You may not know it, but the bill H.R. 4115 poses a serious threat to businesses unprepared for litigation and business e-discovery. Simply put H.R. 4115 is a bill that will reduce the number of motions to dismiss because it forbids courts to dismiss complaints until it can be proved beyond reasonable doubt that the plaintiff has no facts to back their claim regardless of how much evidence they have at the time they make the claim. Basically a plaintiff could come forward with some absurd conspiracy theory but a court would be required to see through the extensive litigation, e-discovery, and investigation until it the plaintiff was proven wrong.
Because of this bill, even if the plaintiff has no evidence or fact to back their claim, for every case the party in question must engage in an expensive and tumultuous e-discovery process. Due to the lack of efficient e-discovery methods this process can cost companies millions of dollars in a single case. These towering e-discovery costs have forced companies to turn to settlement before the process even begins. This shows that, regardless of the validity of the claim, the ediscovery could cost more than the settlement. This opens windows of opportunity for manipulation; plaintiffs could use pure theory to force an e-discovery proccess that could, simply out of luck, find evidence they didn't know existed, or they could even use the threat of an e-discovery process as a form of initimidation to force a settlement. If this bill is passed, every case brought before a court could subject companies to massive e-discovery or settlement costs.
In an interview with David Lender in the Metropolitan Corporate Counsel he stated "The concern about e-discovery costs is compounded by the fact that those costs are frequently incurred under circumstances where clients feel they did nothing wrong, yet they face multiple millions of dollars of potential discovery costs." In the same interview he also revealed that cases today are being forced to settlements after daunting e-discovery processes became part of the equation. In fact, there are less and less actual trials due to the costs of litigation, a lot of which SHOULD be decided by a court and jury -- yet the expenses make it nearly impossible to come out of that situation without significant losses.
Lender said in the same interview, "we need to get control over the e-discovery process by changing the mindset to a focus on discovering the core documents, and not everything under the sun. Until we do this, there will be fewer trials because the cost of e-discovery is overwhelming the incentive to try cases." If H.R. 4115. is passed, e-discovery and case settlement will become even more dangerous to businesses than they are today. Yet not all hope is lost, you can prepare for the risk of an expensive ediscovery process by using the right e-discovery solution. Even if H.R. 4115. isn't passed, improper e-discovery is a serious threat to your business, but if you're prepared, litigation won't be nearly as threatening as you think.
Download the Free White Paper: Why Use Cloud-Powered Hosted Email Archiving, In it, you will find the answers to: Why you should archive your content? Why hosted archiving makes sense? and What are the key issues to consider in selecting a vendor?
According to Jeffrey Fehrman at his blog EDD blog online there has been more development in the Toyota litigation process. The judge of the multi-district litigation (MDL) process approved a joint discovery agreement in order to avoid disagreements in available evidence. This agreement allows Toyota's lawyers to investigate the vehicle while allowing plaintiffs' attorneys to depose executives about the faulty throttle. This is what Toyota had to say in a prepared statement.
"We are pleased that the court has approved the agreement we reached with plaintiffs' counsel that establishes an equitable discovery process for this complex litigation. Toyota looks forward to defending this case, and we are confident that reliable scientific evidence will demonstrate the safety of our vehicles."
After the 8 million car recalls, there are over 200 lawsuits against Toyota in this MDL. Most of the lawsuits involve the financial losses involving the recall of the vehicle. The remainders are for bodily harm and deaths caused by these faulty accelerator pedals.
To explain their own side of the story and the reasons behind the pedals malfunctioning they issued this statement:
"Toyota's own vehicle evaluations have confirmed that the remedies it developed for sticking accelerator pedal and potential accelerator pedal entrapment by an unsecured or incompatible floor mat are effective. We have also determined a number of other reasons for customer concerns about unintended acceleration, including cases where an increase in engine speed is normal, such as engine idle up, as well as pedal misapplication. In no case have we found electronic throttle controls to be a cause."
Read more about eDiscovery.
From file cabinets and walls upon walls of backup tapes, the future is here with email archiving. Because the vast majority of business communication revolves around email, there is a rapidly decreasing demand for paper and tape indexing services. Yet this is not to say keeping records of communications isn't necessary, on the contrary, it is more critical than ever to keep an efficient and organized index of documents and emails. Hosted email archiving captures all emails inbound and outbound, and indexes them in a searchable and convenient data base.
Incorporating these services can protect your organization in a multitude of ways.
Three Benefits of Email Archiving
1) Disaster Recovery
Imagine the unfortunate circumstances of a major network failure: a rainstorm flooding your basement server room, a fire in your office building, any kind of disaster could be devastating if all your records and data is wiped. Hosted archiving keeps all your email safe in multiple offsite locations, Sonian archives it in the cloud. By doing this, your data is safe and can be easily retrieved if disaster recovery is needed.
