Your Search System Could Keep You Out of Jail

Jul 07, 2008

July/August 2008 Issue

Are you sure that the search system you’re using will satisfy the requirements of the Federal Rules for Civil Procedures (FRCP) regarding electronically stored information (ESI)? If your first reaction is "not more acronyms," I feel your pain. Vendors create acronyms faster than they upgrade their products. So let’s start with the meaning of the FRCP, focusing on the amendments regarding ESI that went into effect on Dec. 1, 2006.

First, vendors didn’t invent FRCP. The FRCP are rules governing civil procedures, applying in U.S. district courts, where civil suits are tried. These rules are promulgated by the Supreme Court pursuant to the "Rules Enabling Act," and are approved by Congress. Without getting into even more mind-numbing legalese, the 18-month-old ruling simply requires electronically stored information (of all kinds) to be discoverable in a lawsuit. The ruling also sets down some guidelines about how to produce this information and how attorneys from both sides may negotiate access to electronic evidence.

The key point is the electronic nature of the information. ESI includes any information that can be stored and retrieved electronically. "Any" means office documents, HTML files, email, instant messages, metadata on podcasts, and all other electronic formats. Further, it doesn’t matter where the information is. It can be on your website, on your intranet, on computer hard drives, in email files backed up on tape reels stored in Iron Mountain vaults, and so on. Finally, you are allowed days, not weeks or months, to deliver this information. If it looks to a judge and jury that you are not producing incriminating evidence or that you do not have your ESI systems under control, then you can be found in contempt—or worse—even if your firm is innocent of the original charges.

Is text searching the only, or even the most important, element of an e-discovery plan? IT billing rates are high, but legal billing rates are even higher. Do you even have an e-discovery plan enabling IT to comply with FRCP expeditiously? To learn more, I asked a cross section of search system and e-discovery vendors: Attenex, ISYS, and Google. These vendors agree there are four key elements to successful e-discovery programs: broad file format (and language) support, text analytics, reach (finding information wherever it resides), and a well-defined and tested process for executing your plans. E-discovery is both a business problem and a technology problem.

You must be able to find and review information no matter what its file format or language. If you switched from Corel Office to Microsoft Office, for example, you’d better be sure you can find key documents in both formats. David Haucke, VP of global marketing for ISYS, said that you must be able to search "standard and legacy formats, structured and unstructured, and both text and fields as in an email." Haucke asserts that successful forensic searching requires indexing "Everything, including formats the search system doesn’t natively understand." He also says that even with provisions against forensic "fishing expeditions," your systems must be able to work with archiving systems, since that is where most of your information likely resides.

Mike Kinnaman, VP of marketing at Attenex, emphasizes the need for text analytics, since conventional search system queries may return mountains of documents. Paying attorneys to review each of the results will likely take more time than you have and will break the bank. Instead, Kinnaman stresses the importance of your search systems to help "review, assess, and understand the content of the data after you conduct the initial collection." Reviewing your data can reduce legal review costs as well as help develop proactive case strategies.

Finally, even search giant Google asserts that the e-discovery problem is so complex that it is working with partners. Sundar Raghavan, product marketing manager for Message Security and Compliance, says, "We see archiving as the foundation for later stages of the process, and are actively working with partners in the e-discovery ecosystem to ensure that data from our solutions can be imported into other technologies."

So, can search systems keep you out of jail? At this point, you’d probably settle for keeping yourself out of the archive vault nights and weekends when that inevitable e-discovery request arrives.