Tag Archives: e-discovery

February 26, 2014 · 1:13 PM

Avoid SharePoint eDiscovery Headaches Before They Begin

by Barry Murphy

Sharepoint no colorLast week, this blog featured highlights from the very successful SharePoint eDiscovery webinar with Reed Smith.  It is a topic that came up time and again in my tenure as an analyst; companies and government Agencies are becoming tightly bound to SharePoint and want to be sure that eDiscovery ordeals can be avoided.

Microsoft SharePoint continues to gain widespread traction in organizations large and small.  A recent Forrester Research survey found that 66% of respondents will deploy SharePoint server in the next 12 months (source: Forrester Research August 2013 Global SharePoint Usage online survey).  The attraction to SharePoint is obvious – the system creates business benefits: enabling collaboration in efficient ways; providing ways to track versions of documents edited by multiple parties; allowing non-technical business people to apply basic workflow to content-driven processes, and providing faster access to information (via search and integration with the MS Office suite of apps).

For the value it creates, SharePoint can cause eDiscovery and information governance headaches if proper planning does not take place.  It is all too easy to assume that if information is searchable, eDiscovery will be no problem when the time comes.  But, as is often the case in life, the devil is in the details.  Because SharePoint allows users to add value to content (e.g. adding workflow tasks), there is the factor of metadata to consider.

In eDiscovery, metadata is a critical component of ESI that can wreak havoc on collection efforts.  When we talk about metadata for native ESI, we are usually concerned about the Operating System (OS) fields that are kept in the File Allocation Table (FAT). Different OS formats support a wide variety of fields such as different dates, attributes, permissions and file name formats (long vs. short). These fields are not usually stored within the actual file and so are very vulnerable to alteration or complete loss when items are read or copied. Forensic collection is focused on preserving this ‘envelope’ information so that evidence can be authenticated and the context reconstructed in court. That is only half of the metadata story. Microsoft Office and other programs retain non-displayed information within the header and body of all common file types, especially with the adoption of the XML based Office 2007 file formats.

This metadata issue is only extended with SharePoint because most collection efforts are focused only on grabbing SharePoint document libraries (as they are stored on file systems).  But SharePoint is so much more than document libraries (if it weren’t, it would simply be another file share sitting out there).

A defensible SharePoint collection solution will be able to capture document libraries, metadata, and truly enable contextual preservation.  When considering a SharePoint collection tool be sure that it:

  • Allows for incremental preservation, monitoring changes, identifying and preserving different document versions, and incrementally preserve to multiple matters over time
  • Maps to custodian access and prevent over-preservation, collecting and preserving only what is relevant to a particular custodian, not the entire SharePoint site
  • Is deployable in the same fashion as SharePoint, which tends to be highly decentralized and siloed; thus the collection solution should be deployable on-demand, directly to SharePoint sites through a highly automated, remote installation, with intuitive administration and operation performed through a standard web browser

At the end of the day, informed customers will make sure that the collection tool can get more than just SharePoint document libraries, but all metadata, as well.  Also, look for solutions that will not impact the production environment too heavily; you don’t want to bring SharePoint to its knees when it is a valuable business application.  And finally, get legal and IT together on the same page about how to reasonably prove that your SharePoint preservation and collection methodologies and tools are defensible.

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February 24, 2014 · 7:35 AM

Highlights from Reed Smith’s SharePoint eDiscovery Webinar

by John Patzakis

Reed Smith recently hosted an excellent webinar on SharePoint eDiscovery challenges, led by Patrick Burke with the firm’s eDiscovery team. The webinar featured a substantive and detailed discussion on the nuances, pitfalls and opportunities associated with eDiscovery of data from SharePoint sites. This topic is very timely as the majority of enterprises are deploying the Microsoft platform at an accelerated rate, with the solution reaching $1 billion in sales faster than any other Microsoft product in history. Burke noted that “SharePoint has exploded across corporate networks, and are filling rapidly with ESI,” but that “the bad news is that it’s not centralized. There is no single place to go to search through the ESI across an organization’s SharePoint sites to identify which SharePoint Site holds the ESI you’re looking for.”

