e-discovery 2.0

One of the clear eDiscovery trends that has taken root during the past year is defensible deletion. Indeed, there are any number of news stories reporting that more organizations are taking steps to eliminate electronically stored information (ESI) that has little to any business value. This is further confirmed by industry surveys whose empirical data suggests that a tipping point has been reached on the issue of defensible deletion. For example, in a recent survey conducted by the eDJ Group, over 96% of the respondents recognized that “defensible deletion of information is necessary in order to manage growing volumes of digital information.” The report accompanying the eDJ Group survey succinctly summarized the new-found urgency surrounding defensible deletion: “Deletion isn’t just a nice corporate “housekeeping” idea; it is now a necessity…”

Nevertheless, many organizations remain on the defensible deletion sidelines. While they see the potential value in getting rid of useless ESI, they are often hesitant to do so for a variety of reasons. As described in a recent Inside Counsel webinar, those reasons include any or some combination of the following:

1. The Lack of an Organized Process
2. Ineffective Technology
3. Budget Constraints
4. Fear of Repercussions Stemming from Data Destruction

While these reasons are understandable given the challenges associated with developing a defensible deletion strategy, they can be addressed with an effective information governance plan.

This fact was recently spotlighted by United States Magistrate Judge Paul Grewal, Anne Kershaw, Founder and Principal of A.Kershaw, PC // Attorneys & Consultants, and Eric Lieber, the Director of Legal Technology at Toyota Motor Sales, at the Legal Tech conference in New York. What is most evident and important from the various video excerpts of their discussion is the panelists’ general agreement that the judiciary has recognized that companies may destroy ESI in many instances without adverse consequences. That the judiciary is leaving the door open for organizations to defensibly delete ESI in a reasonable fashion belies the myth that all data must be kept forever. This is consistent with other industry voices, which have observed that the risk of eDiscovery sanctions is dropping. And as the panelists confirmed, this risk could decrease even further if the proposed amendments to Federal Rule of Civil Procedure 37(e) are implemented.

With the threat of sanctions reduced, there are now fewer obstacles outside the organization to get in the way of developing an effective information governance plan. Such a plan, which includes an organized process with sufficient budget to engage necessary personnel and acquire effective technologies, is not mission impossible. Instead, companies whose personnel work cooperatively to find a solution that decreases the massive amounts of stored ESI will likely echo the sentiments of John “Hannibal” Smith from the 1980s television series the A-Team: “I love it when a plan comes together!”

Apple obtained a narrow discovery victory yesterday in its long running legal battle against fellow technology titan Samsung. In Apple Inc. v. Samsung Electronics Co. Ltd, the court ordered non-party Google to turn over the search terms and custodians that it used to produce documents in response to an Apple subpoena.

According to the court’s order, Apple argued for the production of Google’s search terms and custodians in order “to know how Google created the universe from which it produced documents.” The court noted that Apple sought such information “to evaluate the adequacy of Google’s search, and if it finds that search wanting, it then will pursue other courses of action to obtain responsive discovery.”

Google countered that argument by defending the extent of its production and the burdens that Apple’s request would place on Google as a non-party to Apple’s dispute with Samsung. Google complained that Apple’s demands were essentially a gateway to additional discovery from Google, which would arguably be excessive given Google’s non-party status.

Sensitive to the concerns of both parties, the court struck a middle ground in its order. On the one hand, the court ordered Google to produce the search terms and custodians since that “will aid in uncovering the sufficiency of Google’s production and serves greater purposes of transparency in discovery.” But on the other hand, the court preserved Google’s right to object to any further discovery efforts by Apple: “The court notes that its order does not speak to the sufficiency of Google’s production nor to any arguments Google may make regarding undue burden in producing any further discovery.”

This latest opinion from the Apple v. Samsung series of lawsuits is noteworthy for two reasons. First, the decision is instructive regarding the eDiscovery burdens that non-parties must shoulder in litigation. While the disclosure of a non-party’s underlying search methodology (in this instance, search terms and custodians) may not be unduly burdensome, further efforts to obtain non-party documents could exceed the boundaries of reasonableness that courts have designed to protect non-parties from the vicissitudes of discovery. For as the court in this case observed, a non-party “should not be required to ‘subsidize’ litigation to which it is not a party.”

