Information Nation

Records are Proof

2010-08-27T13:10:00.000-07:00

Close your eyes and silently read the following chilling words from the August 26, Wall Street Journal article—“On April 20 at 10:43 a.m., a young BP PLC engineer sent a 173-word email to colleagues abroad the Deepwater Horizon drilling rig. The email spelled out a recent change to a key safety test that sparked confusion and debate abroad the rig. Less than 12 hours later, the rig was engulfed in flames so hot they melted steel”.

As the fateful day proceeded, it was clear there was confusion about whether or not the well was stable. “over the next two hours, there were signs the well was slipping out of control. For one, more fluid was flowing out of the well than was being pumped in, according to electronic data reviewed by investigators after the explosion.”

As the lines are now being drawn to determine who is responsible for the death of 11 people and the largest oil spill in our history, what is clear is that records will likely be central in determining who is at fault. For example, Brian Morel who “wrote an email about a week before the explosion, saying that it was a ‘nightmare well which has everyone all over the place’ has refused to testify before a federal governmental panel citing his 5th amendment against self incrimination.”

For those businesses who refuse to recognize the importance of a records program, ask yourself if your business would continue to exist after sustaining a multiple billion dollar penalty.

Viva La Records Management

Leaks happen. How do we stop them?

2010-08-02T12:22:00.000-07:00

This week has been a bad one for the administration when it comes to information leaks. As they try to figure out who the data colander is and why he/she has exposed 90,000 classified documents about the Afghanistan war which may explain why it’s going so poorly, one needs to ask what can be done to stop such leaks.

Well the government had policy (in this case a really serious one) and the soldier with intelligence access didn’t follow it. Find him and fire him. Not strong enough. Find him and court martial him — same thing. We need it stronger so others don’t follow suit. OK, if we were in Iran what would they do — behead him? We are free not a Islamic totalitarian regime. Ok, what if we were in Russia - Gulag summer camp and Siberian Labor camp winter get away? Now that is better. But the American people won’t agree and maybe it's “Cruel and unusual punishment." Ok what if we were in France. They would make the leaker the president. Ok wrong location.
Ok, lets be America. But let’s find better ways to make our point to employees and make it stick. Lets realize that information flows and sometime out of the receptacle and we will need to deal with it.

Thoughts?

The Hard Drive in the Sky

2010-07-30T07:45:00.000-07:00

If at first you don’t succeed, try, try again. And so it was that we tried “outsourcing” and that fell down flat on its e-face. Then someone called it using an “Application Service Providers” or ASP but that sounded like we would get stung and they failed to understand the importance of giving our data over to a newish under-financed company who maybe didn’t care about privacy, information security, etc. But then, we went to THE CLOUD. There I met a beautiful fairy who showed me the way of the Cloud Computing—"Isn’t it wonderful" she purred, “the hard drive in the sky.” And I saw it and it was wonderful indeed. Blah, Blah, Blah.

But businesses are now getting serious about Cloud Computing and I don’t really have the heart burn I may have had before. And that is because real businesses with lots to lose are doing it . That doesn’t mean you don’t need help navigating this new business relationship as it is different. But rather, it is serious business now done by companies with lots to lose if they screw up. The July 26 WSJ article said it all “Microsoft and Google Vie To Sell U.S. Cloud Mail."

Oh, so you weren’t really a fairy at all? “No, I am a Stanford graduate in Computer Science with funny slippers and comfy pants.” I got it.

Records live on.

2010-07-29T10:35:00.000-07:00

A company lawyer recently said to me, “I dream of a day when we have no records.” I thought about it and responded. I wanted to say --“You can fly if you believe Wendy.” But I held back.

