Seamus E. Byrne's - In Pursuit of Relevance

Edited by Joe Howie, the Association of Litigation Support Professionals (ALSP) publishes a monthly electronic newsletter for its members (ALSP Online).

"Yet even the beneficiaries worry that technology is more controlling than controlled. Workers fret for their jobs. Governments worry about people having access to information they no longer control. Corporate executives who once enjoyed quasi-monopolies now lose sleep—fearing that some little icon on someone's desktop is going to wipe away their entire business. And then there are the couples whose marriages are in turmoil because the executive sleeps with a buzzing Blackberry by the bedside—and compulsively answers email at the breakfast table."

Rupert Murdoch, Chairman and CEO of News Corporation, as quoted in his recent 2008 Boyer Lecture, "Who's afraid of new technology?"

Preliminary

Electronic content management ("ECM"), archival and search technologies are readily implemented by organizations to better manage and consolidate their electronically stored information ("ESI") and increase organizational efficiency. Seamus E. Byrne explores the benefits and challenges presented by such technologies when managing a discovery process for your client.

Defining Enterprise Technologies

Lifecycle Management

Today’s organization has power, custody or control over an increasing volume of ESI in many formats. Adding to complexity, the same ESI is often stored as duplicate, or synchronized, to a number of distributed locations.
Lifecycle management can be simply defined as the management of ESI, similar to the traditional concept of a record, from the time of creation, its period of retention, until time of deletion or destruction.

Enterprise Content Management

The Association for Information and Image Management ("AIIM") defines ECM as:

“the technologies used to capture, manage, store, preserve, and deliver content and documents related to organizational processes. ECM tools and strategies allow the management of an organization's unstructured information, wherever that information exists.”

ECM systems are responsible for the document management and records management requirements of content that has been electronically stored within a content repository from its paper or electronic source. Document management includes the ability to check-in and checkout documents for editing, whilst maintaining revisions or version history. Records management includes the ability to set automated retention and destruction policies, often using defined taxonomies to classify content, which align with legal retention obligations. The 2008 Gartner Magic Quadrant for Enterprise Content Management noted leading vendors including EMC, IBM, Microsoft, Open Text and Oracle.

Enterprise Archival

In addition to standalone file servers, enterprise archival technologies have recently focused towards the active management and archival of e-mail and instant messaging ("IM") messages. Active management, or journaling, is considered the automated ability to archive an electronic communication whilst it is in-transit. To varying extents, enterprise archival technologies integrate with ECM systems for records management purposes. In addition, some provide a direct interface to import and/or export ESI from common e-discovery platforms. The 2007 Gartner Magic Quadrant for E-mail Active Archiving noted leading vendors including Autonomy, EMC and Symantec.

Enterprise Search

Enterprise search technologies crawl or traverse and index the ECM systems, archives, file and e-mail servers within an organization. Dependent upon the organization, enterprise search is typically implemented as part of an ECM system, or separately, in standalone form. Many enterprise search technologies provide "federated search". Federated search is the ability to search a local content repository, whilst forwarding the same search request to other connected content repositories, from which results are returned seamlessly to the end-user. The 2008 Gartner Magic Quadrant for Information Access Technology noted leading vendors including Autonomy, Endeca, Google, IBM and Microsoft.

Connectors

A 2008 Gartner survey found that, from more than 400 enterprise respondents, 69% maintain more than six ECM systems and content repositories. Connectors facilitate integration between one or more content repositories, and allow them to "talk".

From a technical perspective, a vendor will typically release the Application Programming Interface ("API") for their proprietary content repository. Another vendor, or end-user, may then access the content within that content repository by developing a connector, which maps a compatible security permissions model and respective, often very limited, set of metadata fields.

Connectors are useful for maintaining the ability to access and search active and legacy ECM and archival systems. To date, and for this purpose, connectors have also subsequently assisted in enterprise e-discovery. However, due to the lack of current compatibility between ECM and archival vendors, the effectiveness of a connector varies upon its suitability within the specific technology infrastructure.

