Category Archives: Best Practices

March 6, 2019 · 10:16 AM

GDPR Fines Issued for Failure to Essentially Perform Enterprise eDiscovery

By John Patzakis

The European General Data Protection Regulation (GDPR) came into full force in May 2018. Prior to that date, what I consistently heard from most of the compliance community was general fear and doubt about massive fines, with the solution being to re-purpose existing compliance templates and web-based dashboards. However, many organizations have learned the hard way that “paper programs” alone fall far short of the requirements under the GDPR. This is because the GDPR requires that an organization have absolute knowledge of where all EU personal data is stored across the enterprise, and be able to search for, identify and remove it when required.GDPR-stamp

Frequent readers of this blog may recall we banged the Subject Access Request drum prior to May 2018. We noted an operational enterprise search and eDiscovery was required to effectively comply with many of the core data discovery-focused requirements of GDPR. Under the GDPR, a European resident can request — potentially on a whim — that all data an enterprise holds on them be identified and also be removed. Organizations are required to establish a capability to respond to these Subject Access Requests (SARs). Forrester Research notes that “Data Discovery and classification are the foundation of GDPR compliance.” This is because, according to Forrester, GDPR effectively requires that an organization be able to identify and actually locate, with precision, personal data of EU data subjects across the organization.

Failure to respond to SARs has already led to fines and enforcement actions against several companies, including Google and the successor entity to Cambridge Analytica. This shows that many organizations are failing to understand the operational reality of GDPR compliance. This point is effectively articulated by a recent practice update from the law firm of DLA Piper on the GDPR, which states: “The scale of fines and risk of follow-on private claims under GDPR means that actual compliance is a must. GDPR is not a legal and compliance challenge – it is much broader than that, requiring organizations to completely transform the way that they collect, process, securely store, share and securely wipe personal data (emphasis added).”

These GDPR requirements can only be complied with through an effective enterprise eDiscovery search capability:

To achieve GDPR compliance, organizations must ensure that explicit policies and procedures are in place for handling personal information, and just as importantly, the ability to prove that those policies and procedures are being followed and operationally enforced. What has always been needed is gaining immediate visibility into unstructured distributed data across the enterprise, through the ability to search and report across several thousand endpoints and other unstructured data sources, and returning results within minutes instead of days or weeks. The need for such an operational capability is further heightened by the urgency of GDPR compliance.

X1 Distributed GRC represents a unique approach, by enabling enterprises to quickly and easily search across multiple distributed endpoints and data servers from a central location.  Legal and compliance teams can easily perform unified complex searches across both unstructured content and metadata, obtaining statistical insight into the data in minutes, instead of days or weeks. With X1, organizations can also automatically migrate, collect, delete, or take other action on the data as a result of the search parameters.  Built on our award-winning and patented X1 Search technology, X1 Distributed GRC is the first product to offer true and massively scalable distributed searching that is executed in its entirety on the end-node computers for data audits across an organization. This game-changing capability vastly reduces costs while effectuating that all-too-elusive actual compliance with information governance programs, including GDPR.

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February 20, 2019 · 9:01 AM

5 Key Takeaways From The Sedona Conference’s Social Media eDiscovery Primer

By John Patzakis

The Sedona Conference® (“TSC”) has just published the 2nd edition of their very useful Primer on Social Media. Sedona is a very influential organization so this is an important development further underscoring the importance of social media evidence. According to TSC, the Primer series “provides best practice guidance on the corporate use and management of social media, as well as their preservation, collection, and production in the form of electronically stored information (ESI).”images - sedona

The 93 page second edition is a valuable resource and a must read for every legal and eDiscovery practitioner who address social media evidence. For purposes here, I have outlined 5 particularly interesting takeaways:

  1. Attorney’s Duty of Competency Requires Focus on Social Media Evidence

TSC’s Primer notes that “ethics rules require lawyers to understand the impact and consequences of social media,” and that “Counsel is responsible for reasonably investigating client social media content to identify relevant information and provide oversight of the search and production of such information. (at pg. 26).”  The Primer tracks and cites ABA model ethics Rule 1.1[8], noting that “counsel must be competent (or partner with a competent lawyer) to facilitate appropriate discovery of [social media evidence]. (at pg. 27)”

The Primer also features a good discussion of Lester v. Allied Concrete Company, where the plaintiff’s attorney did not meet his ethical obligations and instead blithely instructed his client to rid his Facebook page of damaging evidence, resulting in what many attorneys believe is the most severe eDiscovery court sanction imposed upon a lawyer. As the Primer reinforces, social media is highly relevant as evidence, and it is thus important that attorneys, paralegals, eDiscovery consultants and investigators proactively seek out such evidence, ensure its preservation, and include the investigation in their standard processes and checklists.