I don’t know anything about doping or performance enhancing drugs. I know certain athletes have used them and it doesn’t seem fair if one uses them and another doesn’t. But this is a blog about information management not sports or even fairness in sports. Ok. Yesterday, I was reading an article about Lance Armstrong and the continuing investigation into performance enhancing drugs in the Tour de France. I think Lance is amazing—he dated a rock star—I haven’t. He won the most well-known and one of most demanding and grueling bike races in the world. I ride a bike and am lucky to beat my kids to the end of the block. Anyway, what I would say is that people will testify about the issue. They are either credible or not. Records can and will be used to defend or advance the argument against Lance. If I were Lance a few years back, seeing that performance enhancing drugs is becoming an issue going forward, I might regularly get myself tested and retain the results for if and when I need them to prove that I did nothing wrong. I wonder what his doctor would say. Remember he had cancer and presumably is tested regularly (maybe not for drugs) but maybe his doctors records would show us truth.

In the end, your ability to defend yourself is either having good human testifiers or records. For me I would rather have good documented evidentiary support as I know other bikers may feel “sour grapes” and lie. I know people have selective memory. Others of us just forget. In the end, records live on.

Vive La Records.

Much Thanks

2010-07-26T07:58:00.000-07:00

I just completed an amazing trip to China. I was hosted by Renmin University Professor Xiaomi An and had occasion to talk and interact with her students. I spent a lot of time with her graduate students Weakow Wang and Ye Shen. First, when it comes to Information Management they are ahead of the pack. Second, when it comes to navigating China’s bright future, they will play an important role. Finally, when it comes to the deep goodness that makes our world smaller, more connected and joyous, they are some of the reasons why.

China has come so far so fast. China will go even farther with people like Xiaomi, Weakow and Ye Shen. Thanks for opening your world to me and teaching me so much.

Time to work together

2010-07-13T12:39:00.000-07:00

In the old days of litigation, a lawyer representing a company with lots of information might take a huge collection of documents and produce them knowing that the other side would have a hard time finding the relevant stuff from the crud. In other words, the strategy would be “hide the relevant needle in a big hay stack” . With the change to the Federal Rules of Civil Procedure and the need to “meet and confer”, that has changed. Can’t hide the ball as a plan; need to work together to disclose what you have (we have built RulesMapper to help), need to tell the other side what is “not accessible” and generally work together to focus the discovery process. If there was confusion about working together with your adversary, read Mancia v. Mayflower Textile Services Co. [2008 WL 4595275 (D. Md. Oct. 15, 2008)]. In the case Judge Grimm makes clear that Fed. R. Civ. P. 26 now requires lawyers to cooperate in e-discovery and if they fail it might be considered a violation of the duty of "reasonable inquiry". Money, time, collegiality and law all require working together. What’s stopping you?

Tell us about your RulesMapper

2010-07-12T10:13:00.000-07:00

A client wants to get a better handle on the information assets they have. In the old days, RM consultants used to get their troops out to inventory the enterprise. Months later and buckets of dough later, there was a spread sheet of stuff that purports to be the records. We have changed all that as we wanted our clients to spend their money on making retention work not just knowing what they had. Along the way we developed RULESMAPPER-an information governance dashboard to do the whole records inventory process for way less money and way less time. As it turned out, RULESMAPPER is way better than we thought. Clients tell us all the time how they use RulesMapper for “mapping of sources lite”, private information management, etc.

Jeanne Caldwell (the brains behind RulesMapper) and I want hear from you about how you are using RuelsMapper and how we can make it better.

Thanks

Randy Kahn

The new Information Parking Lot

2010-07-07T09:47:00.000-07:00

When people vote with their feet, it is worth watching which the way they go. When employees flock to Sharepoint, it is worth figuring out why? But I already know why they flock to Microsoft’s new Information Parking Lot. Employees like it. Employees find value in it. They use it and it makes business “faster, better, cheaper”. So don’t be so quick to say no to any useful Information Parking Lot without knowing more. There are information management, records management and compliance purists that can find fault. Get over it. Look closely enough at anything and you will find fault. At least I know where my information assets are parked.

Call to Action

2010-07-06T07:41:00.000-07:00

How do I know if records retention is working for my organization today? If employees are not applying the rules and getting rid of content — it is not working. If share drive environments grow unfettered then perhaps retention is not working. If IT systems are purged without regard to what’s in the computers then it's broken. But I already know it's broken. It is not working for most companies because the business world changed but the rules of records retention didn’t keep up with change. I am advocating for change.