Second, the decision illustrates that the use of search terms remains a viable method for searching and producing responsive ESI. Despite the increasing popularity of predictive coding technology, it is noteworthy that neither the court nor Apple took issue with Google’s use of search terms in connection with its production process. Indeed, the intelligent use of keyword searches is still an acceptable eDiscovery approach for most courts, particularly where the parties agree on the terms. That other forms of technology assisted review, such as predictive coding, could arguably be more efficient and cost effective in identifying responsive documents does not impugn the use of keyword searches in eDiscovery. Only time will tell whether the use of keyword searches as the primary means for responding to document requests will give way to more flexible approaches that include the use of multiple technology tools.

Much of the writing in the eDiscovery community focuses on the consequences of a party failing to adequately accomplish one of the nine boxes of the Electronic Discovery Reference Model. Breaking news posts frequently report on how spoliation and sanctions are typically issued for failure to suspend auto-deletion or to properly circulate a written litigation hold notices. This begs the question, aside from becoming perfectly adept in all nine boxes of the EDRM, how else can an organization protect themselves from discovery wars and sanctions?

One way is explore the possibilities Alternative Dispute Resolution (ADR) has to offer. While there is no substitute for the proper implementation of information governance processes, technology, and the people who manage them; there are alternative and creative ways to minimize exposure. This is not to say that ESI is less discoverable in ADR, but it is to say with the proper agreements in place, the way ESI is handled in the event of a dispute can be addressed proactively.  That is because although parties are free to use the Federal Rules of Civil Procedure in ADR proceedings, they are not constricted by them. In other words, ADR proceedings can provide parties with the flexibility to negotiate and tailor their own discovery rules to address the specific matter and issues at hand.

Arbitration is a practical and preferred way to resolve disputes because it is quick, relatively inexpensive and commonly binding. With enough foresight, parties can preemptively limit the scope of discovery in their agreements to ensure the just and speedy resolution of a matter. Practitioners who are well versed in electronic discovery will be the best positioned to counsel clients in the formation of their agreements upfront, obviating protracted discovery. While a similar type of agreement can be reached and protection can be achieved with the Meet and Confer Conference in civil litigation, ADR offers a more private forum giving the parties more contractual power and less unwanted surprises.

For example, JAMS includes this phrase in one of their model recommendations:

JAMS recognizes that there is significant potential for dealing with time and other limitations on discovery in the arbitration clauses of commercial contracts. An advantage of such drafting is that it is much easier for parties to agree on such limitations before a dispute has arisen. A drawback, however, is the difficulty of rationally providing for how best to arbitrate a dispute that has not yet surfaced. Thus, the use of such clauses may be most productive in circumstances in which parties have a good idea from the outset as to the nature and scope of disputes that might thereafter arise.

Thus, arbitration is an attractive option for symmetrical litigation where the merits of the case are high stakes and neither party wants to delve into a discovery war. A fair amount of early case assessment would be necessary as well, so parties have a full appreciation about what they are agreeing to include or not include in the way of ESI.  Absent a provision to use specific rules (American Arbitration Association or Federal Arbitration Act), the agreement between parties is the determining factor as to how extensive the scope of discovery will be.

In Mitsubishi Motors v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625 (1985), the U.S. Supreme Court has explained that the “liberal federal policy favoring arbitration agreements’…is at bottom a policy guaranteeing the enforcement of private contractual agreements. As such, assuming an equal bargaining position or, at least an informed judgment, courts will enforce stipulations regarding discovery, given the policy of enforcing arbitration agreements by their terms.” Please also see an excellent explanation of Discovery in Arbitration by Joseph L. Forstadt for more information.

Cooperation amongst litigants in discovery has long been a principle of the revered Sedona Conference. ADR practitioners facing complex discovery questions are looking to Sedona’s Cooperation Proclamation for guidance with an eye toward negotiation by educating themselves on ways to further minimize distractions and costs in discovery.  An example of one such event is at The Center for Negotiation and Dispute Resolution at UC Hastings, where they are conducting a mock Meet and Confer on May 16, 2013. The event highlights the need for all practitioners, whether it be the 26 (f) conference for litigation or the preliminary hearing in the case of arbitration, to assess electronic discovery issues with the same weight they do claims and damages early on in the dispute.

It is also very important that arbitrators, especially given the power they have over a matter, to understand the consequences of their rulings. Discovery is typically under the sole control of the arbitrator in a dispute, and only in very select circumstances can relief be granted by the court. An arbitrator that knows nothing about eDiscovery could miss something material and affect the entire outcome adversely. For parties that have identified and addressed these issues proactively, there is more protection and certainty in arbitration. Typically, the primary focus of an arbitrator is enforcing the contract between parties, not to be an eDiscovery expert.

