eDiscovery and Information Governance as we improve our products year after year.