In an IT-centric information governance world, you need to get real, real fast. If you think a set of retention rules that are event-based (don’t start to run until the happening of a future event) can work today with technology, I have another belief — it's too hard to build work flows for every future business event just to get rid of content. What that tells me is we should seek to have as few event based retention rules as possible. If employees aren’t doing retention as they are too busy already, then find another way.

Bottom line, I want to hear from you if you will work with me to change the industry. Are you in?

Randy Kahn

Finally a ruling on City of Ontario, Ca. v. Quon

2010-06-28T07:13:00.000-07:00

At long last the Supreme Court has ruled on City of Ontario, Ca. v. Quon. I say at long last because I have heard so many things about the case that it’s nice to hear the real facts and clear up any confusion about the law. This is the case involving a police SWAT guy who was given a paging device by the police department and then had his messages reviewed after he exceeded allotted departmental usage. Quon, the SWAT guy, cared because he had used the text capability provided for “BUSINESS PURPOSES” for mostly personal messages and had sent some sexually explicit and salacious texts as well. Anyway, the Supreme Court handled the case rather well. While not really addressing whether or not QUON had an expectation of privacy, they concluded that the search of the stored messages was not unreasonable, blah, blah, blah.

Well, the case stands for the same beliefs Kahn Consulting had been guided with in all our policy work over the years for clients. Make sure you have policies and that they clearly communicate the “rules of the road”. Make clear employees do not have an expectation to privacy and that the rules apply to all technologies of telecommunications systems provided by the employer.

There was special issue in the case that needs special attention. The texts were stored on the provider’s computers not the Police department’s servers. This issue needs special attention. Given the complexities and law on this issue, I am not going to give simple rules here that may confuse you. Suffice to say, as you contemplate storing content on “THE CLOUD” think about how accessing the business content when it is not on your server may have legal implications. If you need help, give us a call.

Arbitrariness

2010-06-25T11:31:00.000-07:00

Arbitrariness, I am not sure if it’s a word. But, it is a thing worth exploring. When folks do something for poorly thought out reasons, or no reasons at all, that is arbitrariness. Like, for example, making a record by filming the CIA interrogating terrorists. Why was it done and why are we continuing to do it--So that we can demonstrate to the world that we are not too tough on terrorists. But I digress.

A guy builds a spreadsheet for the Mine Safety and Health Administration but configures it so we can only see a mine that has safety problems and not the parent company which may own many mines, all with safety problems. It is arbitrariness that allows the bad design to limit the safety agencies ability to track trends by offending companies. Arbitrariness!

Or When the same Mine Safety agency only allows a certain number of offending mining companies to be “assigned tougher enforcement” for their failings—that too is arbitrariness. In the June 24 Wall Street journal, the article states “The Labor Department’s Inspector General found that federal mine safety regulators may have improperly limited enforcement of mines with serious safety violations… District managers could select no more than one mine a field office and a maximum of three mines a district office.” I sure hope we spread out the “bad boys” of mining so that it comports with the Mine Safety “one bad boy per region” rule. Arbitrariness.

When a CIO keeps 10 years of disaster recovery back-up tapes and asks why they keep getting their clock cleaned in discovery—that is arbitrariness.
When a records manager pushes out the updated retention schedule with 600 rules instead of the 1200 they had before “simplification” that is arbitrariness.

Does a request for information matter?

2010-06-14T10:39:00.000-07:00

Many have concluded that the risk and exposure of litigation cause companies to make business decision about legal claims. So if faced with a $500,000 expense to do discovery of electronic stored information(ESI), some would rather settle the case for $100,000 even if it has no merit.

But does the mere request for information from a government regulator impact the company? Well of course it can. Take for example the request for records by a federal agency of a well known public company in the news recently. The day the information request became known the stock went down 5% which is millions and millions of dollars.

Where's Waldo?

2010-06-09T10:40:00.000-07:00

Randy’s Theory of Information Mismanagement-If at first you fail to do anything or do something albeit poorly, you will most certainly revisit your failings at the first smell of litigation or regulatory investigation.