  1. Static “Print Screen” Captures are Problematic

As we have noted many times on this blog, print screen is not best practices for collection social media and other web-based evidence. TSC’s Primer provides important guidance on this point: “Printing out social media data has its evidentiary limitations, as a static image does not capture the metadata of the image, other than whatever information may be viewable as part of the screen shot. As a result, static images may result in an incomplete and inaccurate data capture that is hard to authenticate,” and that “[a]ny such collection will most likely be a visual representation that does not include metadata, logging data, or other information that would allow the content to be easily navigated and used. (at pp 45-46)”

  1. Extensive Discussion of Evidentiary Authentication for Web-based Evidence and Rule 902(14)

Noting that “[a]uthenticity is a key issue that a court must consider in determining the admissibility of social media evidence,” the Primer dedicates an entire section to the subject. This section features a good overview of case law, summarizing that “courts generally seem to agree that the mere testimony of the person who downloaded or printed out social media content, without more, is insufficient to establish its authenticity.” As such, the Primer advises that “parties proffering social media content should make sure they develop and present foundational evidence beyond simply printing or down-loading the content from the internet.” (at pp 85-86).

Among the authentication methods outlined by the Primer is Federal Rule of Evidence 902(14), which provides that electronic data recovered “by a process of digital identification” is to be self-authenticating. The Primer notes that with a proper social media collection process, FRE 902(14) will enable most litigants to utilize written certifications instead of costly trial testimony of a forensic or technical expert. But again, only where best practices are employed. For more resources, this blog has extensively addressed FRE 902(14). (See here).

  1. Negative Peer Review of Facebook’s DIY Function

When considering what constitutes best practices for collection of electronic evidence, courts and counsel generally look to industry peer review and publication under the Daubert Standard, which includes those factors, among others, as a framework for judges to determine whether scientific or other technical evidence is admissible in federal court. Sedona Conference publications are among the most important peer review in the eDiscovery world, so it is notable that the Primer says this about Facebook’s built in “Download Your Information” function:

Although the information from the Facebook download can perhaps be used as evidence in particular situations, it may be it may be preferable to have a vendor obtain the data with the appropriate tools for accessing and then reviewing the information in a manner that includes available metadata.

The Primer goes on to outline how certain data may be omitted by Facebook’s DIY and thus and the use of provider-controlled export tools, “may raise preservation and collection issues,” and that as those tools are often modified or updated without notice or documentation “the frequent changes to the export tools pose some risk that counsel should consider.” (at pp 47-48)

  1. Positive Peer Review Mention of X1 Social Discovery

The Primer does offer positive peer review of technical solutions for social media eDiscovery, noting that “Vendors have developed technology to allow certain content to be collected in a way that preserves the content and captures various metadata fields associated with social media data. Properly captured, these metadata fields can assist with establishing the chain of custody and authentication. They can also help to facilitate more accurate and efficient data processing and review.”

In the same section, The Primer provides this description of X1 Social Discovery affirming industry general acceptance:

“One of the popular social media discovery collection tools is X1 Social Discovery, which has API collection tools for Facebook, Twitter, YouTube, Instagram, and Tumblr, along with the capability to collect webpages and email from other providers.” (at pg. 49).

A full copy of TSC’s Primer on Social Media can be accessed here.

For more information on X1 Social Discovery, please see here.

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Filed under Authentication, Best Practices, eDiscovery, Preservation & Collection, Social Media Investigations, Social Media Metadata

February 7, 2019 · 9:15 AM

New York Appellate Court Allows “Data Mining” of Social Media accounts for Relevant Information

By John Patzakis

The New York Appellate Division allowed discovery into the non-public information of the social media accounts of a former professional basketball player relevant to his personal injury claims arising out of an automobile accident. In Vasquez-Santos v. Mathew 2019 NY Slip Op 00541 (January 24, 2019), the court held that the defendant may utilize the services of a “data mining” company for a widespread search of the plaintiff’s devices, email accounts, and social media.social-media-cases3

Vasquez-Santos is an extension of a large body of court decisions that allow discovery of a user’s “private” social media messages, posts and photos where that information is reasonably calculated to contain evidence material and necessary to the litigation. Private social media information can be discoverable to the extent it “contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims” according the Vasquez-Santos Court.

The Court found that the defendant “is entitled to discovery to….defend against plaintiff’s claims of injury,” and noted that the requested access to plaintiff’s accounts and devices “was appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities.”

Also noteworthy was the Court’s finding that while plaintiff did not take the pictures himself, that was of no import to the decision. He was “tagged,” thus allowing him access to the pictures, and thus populated his social media account.

This decision is consistent with the general rule that while social media is clearly discoverable, there must be a requisite showing of relevance before the court moves to compel full production of a litigant’s “private” social media.

