e-discovery 2.0

In the eDiscovery universe, hot trends and evolving technologies tend to capture the attention of the legal community.  Discoverable data sources have been the focus in the courtroom for quite some time, and just like the “popular kids” from high school, email has held the crown of eDiscovery darling.  Not surprisingly, the more time end-users spend in a specific medium (on Facebook, for example), the more likely data will be created – and as that data multiplies, it has the potential to become compelling in discovery.  It seems that many U.S. organizations are electing to allow social media use at work and for work, rather than blocking access.  For obvious reasons, granting this access is culturally desirable, but from an eDiscovery perspective social media use introduces new complications.  However, don’t be mystified.  There is nothing that new here.

Recently, Symantec issued the findings of its second annual Information Retention and eDiscovery Survey, which examined how enterprises are coping with the tsunami of electronically stored information.  Having lost some popularity, email came in third place (58%) to files/documents (67%) and database/application data (61%) when respondents were asked what type of documents were most commonly part of an eDiscovery request.  The new kid on the block for data sources is social media, reported by 41% of those surveyed.  Social media is in essence no different than any other data type in the eDiscovery process, it’s just the newest.  Said another way; social media is the new email.

Of course, it’s no longer news to proclaim that communications from social networking sites are discoverable.  What is newsworthy is the question of how to effectively store, manage and discover these communications which come in such varying forms, making the logistics of doing so for social media different than for traditional mediums.  Like email, social media is used by everyone (ubiquitous), is viral (fast), has mixed uses (professional and personal) and there is a lot of it (high volume).  Unlike email, social media comes in many different forms (Facebook, LinkedIn, Twitter, etc.), is not controlled within an organization’s firewalls (custody, possession and control issues), and has more complex requirements within the information governance lifecycle (technology is needed to ingest social media into an archive).

The two main areas to examine in relation to social media use and an organization’s policies are: 1) the legal issues that apply specifically to the organization, and 2) the logistical and technical requirements for preservation and collection.  Essentially, what is the organization’s policy surrounding social media use, and how can the information be accessed if need be? Luckily, technology exists that is nimble enough to be able to ingest social media and archive it in accordance with an organization’s policy, should one exist.  Organizations that have recognized social media as the newest kid on the block have, ideally: developed a social media policy, purchased (or deployed) collection and retention technology, and instituted training for their employees.  They have also integrated social media into their information governance strategy and document retention policy. Remember, not all organizations will have to archive social media, but all should address social media with a policy and training.

Other organizations have not accepted social media as part of the evolutionary process of eDiscovery.  They proceed at their own peril – as did the organizations that did not control their email some ten years ago!

These organizations will be in crisis when they need to collect social media for litigation and will most likely have a large lesson in damage control, as well as an equally large bill.  They will be uneducated, ill-prepared and overwhelmed about how to discover social media.  Without a policy, they will have to over collect by default, which will drive up the costs for collection and possibly for downstream review.  Given that the aforementioned survey found nearly half of the respondents did not have an information retention policy in place, and of this group, only 30% were discussing how to do so, it is likely that many of these organizations do not yet have a social media policy either.

With this background in mind, organizations should evaluate which laws and regulations apply to their organization, develop a policy and train their employees on that policy.  Plus ça change, plus c’est la même chose.

For more information about how IT and Legal can manage the impact of social media on their organization and to learn how archiving social media can be accomplished, please join this webcast from Symantec.

Symantec today issued the findings of its second annual Information Retention and eDiscovery Survey, which examined how enterprises are coping with the tsunami of electronically stored information (ESI) that we see expanding by the minute.  Perhaps counter intuitively, the survey of legal and IT personnel at 2,000 enterprises found that email is no longer the primary source of ESI companies produced in response to eDiscovery requests.  In fact, email came in third place (58%) to files/documents (67%) and database/application data (61%).  Marking a departure from the landscape as recently as a few years ago, the survey reveals that email does not axiomatically equal eDiscovery any longer.

Some may react incredulously to these results. For instance, noted eDiscovery expert Ralph Losey continues to stress the paramount importance of email: “In the world of employment litigation it is all about email and attachments and other informal communications. That is not to say databases aren’t also sometimes important. They can be, especially in class actions. But, the focus of eDiscovery remains squarely on email.”   While it’s hard to argue with Ralph, the real takeaway should be less about the relative descent of email’s importance, and more about the ascendency of other data types (including social media), which now have an unquestioned seat at the table.