Let apply this theory-

How about we start with the June 8 Wall Street Journal article entitled “Goldman Accused of Stalling By Panel”. It appears that the Financial Crisis Inquiry Commission sent Goldman a subpoena. It also seems that maybe Goldman didn’t respond with needed documents in a timely fashion. So in a rush, Goldman chucked huge chunks of data over the fence to the agency. How much you ask? Well 5 terabytes. That is the equivalent of hundreds of millions of pages. Guess what the response was “we should not be forced to play ‘Where’s Waldo on behalf of the American people.' Ouch.

If electronic information is mismanaged upfront, finding it when you need to is a major headache—SEE GOLDMAN.

Spending a little money to get your house in order proactively may not take all the hurt out of finding Waldo, but it sure can help.

Proactive v. Reactive

2010-05-28T10:05:00.000-07:00

We did a bunch of records and information management (RIM) consulting work for a big oil company a few years ago. The company was motivated to build a world class RIM program because they believed that could be significantly more productive “per well drilled” if they better managed their business information. In other words, they liked eating from the “carrot” jar when being motivated proactively to get serious about harnessing information.

There is another oil company right now battling in the gulf, battling regulators, battling wall street, battling bad PR, battling angry fisherman, battling angry citizens, battling a tourist industry, battling environmentalists, etc. I couldn’t help but think how records will play in resolving this problem which will go on for years — clean-up, new regulations, and lawsuits.

I also want to say that in the cloud of news media, which tends to focus on the gusher,from myself and the whole Kahn Consulting team, we are deeply sorry for the loss of life the tragedy has caused. Our hearts go out to you.

Facebook is fixing its problem

2010-05-27T11:42:00.000-07:00

The intent of social networking is to share. The business model of Facebook was to make an environment that promotes sharing. Well they now are being asked to tweak that model. For business sake, Facebook is responding. Here is the story in a nutshell. Facebook is under attack by privacy advocates. I get it, they feel like too much personal info is too available and controls aren’t good enough. So what is Facebook doing—its fixing the problem. I like free market fixes and Facebook is a perfect example of a market driving change. No lawsuits had to be filed (I am sure they will be anyway) or regulators had to jump in to tell Facebook that the way things are structured isn’t good enough and needs to change. So what Facebook is doing is making more basic data private. It's making it easier to control different kinds of information to remain private, provide more ability on the users part to have even more customized settings and provide better control from outsiders to users.

Are they working???

2010-05-20T07:37:00.000-07:00

After a few years with the new Federal Rules of Civil Procedure, I am left asking if it has helped. Is discovery any different? Well, I think so, but discovery is still expensive, a pain and major league inconvenience for many—but, I never thought that would go away anyway. There are cases that tell me much as changed. For example, in Calixto v. Watson Bowman Acme Corp, a case about intellectual property rights, the plaintiff sought to compel discovery on back-up tapes with a significant cost to ready them for the searching process. In the case, the court found that the backup tapes were not reasonably accessible due to undue cost and burden. That said, the defendant had to restore one backup tape to see if it contained deleted email from an employee. As you might remember one major change with the new rules was that discovery on “inaccessible data” would not necessarily be forced. The case is one example to say that it seems like they are working. What do you think? Write me with your thoughts.

