Backup tapes are usually the most intact record of the data

Conducted October 22, 2007

By K.E.H. Polanski writing for DCIG Inc

Kelly:  In watching the courts try cases since the "new" FRCP amendments took affect late last year, what key trends are you seeing emerge in electronic data discovery?

Andy:  We have been watching pretty closely.  In fact, I'm having someone on my team publish an article shortly on the most interesting cases in the last 12 months.  That's coming out soon.  We see a few trends happening, some surprising and some not so surprising.

One not surprising trend is that judges are continuing to try to balance the arguments just as they always have done.  So, if it's a million dollar eDiscovery effort but the case overall is only going to be worth a small portion of that, then the judge tends not to go after that discovery.  However, one somewhat surprising trend is that if the data is on tape then the judges are ruling more often than not that they are going to make you go get it.  They are looking at uniqueness, and whether policies for auto deletion are in place or if the data is managed willy-nilly, and that the backup tapes are usually the most in tact record of the data.

Kelly:  There appears to be some gap between what legal teams require to support eDiscovery and the capabilities available today in data management technology.  What advice do you have for vendors trying to assist their clients in addressing litigation readiness challenges?

Andy:  There are some practical strategies available.  What we advise is to take a solutions approach.  At EMC, we've done a lot to try to institutionalize what it takes to address the business problems starting with improved business processes to meet compliance.  From my perspective, it starts with what you are doing to manage your information and how you operate your business from there. 

As advice for technology vendors, I would say that there are certain technology requirements that are still needed.  These include the need for better-and-better search, audit trail capabilities, and capabilities for proving the authenticity of content that is provided to the court.  The sheer number of data objects that we're talking about with eDiscovery puts a lot of additional pressure on this type of technology.  We take an enterprise approach to archive, to make it scalable enough to do the job.

Kelly:  What about services, are they a key requirement?

Andy:  Absolutely.  When I was describing how we've institutionalized business process solving, I was talking about our services-led approach to working with our customers - helping them with their business processes - and then helping them with all of the types of technologies that they require to support eDiscovery.  It has to start with a solid understanding of the eDiscovery business processes, and that means services.

You can read more about Andy's views on eDiscovery on his BLOG at:  http://andrewsblog.emc.com/