Joshua Konkle: In your work with corporate legal counsel how do you help them synchronize their policies and their IT, what is the mood of legal counsel out there?

Tom Spadafore: The mood is disjointed. Legal counsel must understand basic technology issues with respect to early case assessment, hard-drive forensics and content (email) archives. These disjointed applications leave legal counsel with more questions about an investigation than answers.

To build a product like VANTOS V-Flex requires a thoughtful understanding of the end users and their use cases. We have worked with chief, security officers, chief risk officers, investigators, CFOs, General Counsel, external audit firms, CEOs and the boards of directors to define "holistic investigation." Each of these leaders and groups has a stake in the success of an enterprise investigation platform.

Joshua Konkle: How do you educate the non-security IT, legal and key content stakeholders important investigation concepts?

Tom Spadafore: We have built an advisory council and community management component into VANTOS V-Flex product. We worked with our advisory council for over six (6) months building use cases for the VANTOS Enterprise Investigation platform. During the course of product design and requirement gathering, our clients made it clear that we were the first ones helping with "holistic investigation" in the Enterprise.

Enterprise and holistic investigation, as concepts and strategies, generate many questions, concerns and risks. Our investigator, legal and security community is made up of 50+ professionals. Our community helps develop working Investigation Playbooks to intersect pressing investigative issues. For example, our community collaborates with us to develop Investigation Playbooks to manage retention policy, business continuity and information security issues. Some of our community members includes KPMG, ARC Group NY and individuals, such as Steve Harper of Crucial Security and Randy Barr Chief Security Officer at WebEx.

We were able to listen to and respond effectively to the customer's needs because we aren't trying to slot an existing product or solution into their business. Using this model, we can aggregate existing data management tools into an enterprise investigation platform along with a supportive community.

Joshua Konkle: One of the challenges corporations concern themselves with is large amounts of un-reviewed data going to outside reviewing review systems, what is your experience?

Tom Spadafore: The typical conversation with GCs is about managing data internally in an attempt to reduce hosted and outside review costs. Moreover, risk and security groups care deeply about the content because of corporate exposure and sensitivity level. In our early discussions with these groups, the biggest issue with existing early case assessment products was and still remains "chain of custody." We've worked closely with these groups to address process and technology to directly address audit trail management, deposition primers and case management primers.

Joshua Konkle: What is causing the need for in-house investigation and early case assessment systems by enterprises, in your experience?

Tom Spadafore: The issues of enterprise investigation have been around for a number of years. In my previous business, Reconnex, we dealt with Data Loss Prevention (DLP) on a daily basis. However, DLP is designed to mitigate risk and becomes one facet of an enterprise investigation platform. Therefore, the roll-up of multiple mitigation and auditing technologies are driving the need for inside the firewall investigation systems and Investigation Playbooks provided by VANTOS V-Flex ^im system.

Joshua Konkle: In your experience, what are the pitfalls that enterprises have yet to encounter bringing eDiscovery and investigation inside their firewall?

Tom Spadafore: In our discussions with KPMG, clients and our community we have identified several elements to produce a successful internal enterprise investigation platform:

• Incident response
• Digital forensics
• Physical forensics
• Criminal investigation
• Civil investigation

All of these are critical in the key industry segments that we have been tackling, such as Financial Services, Government, High-Tech and BioTechnology.

Joshua Konkle: What is your companies' vision for dealing with escalating costs in review datasets for large cases, civil and criminal?

Tom Spadafore: Holistic investigation management for the enterprise, including a community of peers that are supporting our product via advisory councils and social networking channels. Our experience is that stakeholders at different companies are facing the same perils and need support. Security, investigation and public welfare are not competitive advantages and our customers realize this.

If you would like to communicate with Tom directly, he can be reached at info@vantos.com or by calling DiscoverReady at 1 206 838 7938.

www.DCIGInc.com publishes interviews with legal professionals; click here for more eDiscovery interviews.

Joshua Konkle: One of the most frequently asked questions by CIO's and others worried about the cost of data management is "how long do I have to keep my data, really?"  What do you say when you get asked that question?

Jim Wagner: The legal (but somewhat impractical) issue is pretty straightforward here---what industry you're in will determine the regulatory and legal requirements for you.  Since relatively few industries are subjected to substantial regulatory/legal requirements for preservation, the question of retention of most records is, often, a balance between the benefit of end user access, aka knowledge management, contrasted against the burdens of data retention expense and potential legal production obligations. 