IT Ain’t About The Cloud

2010-05-18T10:25:00.000-07:00

There is lots of conversation about the privacy and e-communications in the work world, especially with the Supreme Court ruling expected soon in City of Ontario, Calif. v. Quon. As you may know, the case is about the expectation of privacy when an employee uses an employer provided communications devise for personal reasons. In the case a police officer’s sent personal text messages on a department device were reviewed by the department and the officer sued for a violation of his expectation of privacy. Confusion between official department policy which made clear the employees should NOT expect any right to privacy were watered down with a supervisor ‘unofficial’ actions which allowed officers to personally pay for overuse text messaging charges with an understanding the their personal messages would not be reviewed. Even though the department policy was clear regarding the official “no expectation of privacy” for employee use of department-issued electronic communications devices(which the employee signed off on), the supervisor's “unofficial policy” and “creation of an unauthorized expectation of privacy” creates the rub in the case. Now in the employee’s favor he did pay for part of the use of the device and he did send personal messages off-duty so perhaps the employer was not clear about when and how the device should be used and maybe it in part became a “personal” device when he paid for its use. So what is clear—this case makes clear that employers better BE CLEAR about directives. This case is not about third party storage of the messages “in the cloud”, though some have made it about that very issue. This case is not about the court undoing employers rights to review e-communications when they are CLEAR about their “no expectation of privacy” policy. This case is not about what private vs. public employees should expect from their employer regarding monitoring. This case is only about the reasonable expectation of privacy of one officer when policy is made ambiguous by word and deed. The court may broaden its ruling but the case is about varying official policy and unofficial practices and how that impacts what employees expects. Remember in Information Nation: Seven Keys to Information Management Compliance, one of the keys makes clear the need to be consistent. Clear policies consistently applied.

Going “Business Naked” is Way Too Much Exposure

2010-05-17T07:35:00.000-07:00

Many many months ago, homeowners started complaining of odors, metal being corroded, respiratory ailments, headaches, nose bleeds, etc. After many more months of investigations, it was determined that drywall produced in China was the likely culprit. Apparently Chinese produced drywall has a concentration of a sulfurous chemical, not found in US produced drywall and it was causing the problem. Anyway there has been lots of governmental wrangling over the issue for many more months. Many articles written about the problem and the passage of more time. Finally, today it was announced that rather than wait for lawsuits to be filed (because that is no fun and likely way more expensive) the Chinese drywall makers are agreeing to settle with large and small home builders in the US who in turn will likely settle with home owners and fix the “stinky” drywall problem.

But how do we know which homes got Chinese drywall? As you will recall, we had a major housing boom (a long, long time ago) and drywall was in hot demand. Builders were looking for a source for drywall from anywhere and anybody. So we bought from the Chinese and it happened to have a high sulfur content or something similar which caused a bunch of problems. Well, I guess it’s good we live in America where we regulate what goes into drywall, baby food, dog food, paint for kids toys, etc. But we are a global economy and get products from all over the world-like Chinese drywall for example. Anyway, once it went into homes, how do they know which home got Chinese drywall? Absent a complaint, how do we know which houses to investigate and which walls to replace?

RECORDS. RECORDS. RECORDS. According to the May 17, 2010 Wall Street Journal story covering this matter, “Builders will have to document that their problem drywall did indeed come from KPT (the Chinese drywall manufacturer)and show reasonable repair costs”. Ok, got it-have records to show they bought Chinese drywall, records where the drywall was installed and records to prove expenses. We live in a world where records allow business to happen. Without them we are “business naked”.

Where’s The Information Toyota

2010-03-05T11:50:00.000-08:00

As if the heightened media attention on Toyota, its alleged design defects and the presence of the Mr. Toyoda on Capitol Hill was not enough negative attention, the February 27, 2010 Wall Street Journal article entitled, “Toyota Accused of Withholding Records” cuts to the heart of the issue seemingly haunting the car maker. If there were multiple common complaints about design defects which caused accidents, and the company knew of such problems, then why didn’t the company act earlier and with greater resolve. Companies “speak” with either records and/or its employees. While employees forget, lie, retire, etc., records, if available, can demonstrate what happened and when. If complaints were made that showed common problems in certain car models, then law dictates records should exist and those records should document such failures. If requested in a lawsuit or investigation records should have been provided whether or not they hurt Toyota.

I make no apologies for Toyota--if they hid or destroyed evidence of design defects then they should pay the price. In other words, intentionally hiding evidence is a serious issue that needs to be punished. On the other hand, if information was not produced because after reasonable attempts, it could not be found, then maybe the courts or regulators should punish less harshly or maybe not at all. I don’t know if this is relevant to the problems facing Toyota, but I do know it is a reality in litigation in today’s explosive information world. Information volumes are growing so fast that knowing all the potentially relevant evidence in a lawsuit is almost impossible. Compounding matters, employees use endless new communications technologies making management of the expanding information universe worse than drinking from a fire hose. Finding all relevant evidence in the world that executes contracts in email, modifies them in a text message and breaches them in a blog is a challenge for all of us. In today’s litigation world, if you look closely enough at any company, you will understand why unearthing and producing ALL relevant information is a nonstarter.

