Legal Tech 2010-Best Practices in Compliance and Email Management in the Cloud

by Cary J. Calderone, Esquire

The participants (listed at end) on this panel had many years of eDiscovery experience and came from a variety of backgrounds including legal, consulting and product vendor. This was like getting a "Quick Tips" guide to eDiscovery because they chose to a conversational approach instead of doing a lecture and presentation. They started off first, by agreeing with Malcolm Gladwell's keynote comment, "we are in massive information overload." Then they got right at some important distinctions for the new language describing eDiscovery and, in some cases, updated the definitions for some of the old labels. For example, they talked about the "Cloud" and basic definitions, but the panel thought it was necessary to be more specific now and gave examples:

1. Public cloud-3rd party provider
2. Private cloud-you set it up yourself
   
3. Storage Cloud-as opposed to applications
   
4. Infrastructure-the network behind the Cloud

The driving force behind the use of the Cloud is that "head count is expensive."
Peter Lesser believed that private cloud is the safest way to store and use data because then users keep it off their laptops, etc.

The panel drilled down on Infrastructure and asked about variables like:

• International considerations.
• Where is the data really stored?
• What about Virtualization?
• Can you identify and distinguish between "primary" and "backup" data?

Tom Gelbman commented that the de facto Policy might be just to keep everything forever.

They noted some of the really difficult questions. How are you going to apply your Retention Policy? Where is the data? For example, a Swiss based parent company with data kept in Arizona? Is it now subject to Arizona and US jurisdiction?

What happens when a broker-dealer uses Facebook but can't capture the Facebook data-that is a problem under the current rules. And, if Corporations think they are just going to shut these things down “they are delusional.” Between, Twitter feeds and text messages etc., even with policies in place, they may be unenforceable. "Behavior does not change because you have a policy." This author would disagree. I believe that you can change some behavior with a well designed policy and training but agree that just having a policy, is seldom enough.

They claimed that without some sort of auto-classification tool, the management of the data is impossible due to the volume. They also recognized the sobering fact that it is much easier to get money budgeted for eDiscovery than it is for Retention. No arguments from me! Oil changes and routine maintenance seem to get quickly cut from budgets, but once the car breaks down, you have no choice but to call the tow truck and prepare for a big bill from the mechanic. Is your company being "proactive," with litigation preparedness, or, will they have to be "reactive" and pay for the blown engine when litigation erupts?

Tom Allman's Cloud checklist:

• Can you suspend all auto deletion and move the data to an eDiscovery location?
• What about meta-data?
• Do you have backups to the cloud?
• Neither Google nor Microsoft will implement legal holds. There is no Microsoft product to stop users from deleting a message. Journaling is the only option. Do you have it?
  
• Does the Cloud help with cleanup of the digital landfill? Yes, it can.

Rosenthal and Lesser noted that the move to the Cloud has a positive effect in that it “Forces companies to engage in legacy retirement programs.”

Allman added one of his favorite funny-but-true tips, If you have backup tapes that are 25 years old, make sure when you sell a division, all the tapes go with it!

Weiss believed for many instances of email, you keep it 10 years then delete it, because access to it becomes more and more difficult.

Rosenthal added that legacy program are linked to applications and clients. So how would you ever be able to sample, search and analyze the data?

They posed another great question: Can you determine the value of the data?
Lesser-Storage is getting cheaper every year but the cost of the people to organize it far outweighs the cost of storage.
Brian Weiss added that yes, storage is cheap, but retrieval is expensive. Moreover, to scale up to index large amounts of data is still very expensive.

The final thoughts or hopes were that in five years from now, there would be no applications stored locally on computers and there would be much better search tools.

We shall see!

Panel participants:
Tom Gelbmann, Managing Director, Gelbmann & Associates
Tom Y. Allman, Editor, The Sedona Principles
Peter Lesser, Director of Global Technology, Skadden, Arps, Slate, Meagher & Flom, LLP
John J. Rosenthal, Partner, Winston and Strawn, LLP
Barry Murphy, Principal, Murphy's Insights
Moderator:
Brian Weiss, VP eDiscovery and Information Governance, Autonomy