As SharePoint enables enterprises to consolidate file shares, Intranet sites, internal message boards and wikis, project management, collaboration and more into a single platform, it provides significant operational efficiencies as well as eDiscovery challenges. The vast majority of current SharePoint deployments are versions 2007 or 2010, and neither have meaningful internal eDiscovery or even export features. This is one reason why SharePoint eDiscovery is fraught with over-collection, resulting in much higher costs and time delays that what is typically seen with other similar data stores such as email servers and file shares.

In addressing best practices for eDiscovery of SharePoint sites, Burke advised, among other key points, that the litigation hold process must not only involve individual custodians but the SharePoint administrator as well: “As it usually isn’t feasible to search all an organization’s SharePoint sites, the first step is to talk to the key custodians (through litigation hold questionnaire processes) and ask them which SharePoint sites they use (to identify) relevant ESI.” From there, “the cross-check involves talking with the SharePoint administrator, who can look up all the SharePoint sites to which the custodian’s belong.”

A full video recording of the webinar can be accessed here >

Appliance-based eDiscovery solutions or remote collections do not work as it may take weeks, if not months, to copy a multi-terabyte SharePoint site over a network connection and a large corporation may have several dozens of SharePoint silos from which to collect.  Manual collection efforts, which are geared toward mass “data dumps,” are also time consuming and are typically very costly due to the extensive processing and data massaging required to put the SharePoint data back into context.

Instead, what is needed is a solution such as X1 Rapid Discovery can quickly and remotely install and operate within the same local network domain to enable localized search, review and early case assessment in place. X1 Rapid Discovery’s full content indexing and preview of native SharePoint document libraries and lists, as well as its robust search, document filters, intuitive review interface uniquely enables targeted and contextual search, preservation and export of SharePoint evidence in its native format. In fact, we believe it is the only solution available that enables true in-place early case assessment and eDiscovery review of SharePoint sites, including iterative search, tagging and full fidelity preview in place, without the requirement to first export all of the data out of the platform.

To learn more, sign on to the recorded webinar or please contact us for a further briefing to learn how to save your organization or your clients tens of thousands of dollars on litigations costs associated with SharePoint.

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February 18, 2014 · 6:24 AM

Barry Murphy Joins the X1 Team

Last week, I said goodbye to my time at the eDJ Group, a company in good hands that will continue to provide top notch eDiscovery and information governance consulting at a level of depth very few can match.   This week begins my new adventure as Senior Vice President of Product Marketing and Strategy at X1, and I am very excited about the opportunity.

Many have asked why I chose to join X1 and I want to take this space today to explain the reasons.  As an analyst for the past four years, I have had the chance to see – up close and personal – the challenges that enterprise IT and business people are trying to address.  One that comes up consistently is the ability to quickly find information in a world where the volume of it is increasing so rapidly.  While search might seem relatively simple, I can tell you that many clients pull their hairs out due to frustration with enterprise search deployments.

Thus, the first thing that hit me about X1 was the number of X1 customers whose top point to make about that product is that “it just works.”  Business people like the ease of use and clean, single-pane-of glass view of their information, Legal teams like how X1 Rapid Discovery makes eDiscovery more efficient and less costly, and IT teams like that the product can be deployed in increasingly virtualized environments.

Part of the attraction to X1, for me, is the fact that the company can address such a range of solutions via a powerful search engine.  It is not just about eDiscovery, though there is a product for that.  Rather, X1 will power many solutions by providing easy access to information – and the company does it in a way that just works.  It makes me think back to those old BASF commercials – the ones where BASF says, “we don’t make the products you buy, we make the products you buy better.”  I get a feeling that same message can apply at X1; something along the lines of “we don’t make the cloud infrastructure, we make the cloud infrastructure better and more valuable.”

