12 November 2009

The presentation was titled Information Everywhere: Understanding New Technologies and Coping With New Problems and was presented by Judge James Francis (U.S. Magistrate Judge in the Southern District of New York), Anne Kershaw (founder of A. Kershaw, P.C.), Thomas Morrissey (responsible for the development and implementation of technology supporting the Office of the General Counsel at Purdue Pharma) and George Rudoy (Director of Global Practice Technology & Information Services at Shearman & Sterling LLP).

They covered virtualization, unified communications and cloud computing.  First up:  unified communications.

Unified communications (UC) is the integration of real-time communication services such as instant messaging (chat), presence information, IP telephony, video conferencing, call control and speech recognition with non real-time communication services such as unified messaging (integrated voicemail, e-mail, SMS and fax).

More and more corporations are moving to UC and it will present/is presenting enormous e-discovery nightmares.  First, some basics:

UC is not a single product, but a set of products that provides a consistent unified user interface and user experience across multiple devices and media types.  UC refers to a trend to offer “business process integration” which means (basically) a process to simplify and integrate all forms of communications in a company to optimize business processes, and manage flows.

So, for discovery, you have EVERYTHING in one place.  It kind of … kind of … makes search easier.  You have the whole story in one spot.  Or as Anne Kershaw said it is like the old days when you went to the file cabinet and went through the correspondence in a file and you said “oh, I see, he wrote this, then she wrote that, and he said this …”

UC allows an individual to send a message on one medium and receive on another. It makes it possible to easily transfer any activity or message to another medium. For example, one can receive a voice mail message and choose to access it through email or a cell phone. If the sender is online according to the presence information and currently accepts calls, the response can be sent immediately through text chat or video call.

The difference between unified communications and unified messaging is this:  unified communications refers to both real-time and non-realtime delivery of communications, where unified messaging systems culls messages from non-realtime sources.

For business, UC it is a no brainer:  it represents a concept where multiple modes of business communications can be seamlessly integrated.  UC integrates all the systems that an employee might already be using and helps those systems work together in real time. For example, unified communications technology could allow a user to seamlessly collaborate with another person on a project, even if the two users are in separate locations. The user could quickly locate the necessary person by accessing an interactive directory, engage in a text messaging session, and then escalate the session to a voice call, or even a video call – all within minutes. In another example, an employee receives a call from a customer who wants answers. Unified communications could enable that worker to access a real-time list of available expert colleagues, then make a call that would reach the necessary person, enabling the employee to answer the customer faster, and eliminating rounds of back-and-forth emails and phone-tag.

Note: the panel provided a video from Microsoft (not to sell Microsoft but to show how this all works) and you can access these videos by clicking here.

However … the e-discovery concerns.  And will the e-discovery concerns slow adoption as companies learn that the move away from traditional phone service includes the conversion of voice mails into e-mail in the form of wave (audio) files.

In the event of litigation, they are discoverable in either case, but in electronic form these audio files must be converted to text because wave files are difficult to search because as audio files there is no actual text information to pull out the document during a search.

Failing a completely accurate technology option, the best protection is a sound business process for the handling of voice mails in any form. All the panel recommended handling voice mails on wave files as part of a company’s document retention (and deletion) policy.

And … like any document, voice mails can provide the smoking gun that determines the outcome of a lawsuit.

The panel did not believe there was an increased legal risk by going to unified communications (companies are storing more voice mail as a result of the conversion to unified communications) but since traditional voice mail already is discoverable, converting voice mail to electronic form makes files more accessible to more people.  And it also makes them easier to store and move around, if not search.

But it triggers issues surrounding legal holds and the “duty to preserve” since these concepts/principles applies to all relevant existing or subsequently created data.  As one panelist said, upon issuance of a litigation hold notice or on receipt of a discovery request a company would have to suspend its retention policy and halt destruction of potentially all voice messages on the voicemail server.  Each message would have to be reviewed for a relevance determination.  Prohibitively time consuming and expensive.  Maybe the relevance of the message may be identifiable based on the context of the metadata regarding the sender, recipient and date/time received? 

A complex, complex area.   But regardless of the digital technology, it all must be integrated in a data retention/deletion policy.

Bottom line:  unified communications promises to pave the way for more collaborative business practices and greater productivity, but it also means the general counsel and his/her ESI manager have another set of issues.  Because while while real time communications like IM, VolP, web and audio conferencing make business workflow easier it also brings inherent risks including security, compliance and e-discovery.

Here are a handful of articles that popped up over the weekend and which we think would be of interest to our readers.   As if you don’t have enough to read as you start your Monday morning:

* A relook:  “Lock the law school doors” (now with 152 comments)  http://sn.im/s6ads

* How to Budget for Ediscovery Costs   http://sn.im/s61ap

* EDRM Critique: From Hand-off to Collaborative Culture http://sn.im/s61b5

* What makes Twitter worth a billion dollars?  http://sn.im/s61aa

* Making sense of Twitter’s influence on the corporate world  http://sn.im/s6k9h

* Computer Forensics and Cyber Crime: an Introduction  http://bit.ly/1I15gJ

* Popular Logos with Hidden Symbolisms http://j.mp/3L4ad8

* Americans Tame Their Wanderlust – migration favors DC Alaska and Texas http://tinyurl.com/ydvhlev

* The best WordPress blog theme right now to start a blog/website http://bit.ly/1afpGf

* Tips on “Meet and Confer” from Orange Legal Technologies  http://sn.im/s62oj

* 60 Websites Sites in 60 Minutes:  Practical Skills CLE        http://sn.im/s6a5y

Today we start a series called “Manic Monday” – a wholesale theft of Gabes Guide idea of “Lazy Sunday Links” (click here).

We’ll provide links (and some quotes) to a handful of articles that popped up over the weekend and which we think would be of interest to our readers.  As if you don’t have enough to read Monday morning. 

The Critical Need for e-Discovery Certification

Today’s screaming for qualified e-discovery professionals has reached an unprecedented volume.  Recently, Socha-Gelbman published an overview of the results of their annual survey on the Legal Technology News site (link in article which follows).    One of the most important single observations from it is the shortage of expertise in the market-place with providers, law firms and corporations.   The article describes the Organization of Legal Professionals formed for the purpose of providing an exacting and tough certification exam to establish core compentencies.  For full article click here.

EDD SHOWCASE: Strange Times

In case you missed it, Socha-Gelbman published an overview of the results of their annual survey on the turbulent year in the EDD industry.  It covers the shortage of EDD expertise,  what e-discovery services will continue to gain momentum, the fastest-shrinking service areas, etc.   For link to full post click here.

Mathematical Formula for Justice Proves the Importance of ESI in Civil Litigation

Ralph Losey says “I am reluctant to share my unusual analytic approach to law, but am encouraged to do so by the words of the great British philosopher and writer, Bertrand Russell”.   But in a cool article he says that justice can be represented by an abstract logic formula.  For full article click here.

Computer Forensics vs. Electronic Discovery

Computer Forensics vs. Electronic Discovery methodologies share some common capabilities. One is the ability to produce an inventory of the collection, allowing reviewers to quickly see what is present. Another is the ability to determine a common time zone to standardize date and time stamps across a collection. Without this standardization, an e-mail response may appear to have been created before the original e-mail.  For full post click here.

Electronic Discovery: Basic Framework

Although the details of each E-Discovery effort will vary from case to case, there are certain similarities that exists between them.  Basic data formats have evolved over the past few years into de facto standards used for the collection, review, and production of electronic documents. The steps taken to ensure quality are also generally applicable to most cases. Proper handling of ESI processing should begin with a basic framework.  For full post click here.