--- Submitted by Randolph Kahn, ESQ. Author of Information Nation and Email Rules.

Manage your email.

2010-05-03T13:27:00.000-07:00

Poor “Fab”. You ask me, "Who is or what is Fab?" He is Fabrice Tourre, a highly compensated French speaking financial guru at the epicenter of the Goldman debacle clouding Wall Street and Washington these days. He is the guy who wrote the email “suggesting” that the investments Goldman was involved with were not nearly as attractive as they wanted others to believe. I don’t really want to get into the Goldman case or what Fab knew or didn’t know. Rather, I wanted to go back to the 50,000 pound gorilla in the room. The point is best stated by the April 29, 2010 Wall Street Journal Article entitled, “Backlash Against Email Builds”. Don’t blame the messenger for the idiotic actions of your colleagues. As far back as “Email Rules” I was telling you to manage the medium. If done right it is your organization’s best productivity tool. When mismanaged it is a major source of headache. Duh. Fab was doing his job. Maybe he was saying stuff he shouldn’t have. Maybe he was being flip. Whatever. Get over it and manage it. And perhaps you need more training. Have I got a training session for you :)

Not Good. Not Bad. Just Are.

2010-05-07T12:26:00.000-07:00

I am often asked if Records Retention should consider the likelihood of being forced to produce records in a lawsuit. My response--records are neither good nor bad, They just are. And you manage them without regard to how they may impact you later on. Sometime they can really offer up protection not just be the treasure trove of smoking guns. Take for example the recent move by the Catholic Church. The Catholic Church has been rocked with endless sexual abuse scandals in which it has been widely reported that the Church “covered” up numerous egregious child molestations for years across the globe. Now the Church is going to use its records to come clean. According to the Wall Street Journal on May 7, 2010, “Roman Catholic bishops in countries across Europe are trying to get ahead of a widening sexual-abuse scandal by employing a potentially risky strategy—pre-emptively digging through church archives to see what skeletons remain to be unearthed”

The Nose Test

2010-02-18T08:32:00.000-08:00

We were drafting a legal hold policy for a client’s law department when the client asked when it was necessary to issue a legal hold notice to preserve information. My answer usually involves an application of the nose test—which is “the first smell of trouble”. But what is trouble? Great question. Let me consult my nose. My nose says, “it might involve getting into trouble with a regulator or court.” OK, got it. But that is really way too simple. No doubt failure to provide employees with timely notice of the need to preserve information for a pending, threatened or imminent lawsuit is essential. In a recent court case a judge made the following statement “…plaintiffs failed to timely institute written litigation holds and engaged in careless and indifferent collection efforts after the duty to preserve arose. As a result, there can be little doubt that some documents were lost or destroyed.” But, making a determination of when to do it is not simple and has serious implications.
Say I’m an insurance company, do I need to issue a legal hold notice every time I get a letter from an annoyed insurance policy owner. Oh. If I issue early—at the FIRST smell of trouble, I might over-preserve. How about preserving after we get served with a lawsuit? Well, that may be too late especially if a lot happens before the lawsuit. What if we get a nasty gram from a lawyer demanding the matter be addressed? How about a letter to mediate? How about a written complaint filed with the state department of insurance? How about a notice by the state that it intends to commence an investigation? You get the idea, before a lawsuit is filed, much can happen that should commence the legal hold notice process. So what to do. We deal with it all the time and if you want our help, please call early and often. Clearly earlier in time is safer. So a threatened lawsuit is earlier in time than a filed one but it has implications. Bottom line it’s a lawyers question and don’t let them delegate to you IT or RIM.

