At no time in history have organizations been faced with the challenge of processing as much information as they are today. Advancements in information technology have allowed companies to manage all this data more efficiently, but as the volume of archived infor mation continues to increase, so does the difficulty of sorting through files and documents to isolate specific data relevant to ongoing discovery and litigation.
Corporations and law firms are growing increasingly concerned about the cost of electronic data discovery and are seeking methods of streamlining the process. Specifically, they are investigating approaches that efficiently distill vast quantities of data and enable easy access to information germane to their purposes.
The stored information, which often serves as a “forensic fingerprint,” has proven to be a double-edged sword for those in the legal profession. On the one hand, the availability of these materials can assist counsel in uncovering vital evidence to prove or disprove an accusation. On the other hand, these archived records offer the same benefits to opposing counsel.
It is therefore vital that counsel have access to every piece of information that might tip the balance during litigation. And this means using discovery to assess the potential impact of countless e-mails, memos, spreadsheets, and presentations by all parties involved.
It’s a daunting task, and the process of uncovering and evaluating all this data is time-consuming and expensive. Many corporations have thousands and thousands of backup tapes and other media. In many cases, information technology staff are unable to readily identify what types of information are stored on which tapes. As a result, each tape must be restored and analyzed in an attempt to pinpoint pertinent material.
During discovery, for instance, a defendant may be asked to produce complete documentation about communications between the company’s chief executive officer and its chief financial officer regarding a specific transaction executed two years earlier. The company may confirm that the records are archived and available. But in order to provide them, it will need to restore all backup media for the time frame in question, because there is no way to isolate the specific documents.
Consider this actual situation: A firm with about 4,300 tapes in storage was being asked to produce three specific e-mail files associated with two employees. The company was able to pinpoint the appropriate individual mailboxes and the server where the mailboxes were located. But it was unable to identify which of the 4,300 tapes contained the backup files from that particular server. It would require many weeks and tens of thousands of dollars or more to restore all the tapes, review their contents, and uncover the responsive documents using traditional methods.
Cost Containment
Concerns about the expense associated with e-discovery activities like these are rising as rapidly as the quantity of information being stored electronically. The 2006 Socha-Gelbmann revealed that costs-and managing those costs-are among the most pressing issues facing users of e-discovery today.
The expenditures have become so onerous that some attorneys have asked the courts to excuse their clients from complying with certain discovery requests, citing burden of cost and claiming that the archived data cannot be considered reasonably accessible.
Because accessibility and cost issues are being raised more and more frequently during e-discovery, Rule 26(b)(2)(B) of the recently amended Federal Rules of Civil Procedure addresses this very issue. The rules changes require that parties seeking discovery of electronically stored data obtain a court order showing good cause, which will not be issued until the court assesses the requesting party’s need for the information in relation to the burden imposed on the responding party.
Inherent to this issue is understanding what is meant by “reasonably accessible” – which, unfortunately, is not clearly defined in the amendments. The rules-committee notes indicate, however, that reasonably accessible data typically include information used in the course of normal business activities.
This may or may not include disaster-recovery data (data set aside to be accessed only in case of a disaster such as complete system failure or the destruction of an office building due to weather, fire, or terrorism), legacy data (data stored from older systems such as mainframes or obsolete versions of current technology), or deleted data that the company attempted to destroy. Accessibility is determined based on how these types of data are archived and how they may be used.
A CEO, for instance, may lose or delete an important document. To restore it, she asks the information technology staff to recover the file from the disaster-recovery archive. Typically, disaster-recovery data is not discoverable because it is not used for normal business transactions. But the moment this category of data is accessed for convenience-not because of a true disaster-the status of the data is changed. The courts could then consider the files reasonably accessible and therefore open them to the discovery process.
Under the changed rules, arguments of inaccessibility and burden of cost are less likely to be successful. Companies probably will be expected to disclose their full backup catalogs and required to produce documents that previously may have been considered inaccessible.
New Technologies
Fortunately, new technologies are being developed to decrease the costs associated with these increased expectations during e-discovery. Some applications allow organizations to archive and search e-mails from live server environments. Other emerging software applications catalog backup media and enable file-level scans to pinpoint the location of documents that need to be restored. This allows corporations and law firms to be fully responsive while significantly reducing the scope of e-discovery projects, as extraneous information can be culled out and discounted.
Typically, these applications collect and catalog data from a wide range of environments-backup systems that house information on client-server hardware units called nodes; pools of tapes; sets of data, such as e-mail files, that are saved on a regular basis (in weekly backups, for example); and individual volumes of tapes, disks, or optical media.
In situations where a company relies on a backup server that is kept online at all times, the software interfaces directly with the server, and cataloging is performed on an ongoing basis. This type of software can also be used to create a catalog of tapes that have been backed up at an earlier point. This tape pool may have been archived, but no catalog was produced to facilitate the identification of specific files within the pool. A company or law firm can use these new software applications to catalog a client’s existing tape pool to more easily home in on responsive documents during discovery.
Once the tape pool has been cataloged, companies are able to centrally manage and track all active or retired tapes. When a discovery request is made, file-level scans supply the file names that exist on each tape, along with the server information and the backup session, to determine the relevance of each tape. Subsequently, a decision can be made about which items need to be restored.
A discovery request might demand, for instance, Microsoft Word documents (files that carry the .doc extension) created or reviewed by a specific executive (whose company is being sued for discriminatory practices) during a period ranging from January to March in a given year. Emerging software applications would be able to search all cataloged media, returning all .doc files and identifying which backup tapes contain the items in question. Using the date-range parameters, the software can also determine which tapes are not relevant to the investigation and need not be reviewed-thereby culling the tape pool and significantly reducing the scope of the discovery project.
In other words, once identified, the pertinent tapes are sent for restoration-and the thousands of tapes ascertained to be extraneous can be left in storage.
This type of application was used in the case concerning the firm with 4,300 tapes in storage. The catalog of tapes was scanned and sorted into relevant and nonrelevant categories. Files deemed significant were further analyzed to pinpoint the three e-mail files of interest. All 4,300 tapes were searched, and the responsive files were identified and delivered to counsel, in only three days.
Besides reducing the time and resulting costs associated with detailed e-discovery projects, these software applications offer a second benefit: Because government preservation regulations require that different types of data must be retained for varying lengths of time, backup tape pools are often archived in multiple backup formats. Maintaining licenses for all of these disparate programs is expensive, and the process of restoring the data becomes even more difficult if any of these storage formats are retired or become obsolete. Advanced software applications that catalog tapes and run file-level searches override these concerns to quickly and easily produce the responsive data required.
Concerns about the escalating costs of e-discovery are undoubtedly justified. Attorneys, however, now have tools at their fingertips to mitigate these expenses. By relying on new software services, they can significantly reduce the scope of e-discovery projects by efficiently culling out extraneous information and thereby restoring only data relevant to the request at hand.
*The following article was authored by John MacDonald and Trey Wilkins of eMag Solutions. 2006 ALM Properties Inc. All rights reserved. This article is reprinted with permission from Legal Times (1-800-933-4317 – LTsubscribe@alm.com – www.legaltimes.com).
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