Joshua Konkle: So, in your opinion there is a trade-off triangle made up of "benefit of access, burdens of retention and production obligations?"

Jim Wagner: Yes, if you reduce your retention you affect both user access and legal production.  Many companies will retain data for end user access, not realizing they are creating a legal risk in terms of collection, preservation, review and finally production.  Approaching the question "how long do I have to keep my data?" with the mindset of user access, burden of data retention and legal production obligations will drive the discussions to closure.  In today's legal business process management environment, retention models are often disconnected from the business workflows in the company.

Joshua Konkle: 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 as a vendor trying to assist their clients in addressing litigation readiness and review costs challenges?

Jim Wagner: Regardless of what any software or other vendor suggests, there is no single application today that is going to address eDiscovery from information management through to production, according to the Electronic Discovery Reference Model (EDRM),

So here are DiscoverReady's tips:

• Learn about, but limit your exposure to immature products and technologies--they may be ready in time, but you don't have time to be their proving ground
• Avoid buying any application until you have successfully used it on a number of matters - start with low profile matters or old case data first
• Beware of making a long-term commitment (beyond 3 years) to any single application, as the technology in the space is evolving rapidly. 
• If you can, use a product "on demand" without paying a huge premium rather than buying a large and long-term license. 
• Make sure that the applications you use have good training manuals, sufficient release notes, and overall quality release programs.  Large user groups are also helpful.  Above all, use commercial off the shelf (COTS) software.
• Do not, however, believe everything you read--good or bad--as we have seen unsophisticated users posting messages at user group sites spread some very unreliable and inaccurate information.

Joshua Konkle: How do you educate the IT people on important legal concepts?

Mary Mack: First of all, I have a BLOG, Sound Evidence, and welcome everyone to view it on soundevidence.discoveryresources.org. Fios publishes articles, works with industry partners like DCIG, provides training at multiple levels (legal and legal technology) and speaks at industry conferences. Most importantly, we get on the phone with clients and prospects to help them better understand their electronic discovery issues and questions.

In addition, we work with our clients to facilitate a close working relationship between IT and legal. For example, we have experienced several situations where IT made a buying decision but didn't consider the legal requirements. IT had worked with all of the other business units to gather requirements. Because legal was not consulted, issues around legal holds, preservation and metadata were missed. Legal may be viewed as a reactive group, but to manage risk, IT must understand the legal requirements for retiring, migrating or deploying new systems to minimize impact on litigation.

For IT professionals who see no reason to treat evidence any differently than any other data, I practice a simple chain of custody exercise. I have them simply "move" files from one physical disk to another. Many people interpret data movement like they would move a chair; however, when you move Electronically Stored Information (ESI) from one physical device to another, it moves a representation of the original item. Critical things like data ownership, group security, created date and many other pieces of metadata (data about data) are changed when the data is "moved."  This minor issue can become a major legal risk when authenticating chain of custody in court.

Try explaining that key spreadsheet that shows you valued your subprime portfolio correctly is authentic, particularly since it lists last week as the "create" date. This simple exercise has encouraged many IT departments to adopt what we call an "empowered collection" protocol, using tools in a very specific way, coupled with great documentation, for ensuring chain of custody.

Joshua Konkle: How do you educate legal counsel on IT?

Mary Mack: One of the areas we educate clients on is in the application of technology for electronic discovery. New technology can be wonderful. It can also cause disaster. Companies will buy tools to reduce their review costs and exposure around discovery, particularly in the areas of early case assessment, collection, preservation and case management. The disaster comes from a lack of assessment and planning as to how these technologies will impact scale, chain of custody and legal workflow, specifically on active litigation. Fios generally recommends customer who are buying new technology to pilot these applications on low profile and low risk cases. Yet, we hear that many companies are buying these tools in an effort to save money and use them on the larger cases immediately.

System testing should be done on copies of previous case data. Do not test or evaluate on original evidence - forensically collected or otherwise. For example, several years ago we received a call from a potential client who had received about a terabyte of native evidence from an opposing counsel. We quoted them a price, $10,000 hypothetically, to image the evidence (back in the day when TB images were pretty rare). They thought the fee was too high. So they used an off-the-shelf search solution, DTSearch, to analyze the evidence. When we inquired about their forensic copy and how they were managing chain of custody and authenticity so they could introduce what they found into evidence, they simply replied "No, we didn't make a copy, we are using the original."