The primary ramification is that organizations need to prepare for eDiscovery and governmental inquires by casting a wider ESI net, including social media, cloud data, instant messaging and structured data systems.  Forward-thinking companies should map out where all ESI resides company-wide so that these important sources do not go unrecognized.  Once these sources of potentially responsive ESI are accounted for, the right eDiscovery tools need to be deployed so that these disparate types of ESI can be defensibly collected and processed for review in a singular, efficient and auditable environment.

The survey also found that companies which employ best practices such as implementing information retention plans, automating the enforcement of legal holds and leveraging archiving tools instead of relying on backups, fare dramatically better when it comes to responding to eDiscovery requests. Companies in the survey with good information governance hygiene were:

• 81% more likely to have a formal retention plan in place
• 63% more likely to automate legal holds
• 50% more likely to use a formal archiving tool

These top-tier companies in the survey were able to respond much faster and more successfully to an eDiscovery request, often suffering fewer negative consequences:

• 78% less likely to be sanctioned
• 47% less likely to lead to a compromised legal position
• 45% less likely to disclose too much information

This last bullet (disclosing too much information) has a number of negative ramifications beyond just giving the opposition more ammo than is strictly necessary.  Since much of the eDiscovery process is volume-based, particularly the eyes-on review component, every extra gigabyte of produced information costs the organization in both seen and unseen ways.  Some have estimated that it costs between $3-5 a document for manual attorney review – and at 50,000 pages to a gigabyte, these data-related expenses can really add up quickly.

On the other side of the coin, there were those companies with bad information governance hygiene.  While this isn’t terribly surprising, it is shocking to see how many entities fail to connect the dots between information governance and risk reduction.  Despite the numerous risks, the survey found nearly half of the respondents did not have an information retention plan in place, and of this group, only 30% were discussing how to do so.  Most shockingly, 14% appear to be ostriches with their heads in the sand and have no plans to implement any retention plan whatsoever.  When asked why folks weren’t taking action, respondents indicated lack of need (41%), too costly (38%), nobody has been chartered with that responsibility (27%), don’t have time (26%) and lack of expertise (21%) as top reasons.  While I get the cost issue, particularly in these tough economic times, it’s bewildering to think that so many companies feel immune from the requirements of having even a basic retention plan.

As the saying goes, “You don’t need to be a weatherman to tell which way the wind blows.”  And, the winds of change are upon us.  Treating eDiscovery as a repeatable business process isn’t a Herculean task, but it is one that cannot be accomplished without good information governance hygiene and the profound recognition that email isn’t the only game in town.

For more information regarding good records management hygiene, check out this informative video blog and Contoural article.

We’ve all heard the phrase that “everything is bigger in Texas” and the little “mini-conference” held in Dallas, TX last Friday was no exception.  The Discovery Subcommittee held a small, one-day conference to tackle some big issues related to preservation and sanctions that could ultimately lead to amendments to the Federal Rules of Civil Procedure (Rules).

The Subcommittee’s primary purpose was to discuss “preservation and sanctions issues” by using the following topics as guidelines:

• The nature and scope of the current “problem”
• The role of technology
• Possible solutions to the problem

Counsel from large companies like Google, General Electric, and Exxon Mobil participated side by side with outside counsel from both plaintiffs’ and defense bar to discuss what some characterized as a lack of clear direction in the current Rules.  Government lawyers, academics, and federal judges including Judges David Campbell (D. Az.), Shira Scheindlin (S.D.N.Y.), Paul Grimm (D. Md.), John Facciola (D.D.C.), Lee Rosenthal (S.D. Tx.), Michael Mosman (D. Ore.), and Nan Nolan (N. D. Ill.) helped round out the field to make for a lively discussion with multiple perspectives represented.  The following summary highlights some of the key viewpoints and areas of contention debated throughout the day.[1]

The nature and scope of the problem

An underlying theme throughout the day was whether or not preservation and sanctions challenges warrant amending the Rules.  Not surprisingly, counsel for large organizations that commonly bear the brunt of large and frequent document requests lobbied for rule amendments that provide more certainty around when the duty to preserve evidence is triggered, the scope of that duty, and how sanctions are applied.