This case illustrates that any solution purporting to support eDiscovery for social media must have robust public search and collection capabilities. This means more than merely one-off screen scrapes but instead an ability to search, identify and capture up to thousands of social media posts on an automated and scalable basis.

X1 Social Discovery has the ability to find an individual’s publicly available content and to collect it in an automated fashion in native format with all available metadata intact to enable systematic and scalable search, review, tagging and analysis. We heard from one major law firm that screen captures of a single public Facebook account took several hours, with the resulting images not searchable or organized into a case-centric workflow. Now with X1 Social Discovery, they are able to accomplish this full capture in seconds. This is critically important to conduct proper due diligence on a case and to better assist legal and investigative professionals to make the requisite showings for the full discovery of social media evidence in civil discovery, as in Vasquez-Santos.

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Filed under Best Practices, Case Law, Case Study, eDiscovery, law firm, Social Media Investigations

December 10, 2018 · 10:39 AM

In addition to TAR, CAR Can Dramatically Reduce Attorney Review Costs

eDiscovery efforts are often costly, time consuming and burdensome. The volume of Electronically Stored Information is growing exponentially and will only continue to do so. Even with the advent of technology assisted review (TAR), the costs associated with collecting, processing, reviewing, and producing documents in litigation are the source of considerable pain for litigants. The only way to reduce that pain to its minimum is to use all tools available in all appropriate circumstances within the bounds of reasonableness and proportionality to control the volumes of data that enter the discovery pipeline.

Litigators and commentators often pine for the advent of a systemized, uniform and defensible process for custodian self-collection. Conceptually, such an ideal process would be where custodians are automatically presented with a set of their documents and emails that are identified as potentially relevant to a given matter through a set of keywords and other search parameters that are uniformly applied across all custodians. This set of ESI would be presented to the custodian in a controlled interface with no ability to delete documents or emails, and only the ability to review and apply tags and annotations. The custodian would have to comply with the order and all documents responsive to the initial unified search would be collected as a default control mechanism.

With X1 Data Audit and Compliance (XDAC), the option for a defensible custodian assisted review (CAR) is now a reality. At a high level, with XDAC, organizations can perform targeted search and collection of the ESI of thousands of endpoints over the internal network without disrupting operations. The search results are returned in minutes, not weeks, and thus can be highly granular and iterative, based upon multiple keywords, date ranges, file types, or other parameters. This approach typically reduces the eDiscovery collection and processing costs by at least one order of magnitude (90%), thereby bringing much needed feasibility to enterprise-wide eDiscovery collection that can save organizations millions while improving compliance. XDAC includes X1 Insight and Collection for pure eDiscovery use cases.

As a key optional feature, XDAC provides custodian assisted review, where custodians are presented with a listing of their potentially relevant ESI in a controlled, systemized and uniform identification process for their review and tagging. Instead of essentially asking the custodians to “please rummage through your entire email account and all your documents to look for what you might think is relevant to this matter,” the custodians are presented with a narrow and organized subset of potentially relevant ESI for their review.

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While the custodians are able to assist with the review, they cannot impact or control what ESI is identified and preserved; this is controlled and managed centrally by the eDiscovery practitioner. This way, custodians can apply their own insight to the information and even flag personal private data, all while effectuating very cost-effective and systematic ESI collection.

Powerful Analytics Engine

TAR features powerful algorithms that cluster documents and otherwise work their magic. CAR also relies on a powerful analytics engine — the human brain. Custodians know a lot about their own documents and emails. This is particularly true in technical or other complex matter where the custodians are engineers or other professionals who simply better understand the dynamics and the nuances of their information. With the X1 process, the custodians provide a key data point, where their input is used to inform the secondary review.

The process is very defensible as the exercise is logged and documented, with all metadata kept intact and a concise chain of custody established. Best of all, the custodian-applied tags and annotations are preserved and retained through the review process with X1 integration with Relativity. I could describe this very important feature a lot further, but candidly the best way to get a full picture is to see it for yourself. I recommend that you view this recorded 9 minute demonstration of X1’s custodian self-review feature here.

We believe X1’s functionality provides the optimal means for enterprise eDiscovery preservation, collection and early data assessment, especially with the key additional (and optional) feature of custodian assisted review. But please see for yourself and let us know what you think!

 

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Filed under Best Practices, compliance, Desktop Search, eDiscovery & Compliance, Enterprise eDiscovery

November 26, 2018 · 10:17 AM

eDiscovery Collection 3.0: Much Better, Much Faster, Much Cheaper

In his recent blog post, X1 CEO Craig Carpenter discussed the inability of any software provider to solve a critical need by delivering a truly scalable eDiscovery preservation and collection solution. As Craig pointed out, in the absence of such a “holy grail” solution, eDiscovery collection remains dominated by either unsupervised custodian self-collection or manual services, driving up costs while increasing risk and disruption to business operations.