2) Government Compliance
How does an email archive for compliance benefit your company? What if certain records and business documents are required for an ongoing investigation? You will have to dig through backups to recover those documents - most likely a string of emails. Your IT department will suffer if they have to waste valuable time on sifting through records in an unorganized index of backup tapes. A failure to produce these records, or emails, in the given amount of time, or a failure to produce them at all, will result in costly legal action. To avoid this catastrophe a hosted email archiving solution does not only protect your emails, but allows for simple and quick location of each email. With google-like search capabilities your IT department will locate these records in minutes. Crisis averted.
3) eDisovery
The indexing and eDiscovery capability of hosted email archiving can prevent lawsuits, but what about easing the burden for employees? Accidentally deleting emails or losing attachments happens to everyone, but recovering those files can be difficult for the unprepared. Hosted email archiving and eDiscovery can quickly search and recover lost files avoiding another taxing process for the IT department. Law firms use eDiscovery and archiving for litigation and managing emails for cases. While companies often use email archiving to manage the volume of their data while also creating a searchable index of communications.
BP's Deepwater Horizon Oil Spill has oozed its way through the media pipeline and onto our homepages. 62 Days of disaster has left plenty of time for the public to react. First it was disbelief in the sheer magnitude of the disaster, disbelief turned to shock, shock turned to anger, anger turned to outrage, outrage to protest, and as time continues to tick by with no solution in site, this sticky situation has become almost comical with witty protesters like @BPGlobalPR adding to the outcry [#bpcares]. For BP, the fossil fueled flotsam of this disaster will be impossible to burn off, and once they put a cap on this leak, all focus will shift to the repercussions.
BP will face one of the largest eDiscovery processes ever. Attorney Tom O’Connor, eDiscovery expert and founder and director of the New Orleans-based Gulf Coast Legal Technology Center, told Christy Burke of Legal IT Professionals that BP will need to focus on data preservation/collection/backup tape remediation for “massive amounts of data, perhaps more than any other case in US litigation history.” This will take place due to the eDiscovery requests from the over 100 lawsuits already filed against BP.
This will most likely prove to be the ultimate example of why companies, especially global enterprise companies, need to have a robust eDiscovery strategy in-place. New technology in email archiving is providing opportunities for companies, large and small, to streamline their eDiscovery processes from the current snails pace status-quo and probably save thousands, if not millions, of dollars in the process. The price tag put on BP's eDiscovery alone is estimated at over $100 Million dollars. Why not cut that price tag down by implementing a more efficient eDiscovery service?
A recent Deloitte Forensic Center survey found that 62%, or nearly two-thirds of the respondents, are concerned about e-discovery challenges posed by social media.
The survey also revealed additional insights into e-discovery preparedness:
- 25% report their companies are not prepared to respond to an e-discovery request.
- Almost half of those surveyed plan to implement a e-discovery solution to be proactive in this area.
- And finally, only 23% of IT people think their legal departments fully understand the complexities of servicing e-discovery requests.
"I hate to break this to you, but we have a tendency for mechanical failure in accelerator pedals of a certain manufacturer on certain models. The time to hide on this one is over. We need to come clean."
These were the words of an unnamed Toyota executive in an email recently leaked to the public. This is exactly what you think it is; Toyota knew that they were manufacturing faulty and dangerous cars! This case is no longer about lazy executives who took shortcuts, overlooked faults, and unintentionally endangered multitudes of people in the process; this was a deliberate cover up to try to squeeze the last dime out of this failure.
How was this email found? How else but by discovering it in the Toyota email archive. The Toyota archive had stored all of this data until the information was leaked. Without that archived email we may not have discovered that Toyota was deliberately endangering us for their own benefit.
On a side note, I ask why did it take so long for this email come to light? You would think given the length of this investigation that something like this would have been brought to the public eye by some means or another sooner than this. Now this may only be speculation but perhaps they only found that email recently, meaning they have been going through a grueling and inefficient ediscovery process. Maybe all the archives were on tapes, maybe they were poorly indexed, there are a number of reasons why the search would take this long. After so much time, labor, and resources, the investigators must pleased that buried underneath heaps and heaps of junk is an incriminating email. Toyota dropped the metaphorical murder weapon at the crime scene, they just buried it under enough garbage to stall the investigators.
So what are the consequences...
- Toyota has already had to pay $16.4 Million to the United States Transportation Department (the largest fine handed to a US automobile manufacturer)
- Now under US Law the government can fine Toyota $6,000 for every faulty car
- Currently there are 300 lawsuits pending in California alone. Given this turn of events that number is expected to increase significantly
- The fines for Toyota are now predicted to reach roughly $14 Billion
In the legal world, it seems that lawyers are pointing fingers at eDiscovery as THE key contributor to waste in cases. Electronic discovery is cited as one of the biggest money wasters in the business. There are ways to save with eDiscovery, but they are easily ignored. If the general consensus is that eDiscovery is responsible for the majority of wasted time and resources, why haven't they done anything about it?
The sad truth is roughly 70% of money spent on eDiscovery is wasted because, more often then not, lawyers are oblivious as to the efficient eDiscovery practices. Instead of acknowledging eDiscovery as a process that needs reform, the legal world calls for a reform of rules and regulations. Craig Ball, in the EDD Update, compared the current approach to eDiscovery to re-arranging chairs on the deck of the sinking Titanic, as opposed to filling the lifeboats.