In September 2008, a number of ECM system vendors (including EMC, IBM, Microsoft) announced the Content Management Interoperability Specification ("CMIS"). The CMIS is to be submitted to the Organization for the Advancement of Structured Information Standards ("OASIS") for development as a standard.

Industry analysts have reflected that the specification is still in its infancy, missing a number of features of importance to e-discovery. Notwithstanding, the move towards a common set of standards to reduce the complexity in not only managing, but searching ESI, stored within multiple content repositories, can only be observed as positive for all stakeholders.

Software as a Service

An interesting trend, particularly within the small-medium enterprise ("SME"), is the adoption of hosted or Software as a Service ("SaaS") technologies to facilitate ECM, archival and search requirements.

Traditional ECM, archival and search systems require a large capital investment in licensing, infrastructure and services. In contrast, SaaS solutions are gaining popularly for SMEs who want technology comparable to that of a large enterprise, with only an operational expenditure investment, i.e. a per-user, per month subscription model.

From a commercial perspective, the availability of SaaS technology allows SMEs to compete with larger competitors. From a compliance perspective, and whilst feature sets vary between each vendor offering, such technology may also facilitate increased efficiency in complying with any discovery obligations. Common SaaS vendors include Google (Google Apps), Microsoft (Managed Exchange and SharePoint) and Salesforce (CRM).

Enterprise Technologies and the EDRM

Information Management

ECM, archival and search systems serve many roles, yet are arguably entrenched within the Information Management stage of the Electronic Discovery Reference Model ("EDRM"). The capability of any such system to efficiently support a discovery process is largely dependent upon system-specific workflow and integration features.

Identification

• How does the organization manage ESI?
• Does the organization possess more than one ECM or archival system?
• If yes, what is stored or synchronized to these systems?
• How is any storage or synchronization policy enforced?
• How are legacy ECM or archival systems accessed and maintained?
• If any connectors are being used to access and search other repositories, do they have any known limitations?
• Do any "information silos" exist due to lack of policy enforcement or otherwise?

Preservation

• Does the ECM or archival system support an internal "legal hold" feature?
• Alternatively, is there integration with an existing "legal hold" or retention platform?
• Is "legal hold" a manual, automated or hybrid process?

Collection

• Can ESI remain within the ECM or archival system pending processing and analysis?
• Alternatively, does potentially responsive ESI need to be exported to a local file system for further processing and analysis?

Processing and Analysis

Processing and analysis largely encompasses search functionality. Recent US case law has also positively re-emphasized the need for increased transparency and audit when conducting searches of ESI for the purposes of discovery.

• What search functionality is supported? (e.g. keyword, date range, custodian, concept, etc.)
• When a search is performed, what is actually being searched within the repository? (e.g. metadata and/or full-text content)
• Is search functionality focused towards traditional enterprise search, i.e. prioritizing search results on popularity ranking, or designed more specifically for discovery?
• If any connectors are being used to access and search other repositories, do they have any known limitations?
• Is de-duplication supported? If yes, how?
• How intuitive is the search interface?
• Is there integration with any common e-discovery platform for processing and analysis?

Review

• Does the ECM or archival system support an internal feature to review, tag and export potentially relevant ESI for production?
• Alternatively, is there integration with any common e-discovery platform for legal review?

Production

• What formats are supported for ESI production? (e.g. Native, TIFF, PDF)
• What formats are specifically supported for e-mail production? (e.g. HTML, MSG, PST, NSF)
• If production to an e-mail mailbox format is supported, is the original folder structure retained – or does it restore to a "brick-level" only?
• In circumstances where only an e-mail attachment or e-mail itself may be responsive, how is the "document family" relationship maintained and produced?
• How is metadata preserved?
• Is an audit trail generated for production actions?
• If yes, is the audit log comprehensive, easily viewed and interpreted?