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Craig outlined how endpoint forensic imaging are still employed on a limited basis. Many companies have also tried network crawling methods with repurposed forensic tools. (A “collection 2.1” method, if you will).  While this can be feasible for a small number of custodians, network bandwidth constraints coupled with the requirement to migrate all endpoint data back to the forensic crawling tool renders the approach ineffective. For example, to search a custodian’s laptop with 10 gigabytes of email and documents, all 10 gigabytes must be copied and transmitted over the network, where it is then searched, all of which takes at least several hours per computer. So, most organizations choose to force collect all 10 gigabytes. The case of U.S. ex rel. McBride v. Halliburton Co.  272 F.R.D. 235 (2011), illustrates this specific pain point well. In McBride, Magistrate Judge John Facciola’s instructive opinion outlines Halliburton’s eDiscovery struggles to collect and process data from remote locations:

“Since the defendants employ persons overseas, this data collection may have to be shipped to the United States, or sent by network connections with finite capacity, which may require several days just to copy and transmit the data from a single custodian . . . (Halliburton) estimates that each custodian averages 15–20 gigabytes of data, and collection can take two to ten days per custodian. The data must then be processed to be rendered searchable by the review tool being used, a process that can overwhelm the computer’s capacity and require that the data be processed by batch, as opposed to all at once.”

Halliburton represented to the court that they spent hundreds of thousands of dollars on eDiscovery for only a few dozen remotely located custodians. The need to force-collect the remote custodians’ entire set of data and then sort it out through the expensive eDiscovery processing phase, instead of culling, filtering and searching the data at the point of collection drove up the costs. As such, this network crawling based architecture is fundamentally flawed and cannot scale.

What is needed is the ability to gain immediate visibility into unstructured distributed data across the enterprise, through the ability to search and collect across several hundred endpoints and other unstructured data sources such as file shares, and return results within minutes instead of days or weeks. The approaches outlined above and by Craig Carpenter do not come close to meeting this requirement and in fact actually perpetuate eDiscovery pain.

Solving this collection challenge once and for all is basis for X1 Insight and Collection, which is our eDiscovery collection 3.0 solution.  X1 Insight and Collection (XIC) enables enterprises to quickly and easily search across up to thousands of distributed endpoints and data servers from a central location.  Legal and compliance teams can easily perform unified complex searches across both unstructured content and metadata, obtaining statistical insight into the data in minutes, and full results with completed collection in hours, instead of days or weeks. Built on our award-winning and patented X1 Search technology, XIC is the first product to offer true and massively scalable distributed data discovery across an organization. XIC replaces expensive, cumbersome and highly disruptive approaches to meet enterprise discovery, preservation, and collection needs.

Targeted and iterative end point search is a quantum leap in early data assessment, which is critical to legal counsel at the outset of any legal matter. However, under today’s industry standard, the legal team is typically kept in the dark for weeks, if not months, as the manual identification and collection process of distributed, unstructured data runs its expensive and inefficient course.  To illustrate the power and capabilities of XIC, imagine being able to perform multiple, detailed, Boolean keyword phrase searches with metadata filters across the targeted end points of your global enterprise. The results start returning in minutes, with granular statistical data about the responsive documents and emails associated with specific custodians or groups of custodians.

Once the legal team is satisfied with a specific search string, after sufficient iteration, the data can then be collected by XIC by simply hitting the “collect” button. The responsive data is “containerized” at each end point and automatically transmitted to either a central location, or uploaded directly to Relativity, using Relativity’s import API where all data is seamlessly ready for review. Importantly, all results are tied back to a specific custodian, with full chain of custody and preservation of all file metadata. Here is a recording of a live public demo with Relativity, showing the very fast direct upload from XIC straight into RelativityOne.

This effort described above — from iterative, distributed search through collection and transmittal straight into Relativity from hundreds of endpoints — can be accomplished in a single day. Using manual consulting services, the same project would require several weeks and hundreds of thousands of dollars in collection costs alone, not to mention significant disruption to business operations. Substantial costs associated with over-collection of data would mount as well, and could even dwarf collection costs through unnecessary attorney review time.

XIC operates on-demand where your data currently resides — on desktops, laptops, servers, or even the cloud — without disruption to business operations and without requiring extensive or complex hardware configurations. Beyond enterprise eDiscovery and investigation functionality, organizations can offer employees the award-winning X1 Search, improving productivity while maintaining compliance.

As Relativity Product Manager Barry O’Melia said in the live X1/R1 integration demo, it is something you have to see for yourself to believe. So please check out the demo here, or contact us to arrange for a private demo.

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Filed under Best Practices, Case Law, Case Study, eDiscovery, Enterprise eDiscovery, Uncategorized