It is also important to caution against revoking rights to discovery by entering into mutual agreements to unreasonably limit discovery.  This approach is somewhat reminiscent of the days when lawyers would agree not to conduct discovery, because neither knew how. Now, while efficiency and cost savings are a priority, we must guard against a potential similar paradigm emerging as we may know too much about how to shield relevant ESI.

As we look to the future, especially for serial litigants, one can imagine a perfect world in arbitration for predictive coding. In the Federal courts, we have seen over the past two years or so an emergence of the use of predictive coding technologies. However, even when the parties agree, which they don’t always, they still struggle with achieving a meeting of the minds on the protocol. These disputes have at times overshadowed the advantage of using predictive coding because discovery disputes and attorney’s fees have overtaken any savings. In ADR there is a real opportunity for similarly situated parties to agree via contract, upfront on tools, methodologies and scope. Once these contracts are in place, both parties are bound to the same rules and a just and speedy resolution of a matter can take place.

The 7^th 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 7^th 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

Data privacy is an issue that has only recently come to the forefront for many U.S. organizations and their counsel. Despite this generalization, there are some U.S. lawyers who have been specializing in this area for years. One of foremost experts in this field is Christopher Wolf, a partner with the international law firm of Hogan Lovells. Chris, who leads Hogan Lovells’ Privacy and Information Management practice group, has focused the last 15 years of his practice on data privacy issues. He also recently co-authored an industry leading white paper on the data privacy implications of the 2001 USA PATRIOT Act (Patriot Act). I recently had a chance to visit with Chris at the Privacy-Protected Data Conference about his practice and his work on the Patriot Act white paper.

1. What made you transition into data privacy after 20 years as a litigation attorney?

I had the good fortune of handling a pro bono privacy litigation in the late 90s that opened the door to the world of privacy law for me.   I represented a gay sailor who was threatened with discharge under the Navy’s Don’t Ask Don’t Tell Policy when a Navy investigator used false pretenses to illegally obtain personal information about the sailor from his Internet Service Provider.  I was successful in obtaining an injunction against his discharge and a ruling that the Navy violated the Electronic Communications Privacy Act.  News of that case led to a paying client hiring me for privacy work.  And I was hooked!  I then created the first Practising Law Institute treatise on Privacy Law, and got involved in public policy discussions about privacy.  Through my law practice and think tank, The Future of Privacy Forum, I have tried to advance the causes of responsible and transparent data practices that respect individual privacy and comply with the law.

2. What drove you to develop the Patriot Act white paper?

We had observed a trend of misinformation being propagated out of some countries, most notably in Europe, that invoked the Patriot Act as a kind of shorthand to imply that the U.S. government is alone in permitting governmental access to data stored in the cloud for law enforcement or national security purposes.  This misinformation had become so ingrained that it often was parroted without any basis and cited to support the offering of “national clouds” as a “safer” alternative to U.S.-based cloud service providers, who were painted as indiscriminately handing cloud data over to the U.S. government.  Our white paper examined the laws of ten major countries, including the United States, to demonstrate that these concerns were without basis.

3. Vis-à-vis the laws of other nations such as Germany, Canada and others identified in the white paper, does the Patriot Act provide the U.S. government with greater access to data stored with cloud service providers?

When we compared the investigative methods available in the U.S. to each of the other nine jurisdictions we examined, we learned two important things.  First, every jurisdiction vested authority in the government to require a cloud service provider to disclose customer data, with almost all granting the ability to request data stored on foreign servers under the service provider’s control.  Second, in jurisdictions outside the U.S., there is a real potential of data relating to a person stored in the cloud being disclosed to governmental authorities voluntarily, without legal process and protections (the only exception being Japan which, like the U.S., requires the government to use legal process to obtain data from cloud service providers).  Ultimately, we concluded that people are misleading themselves if they believe that restricting cloud service providers to one jurisdiction better insulates data from governmental access.