In support of this position, some corporate attorneys argued that the lack of certainty in the current Rules unfairly requires organizations to err on the side of preserving evidence early and broadly to avoid the risk of sanctions.  Since preserving evidence can be extremely expensive and the duty may be triggered before litigation even begins, they argue that changes to the Rules are necessary.  One corporate attorney framed the issue by providing specific details about costs associated with preserving data for different cases.  He explained that in one situation, his organization has spent more than $5 million to locate, collect, preserve, and maintain data for an ongoing matter even though a complaint has never been filed.  He went on to explain the dilemma by stating: “not preserving asks us to take a chance with our reputation.”

In response, a few attendees questioned how preservation related expenses could spiral so high even before attorney review.  Others pointed out that if the current Rules were better utilized, specifically the meet-and-confer provisions of Rule 26(f), then many preservation challenges could be minimized.  Supporters of better Rule 26(f) engagement complained that counsel for large organizations often refuse to discuss preservation related issues and thereby fuel problems related to the scope of preservation themselves.   Others suggested that if organizations enforced better information management policies instead of keeping “everything forever”, then the magnitude of the problem could be reduced.

Technology

The Subcommittee members generally agreed that the evolution of technology has led to massive data growth which creates new electronic data challenges.  Electronically stored information (ESI) is often duplicative, typically resides in many different technology systems, and can be difficult to locate on a case by case basis.  There was some thoughtful discussion about how data archiving and cloud computing technology are important tools for helping organizations manage these information problems more effectively.  Another commentator acknowledged that although “predictive coding” may be helpful for “reviewing” data, it requires significant human involvement and simply does not solve the problem at hand.

Surprisingly, aside from the comments above, the technology discussion focused mainly on the issue of what constitutes “possession, custody or control” under Rule 34 in today’s environment of social media, cloud computing, and mobile devices.  Unfortunately, there was no discussion of either the role legal technology solutions play in minimizing risk and cost or of the impact the current Rules have on public policy.  For example, the Subcommittee did not address whether organizations that invest in technology in order to automate their internal data management and electronic discovery process should be afforded more protection under Rule 26(b)(2)(B) (“not reasonably accessible because of undue burden or cost”) than organizations that choose not to invest in technology.  If an organization’s technology investment (or lack thereof) is not a factor, does Rule 26(b)(2)(B) have the unintended effect of stifling meaningful legal technology investment by some organizations?  Similarly, do advancements in legal technology diminish the need for a Rule amendment that, at its core, is geared toward reducing costs?  In my opinion, the manner in which organizations are using technology today is an important factor that warrants deeper discussion and a subject I intend to address in a future publication soon.  Stay tuned.

Possible solutions

Discussion about possible solutions to the problem revealed more about the contrasting viewpoints in the room.  Notably, the Department of Justice representatives and those typically aligned with the plaintiffs’ bar tended to lobby for better adherence to the framework contained in the existing Rules in lieu of drafting new Rules.  These folks generally appeared to fall into the “No New Rule” or “Not Yet” camp, and cited the relative newness of the 2006 Rule Amendments and the fact that only about one percent of federal cases involve sanctions in support of their position that Rule amendments are premature or not needed.  Along the same lines, many called for further study and evaluation of the issues through organizations such as The Sedona Conference and the 7th Circuit Electronic Discovery Pilot Program.  Others referenced the importance of looking to evolving case law for more guidance before moving forward with Rule amendments.

In stark contrast, those on the other side of the aisle that typically represent large organizations, lobbied for bright line rules or at least “guideposts” to provide more certainty regarding preservation.  For example, one participant suggested that the duty to preserve evidence should begin when a complaint is served.  Another suggested that the duty should be triggered when a potential litigant is “reasonably certain to be a party to litigation” – a standard that is arguably narrower than the commonly applied “reasonably anticipates litigation” standard articulated in Judge Scheindlin’s frequently cited Zubulake v. UBS Warburg line of decisions.

Those calling for more certainty regarding triggering events also provided recommendations for addressing the scope of the preservation duty and the application of sanctions.  A suggestion to incorporate language that presumptively limits the number of custodians (10) and documents (by age) met resistance on the grounds that trying to apply a one-size-fits-all rule fails to acknowledge that the facts and circumstances of every case are different and so too are the litigants.  Similarly, recommendations to limit sanctions for evidence spoliation to situations where a litigant’s conduct is “intentional” or “willful” were met with a chilly reception by those favoring better adherence to the current Rules.