It's time to catch up with the technology of today, and embrace useful eDiscovery solutions. If there is any single motivational factor encouraging lawyers to adapt, it's the high volume of digitial evidence. If lawyers continue to be lackadaisical in gathering digital information through eDiscovery, they might as well close down their practice, because a new generation of young, technologically savvy lawyers will quickly surpass their predecessors with new, faster, and less expensive eDiscovery solutions. Ultimately, either lawyers get with the eDiscovery program, or be replaced by those who don't still use stone tablets and chisels.
FINRA announced today that it is fining Piper Jaffray $700,000 for its failure to retain roughly 4.3 million emails from November 2002 to December 2008. Piper Jaffray also failed to inform FINRA of their email retrieval issues, inhibiting the firm complying with extraction requests in a timely manner.
This is not the first time Piper Jaffray was embroiled in email controversy. In november of 2002 they had been sanctioned for email retention failures by the Securities and Exchange Commission, New York Stock Exchange Regulation and NASD. Following the settlement, Piper Jaffray was required to certify that the system had been reviewed and was able to meet email retention regulations. This certification was made in March of 2003, and no technical issues or system failures were reported since then.
The failings of Piper Jaffray was brought to light after investigators requested the emails of a former employee suspected of misconduct. They produced a CD ROM with supposedly all the employee's emails. However, while reviewing the CD, FINRA discovered that there was an email absent on the CD that investigators had in hard copy form. This particular email contained content that caused the internal investigation, and resulted in the termination of the employee in question. When questioned further about the missing email, Piper Jaffray conceded and admitted that they experienced email retrieval and retention problems across the firm since 2002.
What did we learn from this? In the case of Piper Jaffray's: just ONE lost email can lead to catastrophic ramifications. So... ARCHIVE EVERYTHING.
Cost, efficiency, and productivity, are all factors today's businessman takes into account when trying to achieve success. Striving to perfect the formula for success, while simultaneously dealing with hiccups in the business engine, is a difficult task, but one that must be faced everyday.
There are always the wild cards, the unforeseen disasters, legal inquiries, and other business phenomenon that must be dealt with in order to return business to normal. These situations cost companies time, money, manpower, and effort, and this strain on resources can cripple a company.
At Sonian we find the most common of these emergencies to be eDiscovery (granted we are an email archiving and eDiscovery company). There have been a number of email archiving (or lack of email archiving) disasters in the news recently: the Bush administration lost over 22 million emails, FINRA fined Metlife $1.2 Million, and just last month there was a developing story about email issues in the White House.
Any search for digital information for evidence in civil or criminal legal cases, is Electronic Discovery, or e-Discovery. If not prepared, looking for archived emails, files, attachments, etc. can be one of the more costly and time consuming jobs your company, and more specifically your IT department, will have to undertake. To prevent this catastrophe, companies are looking toward solutions and software to deal with email archiving and retrieval, but just sifting through all the information out there regarding email archiving and eDiscovery can be a monumental task within itself. If you are in need of some guidance, here is a simple checklist to follow when evaluating email archiving software solutions:
- Is the software installation quick and easy?
- Is there a simple and intuitive user interface?
- Does the software include comprehensive search capabilities and options?
- Are there real time features? Such as setting up reoccurring future searches?
- Can the software save and organize in multiple formats? pdf, outlook folder, desktop, etc.
By adopting a solution incorporating these features, and adopting it BEFORE the legal need arises, organizations everywhere can minimize there legal risk when it comes to digital information and eDiscovery.
There are two major data management issues that revolve around the dilemma of whether to archive everything, or nothing at all. Each side has apparent benefits and draw backs, but choosing each extreme will most likely end your organization in an unfortunate situation.
A lot of companies, that practice some sort of back up and indexing system, ultimately save everything - forever. While the better-safe-than-sorry approach may theoretically prevent losing critical information or saving information for HR investigations, the reality is that all this data is lost in a complex and overloaded index. So while IT professionals are struggling to keep up with the data, when the time actually comes to retrieve an email or an attachment, it could take weeks when you only have days.
On the other hand, some companies find themselves practicing "underground archiving." Underground archiving is most often caused by strict retention policies where emails are deleted or moved before the end user is done with it. In this situation, the company will delete or archive that email. However, because the user still wants ready access to the file, they create personal archives such as a PST file or other "makeshift" solution. These can cause a number of problems, from creating a serious burden on the email client, to privacy, ediscovery, and retrieval issues.
However, email archiving isn't a give and take scenario. In reality, archiving solutions can give the benefits of saving everything, while also giving ready access to emails in the archive through advancing eDiscovery solutions. Thanks to evolving technology and solutions like cloud-powered email archiving, the decision to archive doesn't have to be a difficult one.
Download the Free White Paper: Why Use Cloud-Powered Hosted Email Archiving, In it, you will find the answers to: Why you should archive your content? Why hosted archiving makes sense? and What are the key issues to consider in selecting a vendor?