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  1. 1. May/June 2008 The Official Magazine of 26 SharePoint and your ECM strategy 46 Shape up your retention schedule. It’s crucial. Will we begin to see true enterprise content management?
  3. 3. AIIM E-DOC MAGAZINE volume 22, issue 3 M a y /J u n e 2 0 0 8 w w w. e d o c m a g a z i n e . c o m Departments Features Focus On – e-discovery 22 ECM Now 12 ESI: Electronically stored Getting the “e” of the enterprise into content information under the Federal management is finally taking firm toddler steps. Rules of Civil Procedure By Marcia Jedd By W. Lawrence Wescott II, Esq. 26 The Foundation for Sound Records Management and Randolph A. Kahn, Esq. Without a retention schedule, a sound records management policy is impossible. Here is 16 Compliance and Email practical advice for doing it right. By Brian Foster By Nishan DeSilva and Ganesh Vednere 34 ECM and SOA 20 Avoid Underground Archival: What role does service-oriented architecture Gaining control of content play at the intersection of ECM and Web 2.0? on the edge By Billy Cripe and James Owen By Mark Diamond 40 Planning an ECM Project The stages of planning an ECM project are fairly 4 Industry Perspective consistent, but if you’ve not been through this 6 AIIM Online experience, it’s hardly a snap. Learn what to expect. 8 Market Intelligence By John Harney 10 PM for ECM 46 SharePoint in the Enterprise 60 All Around AIIM Where does Microsoft’s ECM tool fit within the 62 Indices and ATM overall context of an organization’s ECM strategy? 63 Over the Horizon By Russ Edelman 64 Around the Corner 50 12 DM Considerations Before you can effectively role out document management, you must analyze your business from the inside-out. By Jay Ganesh Case Study 54 Revamping a Manual Process Healthways automates utilization management processes with capture and workflow tools By Barrie Locke Cover Image: Bates Creative Group AIIM E-DOC MAGAZINE (ISSN 1544-3647; USPS Publication #527-090) is published bi-monthly for $90 (US) by AIIM,1100 Wayne Avenue, Suite 1100, Silver Spring, MD 20910 USA. Periodicals class postage paid at Silver Spring and additional offices. Publications Mail Agreement no. 40624074 – please return undeliverable Canadian addresses to: P.O. Box 503, RPO West Beaver Creek, Richmond Hill, ON L4B 4R6. U.S. POSTMASTER: Send address changes to AIIM E-DOC MAGAZINE, 1100 Wayne Avenue, Silver Spring, MD 20910 USA w w w. e d o c m a g a z i n e . c o m may/june 2008 1
  4. 4. AIIM E-DOC MAGAZINE Staff AIIM International Staff Publisher President AIIM International John Mancini 1100 Wayne Avenue, Suite 1100 Vice President Silver Spring, MD 20910 USA Carl Frappaolo 301-587-8202 Vice President Atle Skjekkeland European Office Vice President +44 (0) 1905-727-600 Peggy Winton Managing Director (AIIM Europe) Editor Doug Miles Bryant Duhon Director, Web and IT 301-916-7182 Rakhi Bhatia Director, Finance and Administration Advertising Sales Felicia Dillard 301-755-2626 Director, Standards and Content Betsy Fanning Advertising in AIIM E-DOC MAGAZINE Director, Global Education Services EMEA Coming Soon – Infonomics is limited to providers of products and Hanns Köhler-Krüner services related to the enterprise content Director, Market Intelligence management industry. Dan Keldsen As discussed in this space in the last issue, AIIM E-DOC Magazine Rate card is available at Director, Global Education Services NA Bob Larrivee will become Infonomics with the September/October issue this year. Editorial Advisory Council Director of Marketing While not a blockbuster along the lines of upcoming releases of Sex Beth Mayhew Priscilla Emery in the City (or, my current favorites, Kung Fu Panda and The Dark Director, Data Analysis ECM Scope Theresa Resek Arthur Gingrande Director, Global Education Services, Knight), we anticipate that the change will generate positive reviews IMERGE Consulting Kathy Goerdt North America for us. We are in the home stretch of preparing new columns and Thedra White Illinois Municipal Retirement Fund a new, more appealing and readable design. The final dimensions Arthur Hedge 2008-2009 AIIM International Castle Ventures LLC Board of Directors aren’t all determined yet, but Infonomics will visually be leaps ahead Gordon Hoke Robert Zagami, Chair KPMG LLC of the magazine you currently hold in your hands. Better yet, new DataBank, IMX Nathaniel Palmer Lynn Fraas, Vice Chair departments, columns, tighter features and more focused case Transformation and Innovation Crown Partners Richard Payne Mike Alsup, Treasurer studies will make the content we deliver to you even better. The South/Financial Group Bud Porter-Roth Gimmal Group So, please remember that when this “new” and attractive thing Whitney Tidmarsh, Executive Committee Porter-Roth Associates called Infonomics shows up in your stack of magazines that that’s Member At Large Larry Sackman EMC Corporation EDS Jan Andersson, Immediate Past Chair still us. Crack us open and read away. TK Train Gambro USP ReadSoft AB As always, this issue is full of information to help you sort through John Chickering List Rental Fidelity Investments your content issues: IDG List Services Brian Dirking 508-370-0832 Oracle • For a comprehensive overview of issues to consider and steps to Pamela Doyle take as you develop a records retention plan, turn to page 26. AIIM E-DOC Magazine makes portions of our Fujitsu Computer Products of America magazine subscriber list available to carefully Mark Greatorex, Chair, European Advisory • SharePoint can be either bane or boon for office productiv- screened companies that offer products and Trade Member Council ity and IT planning. A discussion of two basic approaches to services directly related to the industries we Meridio Ltd cover. Any subscriber who does not want to Stephen Levenson, Chair, including SharePoint as part of your ECM strategy on page 47. receive mailings from third-party companies Standards Board should update your preference at Administrative Office