Electronic Data Records Law | How to Win E-Discovery

EDD Search and Analysis

Advanced ESI Culling, Clustering and Concept Review

E-discovery search and analysis engines are proliferating.   Enhanced keyword search methods (such as fuzzy search that looks for forensic gems like misspelled keywords) are coming to recognize more nuances.  Other analytical technologies are emerging as well, and they are influencing the outcomes of audits, lawsuits and internal investigations.

Take the Lehman Brothers bankruptcy, which oversees 3.2 billion e-mail and instant message records. To glean value from this ocean of records, investigators and auditors need more than just conventional keyword search.  New methods include visual mapping of users, dates, transactions and relationships and searches for concepts like compensation rather than just words like “salary” or “bonus.” Telis Demos, "Smoking-Gun Search Engines Find Profit," Fortune, March 2, 2009, p. 24.

Savvy inspection of eDiscovery records can uncover hidden inference and meaning, and dramatically change the result of lawsuits and investigations.  For instance, the US Department of Justice indicted David Stockman, ex-CEO of Collins & Aikman, for alleged fraud, supporting its indictment with extensive factual references and analysis – including the report of an internal investigation conducted by a prestigious law firm on behalf of the company’s board of directors.  For Stockman, the outlook was grim; at a minimum he faced a grueling criminal trial.  

However, during the pre-trial litigation, Stockman’s defense team assiduously assembled a 15-million  (!) document database of e-mail and other records from the company.  From this huge corpus, the team drew out unexpected insights about how business actually transpired at the company and about how supplier rebates (a key topic) worked in the industry.  The insights suggested that neither DoJ nor the internal investigator really understood the case.  These insights enabled the defense to construct a radically different interpretation of Stockman’s tenure as CEO and, eventually, to persuade the DoJ that it had made a mistake.  In an unusual about-face, DoJ withdrew criminal charges against Stockman before the trial began.

In other words, ESI data-mining is the reason Stockman walks a free man today.

According to Ranjit Sarai, eDiscovery specialist at Messaging Architects, litigants like Stockman can achieve courtroom advantage by exposing e-mail databases to advanced or experimental search techniques. “When an investigator is trying to understand a multitude of e-mail records, scrub them for privacy compliance or cull out privileged communications, keyword-oriented searches can be very tedious and can mask the big picture.  Alternative analytical tools can often yield better results.  For example, they can visually map things like time relationships, which can highlight suspicious activities or contradict an adversary’s interpretation of what happened in the case.”

To assemble such as database, a litigant like Stockman would need to access to the records in a machine-processable format, such as XML.  Sometimes courts roughly refer to such as format as "native format," but eDiscovery formatting is a complex topic.

–Benjamin Wright

Mr. Wright is an advisor to messagingarchitects.com, experts in e-discovery services, training and software.   Here is an ARMA podcast describing Messaging Architects' work in e-mail archiving, including its workshop for development of an email records policy in an enterprise.

Recordkeeping for Social Networking Managers

Social Networks for Official, Commercial & Employment Transactions

By law, employers generally need to keep records of employment decisions.  So when the boss conveys a pink slip by way of Facebook, the employer needs a legal record of it.

What?  Fire someone by Facebook . . . a posting on a wall?  Would a manager do that?  Yes.  A spa in Canada (British Columbia) used Facebook to notify Crystal Bell of her job termination.

The history of electronic messaging tells a story about business records.  As each new form of message comes along, we initially doubt you can conduct business with such a flimsy thing.  Fax as a medium for transacting serious business?  No way, people thought in the early 1980s.  But as time passed –- and as court cases enforced fax contracts -- we grew more comfortable with fax as a business tool.  Today, fax is considered a responsible, even conservative medium for transmitting signed agreements and binding business records. 

Then, when electronic mail came into the workplace, conventional wisdom dismissed it.  Convention said e-mail was not a business record, said it could not (conveniently) be authenticated with a signature, and said it should be deleted quickly like so much water-cooler chitchat.  But naturally business people embraced e-mail as a tool for making obligations and delegating authority.  Today we see the law giving enterprises growing reason to store e-mail as business records.

I predict the same process will unfold for collaborative (Web 2.0 and social network) media like instant message, Facebook, Twitter and Myspace.  Old-fashioned folks will try to ban these technologies as methods for conducting important business.  They will, initially, ignore them as records to be kept.

But the outcome of the story is inevitable.  Busy people (like the boss in BC) will use the new channels to hire, fire, negotiate, agree and so on.

The managers of records need to plan for capturing the records of Web 2.0.  Those records can become the subject of a subpoena, an IRS taxpayer audit, an administrative summons or an internal investigation or the source of exculpatory evidence in defense of lawsuits.