Conclusion

Time did not permit comprehensive discussion and analysis of every perspective, but the mini-conference highlighted the complexity surrounding preservation and sanctions issues and revealed some polarized viewpoints about how to solve those issues.  Perhaps one glimmer of consensus was the acknowledgement that “pre-litigation” obligations to preserve evidence before service of a complaint is often challenging for large organizations.  However, whether this and other issues should be addressed through better education, more stringent enforcement of existing rules, or by modifying the existing rules to include more “guideposts” remains unsettled.

What do you think?  Please respond to the poll, above right, to let us know whether you think amending the Federal Rules of Civil Procedure (FRCP) is necessary to address some of the preservation and sanctions issues discussed above.

To join the conversation and receive automatic updates when new information is posted to this blog, please subscribe to e-discovery 2.0.

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[1] A more exhaustive list of participants and sample questions was incorporated into the Federal Rules Advisory Committee’s June 29, 2011 memorandum announcing the mini-conference.  Similarly, the events leading up to the mini-conference are described in more detail as part of my previous postings on the same subject.

Is your organization among those that have jumped with both feet into the world of social media?

Recent survey results confirm that social media use is on the rise for almost all organizations across the globe.  This is particularly the case in the financial services industry.  A recent industry survey confirms that nearly two-thirds of all asset managers are actively using social media for marketing purposes.

Despite its increasing popularity and ubiquity, the securities industry is experiencing growing pains with social media.  Just like other industries, financial services providers are struggling with applying notions of information governance to these non-traditional forms of communication.  Indeed, with social media becoming an increasingly important data source for both business and legal purposes, it behooves enterprises to develop an information governance strategy with respect to this data.  The best practices being followed in this regard by financial services companies should be paradigmatic for organizations across the board.

Social Media Challenges for Financial Services Companies

Many financial services companies are experiencing difficulty supervising or retaining social media communications as required by FINRA Regulatory Notice 10-06.  A landmark regulation, FINRA 10-06 was promulgated last year to protect investors from false or misleading claims made on social networking sites.  To comply with this regulation, securities firms must develop protocols that enable them to supervise and retain social media content and ensure conformity by their representatives.

It is no secret that social media communications continue to bedevil securities firms.  Indeed, 63% of surveyed asset managers reported that “regulatory recordkeeping” remains their greatest challenge with respect to social media.  And as more firms move toward social media marketing, the number of financial services companies experiencing difficulty with retention is also likely to increase.

The challenges firms are experiencing with social media are not limited to retention.  They also include the need to properly supervise social media communications.  This was acknowledged by FINRA chairman and chief executive Richard Ketchum at an industry event this past June.  Among other social media issues, Ketchum explained that firms have questioned how they can most effectively supervise their employees’ use of smart phones and tablet computers that can access company sites.  In response to these matters, FINRA just issued Regulatory Notice 11-39 to help clarify several lingering questions regarding retention and supervision.

Best Practices for Addressing the Challenges of Social Media

Given the complexity of these issues, regulated enterprises need to know what best practices can be followed to ensure compliance with pertinent FINRA and SEC regulations.  While there are perhaps many steps that could be implemented, three stand out as indispensable for firms.

The first is that firms should develop a global plan for how they will engage in social media marketing.  This initial step is particularly important for groups that are just now exploring the use of social media to communicate with investors.  Having a plan in place that maps out investor contact and communication strategy, provides for required supervision of firm representatives, and accounts for compliance with regulatory requirements is essential for securities firms.  Failing to take these steps could result in fines, suspensions or worse.

The next step involves educating and training employees regarding the firm’s social media plan.  This should include instruction regarding what content may be posted to social networking sites and the internal process for doing so.  Policies that describe the consequences for deviating from the firm’s social media plan should also be clearly delineated.  Those policies should detail the legal repercussions – civil and criminal – for both the employee and the firm for social media missteps.