4. What are some of the other prevailing myths regarding the powers granted to the U.S. Government by the Patriot Act?

Notice that in my previous response, I didn’t reference the Patriot Act.  That is because most of the investigatory methods in the Patriot Act were available long before it was enacted, and the laws governing governmental access to data primarily are located in other U.S. laws.  It is more accurate to say that the Patriot Act did not create broad new investigatory powers but, rather, expanded existing investigative methods.  And despite this expansion, the U.S. government’s exercise of its authority under the Patriot Act is still limited by constitutional and statutory controls.  For example, in the past few years there have been some successful court challenges to the U.S. government’s use of the Patriot Act when the government has overstepped its bounds.

5. Are you planning a sequel or other follow up materials to the white paper?

We are currently considering similar projects to dispel similar misinformation, such as by discussing the ability of non-U.S. citizens to contest the U.S. government’s collection and use of their data, and by demonstrating that it is lawful and safe for European companies to transfer data to U.S.-based cloud providers that are certified to the U.S.-EU Safe Harbor.  Stay tuned.

6. Putting more of a human face on your work, what has been one of the most meaningful aspects of your practice?

It always has been important to me to have a steady pro bono docket.  Currently, I am national chair of the Civil Rights Committee of the Anti-Defamation League. In addition, it is gratifying to work in the area of privacy and information management law where clients really do want to do the right thing when it comes to protection information, and I enjoy helping them do that!

Thank you, Chris. We wish you the best in your practice.

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 29^th.  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.

The patent infringement litigation involving chipmaker Rambus took another twist this week as the court in Micron Technology v. Rambus declared several Rambus patents to be unenforceable as an eDiscovery sanction for its destruction of evidence. In a crushing blow to Rambus’ dynamic random access memory (DRAM) chips litigation strategy, the court reasoned that such a “dispositive sanction” was the only remedy that could address the chipmaker’s “bad faith” spoliation of email backup tapes, paper documents and other ESI.

At the heart of the Micron court’s sanctions order was its finding that Rambus implemented its information retention policy in bad faith. While acknowledging that retention policies may be “employed for legitimate business reasons such as general house-keeping,” the court found that the policies at issue were designed to deprive the chipmaker’s litigation adversaries of evidence that could impugn its patents. Furthermore, Rambus deviated from its policies to ensure that evidence favorable to its claims would be preserved. For example, after ordering the destruction of 1,270 email back-up tapes pursuant to its retention schedule, the chipmaker intervened to save a lone back-up tape after determining that “it contained data that could be used … to establish a conception date for an invention.” Such selective use of its retention policies belied Rambus’ contention that the policies were neutral and conclusively showed that the policies were tactically deployed to “seek an advantage in litigation.”

While the Micron court’s sanctions order will likely set up another round of appeals before the Federal Circuit, the lesson to be learned by organizations is the importance of developing a reasonable information retention policy. Indeed, had Rambus followed good faith business procedures within the parameters recently delineated by the Federal Circuit, it is unlikely that the destruction would have been seen as spoliation. The Micron ruling should not affect the current judicial trend that absent a preservation duty or other exceptional circumstances, organizations may use document retention protocols to destroy stockpiles of data that have no meaningful business value.

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.

The reviews are in and movie critics are universally acclaiming Lincoln, the most recent Hollywood rendition regarding the sixteenth president of the United States. While viewers may or may not enjoy the movie, the focus on Abraham Lincoln brings to mind a rather key insight for organizations seeking to strengthen their defensible deletion process.

Lincoln has long been admired for his astute handling of the U.S. Civil War and for his inventive genius (he remains the only U.S. President who patented an invention). Nevertheless, it is Lincoln’s magnanimous, yet shrewd treatment of his rivals that provides the key lesson for organizations today. With a strategy that inexplicably escapes many organizations, Lincoln intelligently organized his documents and other materials so that he could timely retrieve them to help keep his political enemies in check.

This strategy was particularly successful with his Secretary of the Treasury, Salmon Chase, who constantly undermined Lincoln in an effort to bolster his own presidential aspirations. To blunt the effect of Chase’s treachery, Lincoln successfully wielded the weapon of information: Chase’s letters to Lincoln that were filled with problematic admissions. Doris Kearns Goodwin chronicled in her Pulitzer Prize winning book, Team of Rivals, how Lincoln always seemed to access that information at a moment’s notice to save him from Chase’s duplicity.

Lincoln’s tactics reinforce the value of retaining and retrieving important information in a time of need. Lacking the organizational and technological capacity to do so may prevent companies from pulling up information at a crucial moment, be it for business, legal or regulatory purposes. For this and many other reasons, industry experts are recommending that organizations implement a defensible deletion strategy.

