Electronic Discovery and Evidence

A.C.L.U.'s Shredding of Documents

Concerns at A.C.L.U. Over Document Shredding.  "The American Civil Liberties Union has been shredding some documents over the repeated objections of its records manager and in conflict with its longstanding policies on the preservation and disposal of records. The matter has fueled a dispute at the organization over internal operations, one of several such debates over the last couple of years, and has reignited questions over whether the A.C.L.U.'s own practices are consistent with its public positions. . ."

Arthur Anderson Conviction Reversed!

On May 31, 2005 the United States Supreme Court reversed the criminal conviction of Arthur Anderson for document destruction of Enron documents.  Some noteworthy comments by the Court, " Document retention policies, which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business. See generally Chase, To Shred or Not to Shred: Document Retention Policies and Federal Obstruction of Justice Statutes, 8 Ford. J. Corp. & Fin. L. 721 (2003). It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances. . . A knowingly . . . corrup[t] persaude[r]. cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material. . . "

Download Anderson_USSupreme_050531.pdf

What CIOs should know about records.

What CIOs should know about records. "The sheer chaos of electronic records makes them high risk, and the probability of consequences is high. Well-respected companies have been scandalized by errant e-mails or fortuitous file cleanups. The resulting reputation damage, and its negative effect on stock value, riles shareholders, rocks the boardroom and has repercussions throughout the C suite. . . ."

Enterprise Content Management & Litigation

Content Management for Everyone. "Finally, enterprise content management (ECM) for the masses; giving all knowledge workers the keys to the content kingdom "Perhaps it's time to redefine the popular acronym ECM -- Enterprise Content Management -- that appeared in the late 1990s to describe how enterprises implemented different electronic content management functions. The ECM acronym is really a complete misnomer for how content management was actually used by enterprises. In reality, ECM was never made available to the majority of employees . . "

Document Records - Trends

What's Next for Compliance? "Four recent developments point to new directions to consider for records retention efforts. by Julie Gable December 1, 2004 Rate and Review This Article Email Article to a Friend Write to The Editor Print This Article Compliance is becoming a two-tiered concept. Over the last 24 months, heavily regulated, Fortune 500 companies have put programs in place for meeting Sarbanes-Oxley and other regulatory mandates, accomplishing compliance with a capital C. The remaining concern for many companies now is compliance with a small "c" — the ability to comply  . . "

Archival Records - Missing Records

Is Your Company's Archive Really Archival?
(8-12-04). "Computer networking and advances in digital storage technology would seem to have created archival bliss for modern enterprises, but these simple principles are challenging to practice. A record may be unavailable for perfectly innocent reasons; perhaps it was just lost, or accidentally deleted, or corrupted due to missing metadata."

Comment: Article discussing the difficulties of archival systems from an IT perspective.

Zubulake 's Inaccessible Distinction Will Fade Away

(6-13-04) "EMC Corporation, the world leader in information storage and management, announced today that Adirondack Electronics Markets (AEM) has implemented EMC's Proven Solution for E-mail Archiving to help comply with U.S. government mandated e-mail archiving requirements. . . SEC Rules 17a-3 and 17a-4 under the Securities Exchange Act of 1934 require companies in the securities trading industry to retain and keep e-mail correspondence readily accessible for a minimum of three years. NASD regulations require broker-dealers to establish procedures for monitoring incoming and outgoing electronic communications relevant to their trading business. To comply with both agencies' regulations, AEM deployed the EMC Proven Solution for E-mail Archiving as part of its information lifecycle management (ILM) strategy. LEGATO EmailXaminer(TM) allows AEM to quickly and efficiently monitor, review and classify e-mail messages and store audit records in accordance with NASD requirements. This was previously a time-consuming and resource-intensive process. LEGATO EmailXtender(R) defines and applies policies to users subject to the SEC requirements, automatically captures all e-mail messages and indexes these messages. LEGATO DiskXtender(R) then moves the e-mail to EMC Centera(TM) content addressed storage (CAS), where it is retained securely for six years. "The SEC requires archived e-mail to be stored on non-erasable, non-rewriteable storage, while still being easily accessible," said Vdovets. "

Comment: These types of technological advances in management of electronic discovery and evidence will minimize the inaccessible data distinction set forth in the Zubulake decisions.

Destruction of Computer Evidence

(6-11-04) Evidence spurs call for probe of SAIF. "SALEM - A whistle-blower's affidavit Thursday charging top officials with destroying documents at a state-owned insurance company prompted the governor to call for an investigation and led a judge to schedule a court hearing on the matter. . . . Cohen's sworn testimony alleges that SAIF officials destroyed, suppressed, and prevented the disclosure of public records related to SAIF's lobbying and political activities . . . Cohen's affidavit also said that: Then-SAIF CEO Katherine Keen ordered him to change the title of a document "in order to make it more difficult for third parties to locate" on SAIF's computer system. Keene directed that SAIF change its e-mail retention policy, so that electronic messages would be retained one day, instead of 30 days, as had previously been the policy. SAIF executive Cecil Tibbetts twice told Cohen to delete SAIF documents from his computer "to avoid producing them pursuant to OSEP's document request. Tibbetts indicated to Cohen that he removed certain documents from his computer and took them home. In response to a superior's order, Cohen destroyed documents by removing them from SAIF computers, but first made copies, which he took home "for safe-keeping."

Comment: Public officials tried to hide electronic evidence as the electronic discovery process crept closer.

Document Retention

(6-10-04) It’s 2004, Do You Know Where Your Data Is?. "In an era of diminishing trust and public skepticism, regulations are being en-forced with greater vigor to enable regulatory authorities to accurately reconstruct past processes and events from electronic records. These sweeping initiatives are being targeted throughout the economy, with some regulations focusing on securities broker-dealers, pharmaceutical companies, healthcare organizations, major manufacturers, and public corporations with more than $75 million in market capitalization. Legislation now requires many of these U.S. organizations to retain certain records in a way that prevents them from being erased or modified for substantial time periods, sometimes 30 years or more. Steps must also be taken to prevent records from being accessed by those without authorization. Some of these regulations, like those based on the Sarbanes-Oxley law, are new. Others, such as SEC regulations applying to broker-dealers, have existed in one form or another since the 1930s. However, the common themes are broader regulatory purview over more types of records and substantially strengthened enforcement. The main thrust behind strengthened records-retention regulations is the government’s desire to maintain an exact record of past activities to order to improve corporate governance, protect investors, enhance national security, ensure the safety of new drugs or medical devices, and modernize medical care while protecting patient privacy."

Comment: Document retention requirements for all industries is becoming the norm.

Retention Policies

(6-8-04) E-Document Management: A Litigator Looks at Retention Policies. (COMPUTERWORLD) - "For IT professionals, top management and their lawyers, the explosion in awareness and use of electronic documents in litigation presents great challenges. For example, the widespread use of business e-mail has often required the revamping of document retention policies and the dedication of substantial resources to ensure that the enormous volume of electronic communication is properly treated from the perspective of regulatory and litigation preparedness. The problem may soon get worse with a similar explosion in the use of new communications methods such as digitized voice mail, a medium that has the potential to become as permanent and accessible as e-mail. . . "