Stay tuned for more details on how X1 will make other solutions better and continue to provide great search products in 2014.  I’m looking forward to this adventure.

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February 11, 2014 · 1:28 PM

Judge Sends Facebook Friend Request, Gets Disqualified

Add_as_friendAs part of our periodic practice, we are checking in on the reported cases involving social media evidence for this past month of January. A quick tally identifies 74 cases where social media evidence played a key role last month, which continues the trend we saw with a significant upsurge in such cases in the second half of 2013. One interesting development for January involved separate cases of misconduct on the part of a judge and a prosecutor, respectively. Below is a brief synopsis of five of the more notable January cases. While improper juror social media use is a common occurrence in the cases we monitor, the first two of the five highlighted January cases involved judicial and prosecutorial misconduct allegations from their Facebook activities:

Chace v. Loisel (Florida Court of Appeal, Jan. 24, 2014)  2014 WL 258620

In this Florida divorce case, the judge presiding over the matter sought to “friend” one of the parties, Sandra Chace, who had filed for divorce from her husband. The judicial friend request came prior to the final ruling in the martial dissolution proceeding. Upon advice of counsel, Chace declined to respond to the invitation. Thereafter, the court entered a final judgment of dissolution, with terms that Chace believed were highly unfavorable to her. Following entry of the final judgment, Chace filed a formal complaint against the judge, alleging that the court sent her a Facebook “friend” request and then retaliated against her after she did not accept the request. Chace also filed a motion with the judge for him to be disqualified, which was summarily denied.

Chace appealed the denial of the disqualification motion and the Florida appellate court granted the appeal, disqualified the judge and remanded for further hearings to address the previous rulings, which were arguably tainted. The appellate court explained as follows:  “The trial judge’s efforts to initiate ex parte communications with a litigant is prohibited by the Code of Judicial Conduct and has the ability to undermine the confidence in a judge’s neutrality. The appearance of partiality must be avoided. It is incumbent upon judges to place boundaries on their conduct in order to avoid situations such as the one presented in this case.”

People v. Armstrong (California Court of Appeal, Jan. 13, 2014)  2014 WL 125939

After Defendant’s conviction for numerous crimes related to domestic violence against his wife, he sought reversal of judgment, alleging prosecutorial misconduct. Shortly before trial, and on the day the trial court ordered the prosecutor to make its key witness, a minor, available for an interview with defense counsel, the prosecutor posted the following comment on her Facebook page: “After I spent the day trying to prevent my 13 year-old star witness from being kidnapped, I found out I am getting the Prosecutor of the Year award from the Victims Service Center.”

The court, which characterized the Prosecutor’s Facebook post as “an incredible display of poor judgment” determined that the post appeared to violate Rule 5–120 of the California Rules of Professional Conduct, which prohibits members of the bar from making extrajudicial statements when “the member knows or reasonably should know that [the extrajudicial statement] will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” The prosecutor’s Facebook musings about her key witness presented a substantial likelihood, according to the court, of prejudicing the matter if any juror learned of the comment. However, even though the court admonished the prosecutor for her “foolishness,” the court found no prejudice actually occurred in this instance, thereby not justifying a mistrial.

Rodriguez v. Bank of America (U.S. Dist. Ct., Texas, Jan.  28, 2014)  2014 WL 309065

Plaintiff brought a mortgage-related lawsuit against a major lender for wrongful foreclosure and deceptive trade practices. In opposing Defendant’s summary judgment motion, Plaintiff submitted the LinkedIn profile of the bank employee who signed the deed of trust that conveyed Plaintiff’s mortgage to Countrywide Home Loans, the foreclosing bank. The LinkedIn profile reflected that the employee was not employed by Countrywide, but by another bank at the time the mortgage instrument was signed. However, the district court disallowed the LinkedIn evidence, without significant comment, on the grounds that the Plaintiff failed to properly authenticate the LinkedIn profile.