Defensible Deletion Requires Deletion                    

Such a strategy could have some success if it is powered by the latest in effective retention technologies such as data classification and automated legal hold. Such innovations will better enable organizations to segregate and preserve business critical ESI.

And yet, it is not enough to just adopt the preservation side of this strategy, for the heart of defensible deletion requires just that – deleting large classes of superfluous, duplicative and harmful data – if its benefits are ever to be realized. Companies that fail to delete such ESI will likely never come off conqueror in the “battle of the data bulge.” Indeed, such a growing waistline of data is problematic for three reasons. First, it can place undue pressure on an organization’s storage infrastructure and needlessly increase the cost of data retention. It can also result in higher eDiscovery costs as the organization is forced to review and analyze all of that ESI largesse. Finally, a potentially fatal risk of producing harmful materials – kept beyond the time required by law – in eDiscovery will unnecessarily increase. All of which could have been obviated had the enterprise observed the rule of “good corporate housekeeping” by eliminating ESI in a manner approved by courts and the rules makers.

For organizations willing to get rid of their digital clutter, defensible deletion offers just what they need so as to reduce the costs and risks of bloated ESI retention. Doing so will help companies make better use that information so, like Honest Abe, they can stave off troublesome challenges threatening the enterprise.

New technologies are being repurposed for Early Case Assessment (ECA) in this ever-changing global economy chockfull of intellectual property theft and cybertheft. These increasingly hot issues are now compelling lawyers to become savvier about how the technologies they use to identify IP theft and related issues in eDiscovery. One of the more useful, but often overlooked tools in this regard is Data Loss Prevention (DLP) technology. Traditionally a data breach and security tool, DLP has emerged as yet another tool in the Litigator’s Tool Belt™ that can be applied in eDiscovery.

DLP technology utilizes Vector Machine Learning (VML) to detect intellectual property, such as product designs, source code and trademarked language that are deemed proprietary and confidential. This technology eliminates the need for developing laborious keyword-based policies or fingerprinting documents. While a corporation can certainly customize these policies, there are off the shelf materials that make the technology easy to deploy.

An exemplary use case that spotlights how DLP could have been deployed in the eDiscovery context is the case of E.I. Du Pont de Nemours v. Kolon Industries. In DuPont, a jury issued a $919 million verdict after finding that the defendant manufacturer stole critical elements of the formula for Kevlar, a closely guarded and highly profitable DuPont trade secret. Despite the measures that were taken to protect the trade secret, a former DuPont consultant successfully copied key information relating to Kevlar on to a CD that was later disseminated to the manufacturer’s executives. All of this came to light in the recently unsealed criminal indictments the U.S. Department of Justice obtained against the manufacturer and several of its executives.

Perhaps all of this could have been avoided had a DLP tool been deployed. A properly implemented DLP solution in the DuPont case might have detected the misappropriation that occurred and perhaps prompted an internal investigation. At the very least, DLP could possibly have mitigated the harmful effects of the trade secret theft. DLP technology could potentially have detected the departure/copying of proprietary information and any other suspicious behavior regarding sensitive IP.

As the DuPont case teaches, DLP can be utilized to detect IP theft and data breaches. In addition, it can act as an early case assessment (ECA) tool for lawyers in both civil and criminal actions. With data breaches, where there is smoke (breach) there is generally fire (litigation). A DLP incident report can be used as a basis for an investigation, and essentially reverse engineer the ECA process with hard evidence underlying the data breach. Thus, instead of beginning an investigation with a hunch or tangential lead, DLP gives hard facts to lawyers, and ultimately serves as a roadmap for effective legal hold implementation for the communications of custodians. Instead of discovering data breaches during the discovery process, DLP allows lawyers to start with this information, making the entire matter more efficient and targeted.

From an information governance point of view, DLP also has a relationship with the left proactive side of the Electronic Discovery Reference Model. The DLP technology can also be repurposed as Data Classification Services for automated document retention. The policy and technology combination of DCS/DLP speak to each other in harmony to accomplish appropriate document retention as well as breach prevention and notification. It follows that there would be similar identifiers for both policy consoles in DCS/DLP, and that these indicators enable the technology to make intelligent decisions.

Given this backdrop, it behooves both firm lawyers and corporate counsel to consider getting up to speed on the capabilities of DLP tools. The benefits DLP offers in eDiscovery are too important to be ignored.