Third, firms can employ technology to ensure compliance with their social media plan.  Indeed, FINRA 10-06 specifically emphasizes the importance of deploying technological “systems” to facilitate conformity with the regulation’s “Recordkeeping Responsibilities” requirement.  Those “systems” include archiving software and other technology tools.  With the right tools in place, firms can perform a cost-effective supervisory review of content to help ensure compliance with corporate policy and regulatory bodies.  Moreover, an effective “system” will implement legal holds and efficiently retrieve archived social media content in response to legal and regulatory requests.  All of this enables a company to establish the reasonableness of its retention and eDiscovery processes and demonstrate compliance with relevant SEC and FINRA regulations.

By following these steps and other best practices, financial services companies can begin to reasonably address the challenges of social media.  Knowing that those challenges are being dealt with in an effective manner will enable firms to confidently engage in social media marketing – and reap the financial benefits of doing so.

What’s next in the electronic discovery world?  Well, it’s nearly impossible to say with too much precision, but my recent e-discovery trends article attempts to peer into the crystal ball to divine some hints about the future.

The following five predictions are what I expect to create the biggest waves in e-discovery in 2011.  Most are nascent trends that we’ve seen a bit of in 2010, but that should continue to accelerate next year.  Enterprises that can prepare for and understand these areas will be well equipped to continue taking a proactive approach to the ever-changing challenges of e-discovery.

1. Changes in Forensic Best Practices: In 2011, manual forensic imaging will continue to take a backseat to more automated, forensically sound data collection techniques.  Forensic (bit for bit) images have long been the gold standard for the legally sound collection of ESI in response to legal proceedings.  And, while forensic imaging will continue to be important in a number of discrete situations (fraud, misappropriation of trade secrets cases, etc.), it will largely be seen as overkill in basic electronic discovery cases.  Since imaging is both time consuming and highly manual, automated collection tools will increasingly be used by savvy organizations to speed up and streamline the collection process.
2. Consolidation in the Electronic Discovery Industry: Consolidation in the electronic discovery sector will impact market forces and the balance of power.  The past year saw traditional, pure-play electronic discovery companies looking (sometimes successfully and sometimes not) for diversification and deep pockets.  In the upcoming year, the relative dearth of pure play EDD companies may reverse the downward price pressure that’s been seen over the past several years.
3. Proportionality Becomes Reality: Burgeoning data volumes, as seen in multi-terabyte (versus gigabyte) cases, means that the legal community will continue to search for ways to prevent electronic discovery costs from exceeding legal exposure and attorneys fees.  Groups like The Sedona Conference will continue to push for better clarification within the community surrounding “proportionality” in order to keep the electronic discovery “tail” from wagging the litigation “dog.”  If successful at all, there may be a slight respite for litigious enterprises that may be able to better scale e-discovery efforts with the risk profile of the matter at hand.
4. Collision of Cloud, Social Media and E-Discovery: The seemingly unstoppable migration of corporate data to the cloud, combined with the proliferation of social media applications, will continue to stress electronic discovery practitioners as they attempt to preserve, collect, search, and process electronically stored information (ESI) from sources that aren’t traditionally managed behind the firewall.  Proactive enterprises will increasingly evaluate the legal and compliance risks of storing data in the cloud so that they’re not painted into a corner when they need to preserve, collect, and produce offsite ESI.
5. Global E-Discovery Matures: International jurisdictions will increasingly look to the United States (and the Federal Rules of Civil Procedure) as their nascent electronic discovery paradigms are increasingly stressed by the proliferation of both ESI and discovery disputes.  The recent Goodale case out of the UK (and impending procedural changes to the e-Disclosure Practice Direction) demonstrates how the global community is rapidly maturing along the electronic discovery continuum.

While the tools and best practices designed to combat top ediscovery hurdles continue to mature, the challenges are multiplying at any equally fast rate.  In the past, the crux of most discovery matters usually centered around email and sometimes instant messaging.  In 2011, new problems will continue to crop up on the horizon, such as collecting SharePoint data from the cloud, trying to extract structured data from a range of proprietary systems and capturing ephemeral ESI from an ever changing array of social media applications.

Please let me know if you disagree with any of the predictions or have any others you’d like to share.

Fulbright & Jaworski recently issued its “7^th Annual Litigation Trends Survey Report” and there were several interesting trends worth noting.   Not surprisingly, the general pace of litigation is forecast to increase upwards, relatively unabated, with more than 25% of respondents expecting their companies’ disputes to increase in the next 12 months.