Joshua Konkle: One of the most frequently asked questions by CIOs and others worried about the cost of data management is "how long do I have to keep my data, really?"  What do you say when you get asked that question?

Mary Mack: Unfortunately, the best answer is "it depends."  Each company's business challenges are unique, but the challenge of policy required by the courts or government regulatory agencies is not. Data retention and disposition are workflows designed around business processes. The process of identifying what groups, people, documents and issues are at most at risk and tracking that through a formal data mapping process is something that Fios helps clients with on a regular basis, proactively or for a particular 26(f).

This process enables IT and legal to put boundaries on documents created by groups, but stored outside of content management or traditional document management and workflow products. After data is mapped and under management control, companies can institute (and lift) defensible legal holds according to their litigation portfolio.

Joshua Konkle: 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 as a vendor trying to assist their clients in addressing litigation readiness and review costs challenges?

Mary Mack: You must address people, process and technology as a whole, like a project triangle. If you take away from one, you must give to the other. Customers want predictability in their processes and technology.

In terms of people and process, electronic discovery presents an unusual challenge in that IT is constantly trying to narrow the focus for predictable actions and operations. Legal is traditionally trying to widen the scope or expand it to ensure nothing is missed. For example, an attorney will ask multiple questions to get to a single point:

• What is your first name?
• What is your last name?
• What year were you born?
• What month were you born?
• How old are you?

When these two groups meet, the language and focus is decidedly different. Fios consultants use skills of communication and collaboration to bridge this gap. This has been the focus of Fios since our inception nearly a decade ago. We pioneered the concept of litigation readiness in 2003, well before the amendments to the Federal Rules were in place, and have built an entire portfolio of discovery planning services to help both IT and legal prepare for discovery challenges. For example, in the data mapping process, we help them focus on eDiscovery as a business process that incorporates:

• Physical & digital data
• Business use of the data
• Physical locations where the data is stored
• Litigation portfolio and high-risk issues
• Retention policies and data governance practices

Our goal is to support our clients' legal business process management challenges. And yes, there are too many gaps in the eDiscovery process for technology today to deliver the "easy" button solution. But technology advancements have made great strides, and so have the people using it. It's the process that's the hidden secret to success.

Joshua Konkle: How do you educate the IT people on important legal concepts?

Bill Lyons: AXS-One is a software company and we don't try to pretend to be lawyers!  We have sufficient experience in-house to be able to educate on key concepts and direct GC to appropriate organizations (such as consultants with whom we have ongoing relationships) where they can get more information, as necessary.  Most importantly, we encourage prospects to talk with existing customers on the issues. During 2007, this has been a regular topic for discussion during our customer advisory board meetings, for instance.

Joshua Konkle: How do you educate legal counsel on Technology?

Bill Lyons: In the same way that we have been advising Compliance Officers on IT issues for more than 15 years, we have developed extensive domain expertise to advise GC on IT issues. 
We encourage prospects to talk with our existing customers on the issues.  Moreover,  my marketing teams just completed two major events with General Counsel , one in the US and one in Australia.  Both events were well attended, but the US event covered a broad range of legal topics.  I was happy to learn from that AXS-One was the 2nd most requested vendor at those events. Both Australian and US attendees made it clear that legal counsel is focused and looking for solutions now.

Practically speaking, we have a couple of customers who have appointed specific appointments to manage communications between IT and legal groups.

Joshua Konkle: One of the most frequently asked questions by CIO's and others worried about the cost of data management is "how long do I have to keep my data, really?"  What do you say when you get asked that question?

Bill Lyons: We can help is the first thing I say.  We have been providing record compliance solutions for many years.  In all cases, we discuss the need to plan for secure destruction and work with customers on implementing appropriate technology to manage the retention, disposition, preservation and destruction of data.

The appropriate technology comes in the form of defining business documents by way of business process evaluation.  Axs-One system incorporates business process management (BPM) application and uses that to support data definitions for retention and disposition.  In addition, we have a legal hold capability that is integrated into legal search.  For example, a customer searches for data during a certain time frame.  That search can be put on hold, regardless of the data retention requires.  The system also supports tracking physical records, such as a paper and boxed records.