Case Law and Text Messages

2010-02-10T08:06:00.000-08:00

A client recently asked me what is real life meaning of ESI (electronically stored information, the term used by the Federal Rules Of Evidence ”FRE”). In the old days I used to say “if it was relevant and available even if it was on the bottom on my shoe, cough it up”. Well, that may have been a bit too cute, but the point remains—evidence that is even potentially relevant needs to preserved and produced to the other side in litigation, even if it hurts your legal position. Only a little has changed with the amendments to the FRE. There are exceptions—you may not have to produce “inaccessible data”. But in the end, you may have to do discovery on e-stuff that you normally don’t think about. There are cases where even temporary cache files had to be produced. There is now case law that covers text messages.
In Southeastern Mechanical Services, Inc. v. Brody (M.D. Fla. Aug. 31, 2009) employees had to produce text messages from devices owned by the company and personally owned devices. Because the employees apparently “cleaned” the devices in this case, it turned into a destruction of evidence case. Beware, ESI could be just about anything. Plan, Prepare, Preserve and Produce.

To Preserve or Not To Preserve? That is the question

2010-02-03T11:09:00.000-08:00

Hey IT-don’t accept the quiet delegation by the lawyers of determining relevance in a lawsuit. Err-Maybe overly broad(preserve everything) legal holds are not good. Err-Hey lawyer do your job and tell me, IT, what to preserve based on the facts of YOUR case. Lawyers (some of the lazy or fearful ones) like to lock down the whole place when they learn of a lawsuit. Keep everything just in case is their battle cry. Well its bad guidance most of the time, unless really required. Stopping the inner workings of the IT shop to preserve everything, creates a whole host of new issues. So don’t bite until you make the lawyers show you why it’s needed. Case in point. The Federal Court-7th Circuit are developing principles to better manage e-discovery. The E-Discovery Committee’s stated goals are “the fostering of a better balance for the ‘just, speedy and inexpensive’ determination of cases…”

Under proposed Principle 2.04 (Scope of Preservation)
(a) Every party to litigation and its counsel are responsible for taking reasonable and proportionate steps to preserve relevant and discoverable ESI within its possession, custody or control. Determining which steps are reasonable and proportionate in particular litigation is a fact specific inquiry that will vary from case to case. The parties and counsel should address preservation issues at the outset of a case, and should continue to address them as the case progresses and their understanding of the issues and the facts improves.

Whether or not it becomes the “rule” or not, it’s good guidance to you. The courts don’t require everything needs to be preserved, so don’t do it just because.

Flying through THE CLOUD with a Lawyer on Your Back.

2010-01-28T07:50:00.000-08:00

Just about everything I hear lately has something to do with “THE CLOUD”. I am just wondering is that like outsourcing or the ASP (application service provider) model of the dotbomb era? Don’t get me wrong, I like jingoisms as much as the next guy. I just need to know what they mean and their implications. Cloud computing is using the internet to bring technology or more likely software application to you. And it is not really bringing them to you it is making them available to you over the internet. For me they are really like the ASP model of yesterday year. So I take no issue with the name Cloud Computing. In fact I don’t think “THE CLOUD” is inherently good or bad. But it is different and you should consider how it is different from using software you pay for within your computing environment. Just a few things to think about when using someone else’s software application on their environment for business purposes—in other words, “Cloud Computing”.
1. Sometimes relationships go bad or even end and when they do how will you get your information back or have access to it without their “Cloudware”
2. You can’t delegate your legal responsibilities so remember privacy, security, records retention, tax filing support , etc. don’t go away just because your data is floating elsewhere.
3. If you need to have access to your Cloud data for litigation purposes, will your provider accommodate the request and in a timely and defensible fashion?
4. When a regulator wants to see the data or check to make sure it is being stored in accordance with regulations (if they exist for the industry or type of data at issue) will the government deem the environment OK for the task for which they were hired?
5. The rules the Cloud Co. may be following may be different than yours so make sure they follow rules you can live with or contractually make them follow your rules.
6. Anticipate new governance, risk and compliance risks.
7. Make sure the Cloud Co. deals with your disaster recovery requirements.
8. Make sure your litigation response process and e-discovery plan can be accommodated in the Cloud.