United States v. Sheikh (U.S. Dist, Ct., North Carolina, Jan. 10, 2014)  2014 WL 6050324

The Government charged Defendant with attempting to provide material support to a terrorist organization, and the Defendant sought a bail hearing for release prior to his trial. Defendant’s social media postings and activity formed the bulk of the evidence cited at the hearing.  Specifically, a FBI agent presented Facebook postings reflecting “that the defendant is comfortable with extreme violence.” Additionally, an undercover FBI agent engaged in conversations with the defendant, where he asserted that he held the al-Nusrah group in high esteem, that he was aware of their terrorist activity and wished to join them and “die a martyr.” In denying bail and pre-trial release, the court citied the Defendant inflammatory social media postings and communications as key evidence.

CrossFit, Inc. v. Alvies (U.S. Dist. Ct., California, Jan. 22, 2014)  2014 WL 6150799

Plaintiff CrossFit, Inc. (“CrossFit”) brought suit for trademark infringement, among other claims. As with seemingly the majority of current trademark, false advertising and other unfair business practices claims, social media formed a large bulk of the evidence. In fact for this case, the entirety of CrossFit’s claims were based upon the content of the Defendant’s Facebook page, which allegedly violated CrossFit’s registered trademarks throughout, culminating in a contentious takedown notice sent to Facebook pursuant to the Digital Millennium Copyright Act (“DMCA”), which Facebook obliged.

This survey group for January only involves published cases on Westlaw. With less than one percent of total cases resulting in published opinions, and considering this data set does not take into account internal or compliance investigations or non-filed criminal cases, we can safely assume that there were tens of thousands more legal matters involving social media evidence that were adjudicated, or otherwise resolved last month alone. Without question, the deluge of social media cases continues.
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For more information about X1 Social Discovery, the leading social media discovery solution, please visit here.

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February 5, 2013 · 9:24 AM

Social Media Discovery Hotter Than Predictive Coding?

fire isolated over black backgroundIt was a great show last week at LegalTech New York. Definitely an increase in the number and quality of attendees and it was nice to see many friends and colleagues both old and new.

Also very noticeable were the many, many vendors sporting predictive coding (aka technology assisted review) messaging in their respective booths and various forms of marketing material. In fact, one industry colleague pointed me to a recent bold prediction offered by Recommind lawyer Howard Sklar, essentially proclaiming that predictive coding will have really hit the big time when a state bar organization issues an ethics opinion stating “that failure to use predictive coding is ethically questionable, if not unethical.” Sklar goes on to predict that such an opinion will come within the next 18 months.

I don’t disagree that such a development would be a big deal. But my question is, why stop at an advisory ethics opinion? What about an actual published court opinion where a sitting appellate judge decrees, without mincing words, that legal ethics obligations require lawyers to employ predictive coding? Now that would be huge. Something, in fact, like Griffin v. State, 192 Md. App. 518, 535 (2010), which addresses another hot topic in eDiscovery:

“[I]t should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.”

Now to be fair, I must point out that Griffin v. State was reversed and remanded on other grounds (419 Md. 343 (2011)), but I would argue the overall impact from an ethics and best practices standpoint is still there.

Sklar also points out three appellate level cases with written opinions that discuss the concept of predictive coding, without any definitive rulings compelling its use, but nonetheless discussing the concept. Two of the three are even retrievable on Westlaw. I think such appellate-level published decisions are important, which is why we highlight the several thousands of published court decisions in the past three years (see here and here) that have compelled the production of, admitted into evidence, or otherwise recognized the importance of social media evidence to the case at hand. New cases are being published every day, to the point where we candidly have stopped counting due to the deluge. So by the standard set by of my esteemed fellow eDiscovery lawyer Mr. Sklar, social media discovery is a very hot field indeed.

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