Joshua Konkle: What is the mood of legal counsel out there?

Bill Lyons: They are buying solutions for their challenges in 2008.  2007 was a "tire kicking" year, where we experienced many General Counsels and IT departments evaluating products and asking questions.  There was a lot of self-education, largely brought forward by the Federal Rules for Civil Procedure (FRCP).

Prior to 2007 the drivers for archiving were two fold 1) operational efficiencies and 2) SEC 17a4.  The latter required financial services companies to maintain a record of every email sent and received from the company.  These two issues drove the systems to retain and manage data, largely email initial.  The early success of products from KVS, Inc, now Symantec, are clear examples of people buying for specific applications.

2007 was a year of calm in the early email archiving business.  Our business picked up as prospects started asking hard questions about record compliance searches that included with legal hold and chain of custody, as well as retention management.  Our customers excel at resolve retention and disposition challenges by working through our "game plan workshop."  It is a proven strategy for driving cross-team discussions and achieving consensus.

Joshua Konkle: 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 as a vendor trying to assist their clients in addressing litigation readiness and review costs challenges?

Bill Lyons: Our advice is for prospects to ask very specific questions and spend time on a proof of concept to ensure the required functionality actually exists. The following is a short list:

•    What are the ESI types handled by the platform?
•    How does the product handle retention and disposition?
•    How does preservation/legal hold work within the application?
•    Are the correct level of search and case management available?
•    How does the search, retrieval, preservation marking, etc perform?

We recommend that these questions be answered by a legal technology team that includes the General Counsel (GC).  In our experience, GC is looking for self-service capabilities.  The self-service platform shoud enable them to search the archive directly, as well as complete the first round of document review, via a unified interface.  This type of early search, aka early case assessment, is the number one way to reduce review costs and eDiscovery budgets. Finally, GCs must ensure that there is a chain of custody validation available for all data.

Joshua Konkle: How are you dealing with the forensic collection of Enterprise Blogs and Wikis?

Bill Lyons: To date, this has been a topic of discussion, versus a product pre-requisite. It is still not clear what specific data from Web 2.0 needs to be archived.  Once this decision is made, AXS-One can, with its current product, handle these data types. 

Not only are some customers looking at Web 2.0 objects but they are looking at it from a broader perspective of defining what "communication" means.  Must they archive WebEx sessions?  What about other collaboration data such as VoIP (CDR/IPDR), fax, etc.?

Joshua Konkle: As an eDiscovery process consultant and forensic technologist, when you are working with early case assessment (ECA), applications what feature is regularly missed by technologists?

Greg Buckles: The primary feature that many technology tools are missing is an audit feature for the source data.  In eDiscovery and forensics we need to understand and have credible chain-of-custody, not just who gave us the data or what system it came from, but is the data the same.  Many of the existing early case assessment (ECA) appliances and tools don't offer a checksum to validate data output is the same as the input.

Joshua Konkle: What are your thoughts on those same tools charging per gigabyte for use?

Greg Buckles: It is difficult in today's legal discovery market to know how much data will be reduced or if you must review it, without first taking an early look at the information, custodians, etc.  Unfortunately, ECA vendors charge by the gigabyte, typically 100 gigabytes can cost as little as $50K.  Charging for the data, under the pre-tense the product will reduce the data is putting the cart-before-the-horse.  Most of my clients have a subset of custodians they need to review for legal purposes.  ECA products, which are those designed to work ahead of case budgets, would receive wide spread use if they were priced as pre-paid, predictable, depreciable technology to support legal risk assessment.

Joshua Konkle: In companies with multiple litigations and complex IT the argument is often made for soup-to-nuts approach, preservation to production what are your thoughts on such a system?

Greg Buckles: First let me say that information management is one of the most important pieces of the eDiscovery reference model.  Second, the soup-to-nuts approach may lack flexibility by design and could create inefficiency depending on the scale of a matter.  For example, a system that works for a small HR case, may not work for a shareholder lawsuit.  The approach may fail for the shareholder lawsuit because it is too prescriptive for far too many symptoms.  By prescriptive I mean the equivalent of taking one drug for each problem, headaches, nausea, pain, depression, etc.  Business will tire of each part and the whole solution will fail.  Think of soup-to-nuts as big medicine for businesses.  Companies are better off taking one pill and that pill is in-house "early case assessment (ECA) system."