Beyond this trend it’s clear that there’s also groundswell of support for a movement towards more e-discovery proportionality.  While also a big topic at Sedona’s annual conference (and discussed in the recent Moody case), a whopping 79% of US respondents think the “US Rules of Civil Procedure should be modified in some way to limit e-discovery in civil cases.”  While I haven’t heard of any specific proposals for a rules amendment, it’s clear that folks aren’t happy with the status quo, particularly with the increasing discovery burden facing enterprises dealing with unilateral disputes.   This discontent is likely tied to the fact that costs continue to escalate, with the survey indicating that more than 40% of the largest US companies (over $1B in Revenue) plan to “increase their spending on e-discovery in the next 12 months.”

Finally, the survey also focused on an area that’s getting an increasing level of scrutiny.   Fulbright asked “when preserving potentially relevant information in litigation or an investigation, what methods do you use most frequently for preserving electronically stored information?”  Leading the pack, with 55% of vote, was “rely on individual custodians to identify and preserve their own information.”  Custodian based collections have been discussed recently as being under fire in blogs and other recent cases such as Pension Committee and Ford Motor Co. v. Edgewood Properties Inc. The notion is that under- or un-supervised collection methodologies are dangerous because it’s relatively easy to paint the custodians at issue as either being motivated to hide responsive data or relatively unconcerned with compliance.  Nevertheless, it’s clear that (as of now) custodian-based collections are still somewhat “reasonable” given that more than 50% of the populous collects data this way.

On the other side of the spectrum from custodian based ESI collections, there are automated data collection tools and methods that can be considered too.  There are undoubtedly advantages (risk reduction, speed, audit trails, etc.)  to using “automated search software” for the collection of data (like 43% of the respondents did in the Fulbright survey).  Yet, it’s clear this isn’t a zero sum game – meaning there’s currently a place for both methodologies in the legal landscape.  For many organizations it becomes a risk management exercise as summarized in a recent  ARMA article entitled “Is ‘Manual’ Collection of ESI Defensible?”: “Companies may choose the manual collection of ESI to reduce costs, particularly if they have limited levels of litigation or lower risk levels posed by the litigation itself.”

In the end, like so many aspects of electronic discovery, almost any well thought out, well documented methodology *can* be defensible, but the onus is on the preserving/collecting party to buttress whatever poison they pick.  Defaulting into a method without preparation, auditing and follow-through is a recipe for disaster.

As the Mark Twain quote goes, there are “lies, damn lies and statistics.”  In this case, however, and regardless of the exact numbers, two recent surveys provide some very interesting directional trending.  The first is Fulbright & Jaworski’s 6^th Annual Litigation Trends Survey.  In addition to covering a range of general and vertically oriented topics, they also focus on ediscovery specifically.  Not surprisingly, reducing e-discovery costs bubbles up to the top of the list as major initiatives for most respondents.  Interestingly though, remediation plans attacking this problem seem to fall into two different camps.  On the one hand, 24% of respondents plan on outsourcing certain e-discovery tasks further leveraging preferred partners.  Conversely, the method that leads the pack (at a whopping 47%) is the corporate initiative of taking components of e-discovery in-house.  Other methods were listed, but most didn’t appear to have critical mass, including: using clawback agreements more, enforcing document retention policies, and negotiating with the opposition over the scope of discovery.

Similarly, Clearwell Systems recently conducted a survey in partnership with analyst firm Enterprise Strategy Group titled Trends in Electronic Discovery – A Market Perspective, which attempted to pinpoint similar pain points and solutions. The questions focused more on 2010 planning and they found a general expectation of more litigation/regulatory inquiries where 53% of the respondents expect the number of lawsuits and regulatory inquiries to increase by at least 20% in 2010, with 13% of respondents planning for an increase of 50 percent or more.  Again, not surprisingly, many plan on attacking this increase in litigation (and the corresponding e-discovery costs) by bring parts of the process in house.  In fact, 48% indicated that they currently have an active project to bring segments of the e-discovery process in-house. And for those that aren’t currently in the building process, 87% of respondents plan to budget for technology that specifically supports the electronic discovery process in 2010.

Given the length of time required for planning, RFPs and e-discovery tool procurement, clearly time is of the essence for companies that want to take advantage of internal solutions in the 2010 time frame.  Failure to get off the dime means that an enterprise is more likely to get caught in the middle of deliberation, versus deployment.

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