of the US Courts • Too often, companies overlook the planning that needs to take Gregory Schloemer AIIM Professional Members, please call place, including making sure all of the right people are cor- Docuware Corporation 800-477-2446 x 609 or email John Opdyke rectly assigned, before beginning implementation of an ECM Reprint Sales Hyland Software (or any) project. Get started right by turning to page 40. Reprint Management Services Dan Lucarini, Chair, North American 717-399-1900, ext. 130 Advisory Trade Member Council Captaris Inc. Ed Mackin And remember, Infonomics = AIIM E-DOC Magazine. Only better. MetaSource Subscriber Service Mark Mandel, Chair, Professional Advisory Council Read and enjoy Subscribe online at Results Engineering William Neale IBM Corporation AIIM E-DOC MAGAZINE is free to qualified Bryant Duhon subscribers in North America and to AIIM Llewellyn Thomas International Professional members. For all BearingPoint editor, AIIM E-DOC Magazine others, the one-year subscription rate is Tina Torres Microsoft US$95. Please allow six to eight weeks for your subscription to begin. Terrylyn Train 301-916-7182 Gambro Renal Products Acceptance of articles, product releases, or advertisements does not imply endorsement by AIIM or AIIM E-DOC MAGAZINE, and AIIM disclaims responsibility for statements, either in fact or Comments, criticism, and witticisms welcome. opinion, expressed by contributing authors. All releases received will be considered, but inclusion in AIIM E-DOC MAGAZINE will be at the discretion of the Editor. United States and foreign copyright reserved. All Rights Reserved. Material appearing in AIIM E-DOC MAGAZINE may not be reprinted without permission of AIIM. Printed in the United States of America. AIIM is not affiliated with edocs, Inc., a provider of online electronic and account management. © 2008 AIIM 2 may/june 2008 w w w. e d o c m a g a z i n e . c o m
  5. 5. There’s a better way to process your documents... AnyDoc Software offers automated solutions to quickly, easily and accurately classify, capture and process all your documents and data – including forms, invoice and remittance processing, and mailroom automation. Y our company’s information is only as good as the quality of your data and the speed at which it ⇓ows. Inaccurate data will compromise the ef⇒ciency of your business practices, and delayed data will sti⇓e them. Did you know… When Northeast Utilities, the Conn.- based Fortune 500 conglomerate, found itself expending too much of By virtually eliminating manual processes such as document classi⇒cation, its own energy processing its invoices, routing and manual data entry, you’ll be able to dramatically increase the it was time to get plugged into speed and quality of data entering your ECM, ERP or other back-end system. AnyDoc®INVOICE™. • Virtually eliminate manual sorting, routing and manual data entry “…Our number of days to process an • Reduce labor costs including overtime invoice dropped precipitously, even • Increase operational ef⇒ciency after we reduced our processing staff by 40%...” • Ensure compliance with auto-indexed documents for quick retrieval • Improve your data accuracy with auto-validation Clement Lewis, Manager of AP & • Create custom work⇓ows to match your existing business procedures Inventory Accounting, Northeast • Scan documents locally or remotely to reduce postage charges, faxing Utilities costs and transport delays | 1-800-775-3222 Please ask for Client Services.
  6. 6. industry perspectives By John F. Mancini INFONOMICS: That New Magazine Smell! New name. New design. Same great content. What’s in a Name? a right on whatever thathat anyone else is already Well, that’s the $64,000 question, isn’t it? ou road is, but make sure you using it. And the With the September issue, we will don’t take the wrong one.e. increasingly challeng- begin a new era for this magazine. A new s Go to a tall tree that has i question of whether ing design. A renewed focus on the manage- flowers on it sometimes s th URL is available. I the ment issues associated with managing and make a left.” a convinced there are am content, records, and documents. A lot As a matter of fact, o only 26 still un-owned more features on the key people involved I am not really sure of UR URLs, except for the in shaping the futures of their companies the actual name of the go goofy ones with suffixes and organizations. An electronic distribu- development we live like .tv or .xxx. tion strategy to make the magazine a true in. In my defense, I S as they say on So global voice for our industry. do know that all of the Academy Awards, We discovered in the process of think- our yards are equal to cou I have the envelope could ing about rechristening the magazine that about a quarter of an plea please? there are people out there who are official acre, and the devel- An And the winner “namers”—people whose job it is to think opment has some sort of landed gentry f is—In is—Infonomics. of cool names for things. name appropriate to country estates that The reasons can perhaps be best Much as I might like a gig like this—hey, are usually measured in square miles. summed up by this definition from how hard could it be?—my wife assures As we wrestled with the name for the Wikipedia—with the usual caveat that the me that it would be a terrible fit. Her magazine, we went through the usual definition may have changed by the time evidence? steps. How about a made-up name? How you actually read this article. But we liked After 12 years of living in the same about something named after a Greek it. Infonomics is defined as the intelligent house, I cannot accurately identify all god? How about a Latin word? How about management of information. It is about the people who live in our neighborhood mashing two words together to make a the interrelationship between people and (there are 12 houses, and she maintains at new one? How about a name completely organizations, on the one hand, and infor- a rate of one name per year I should have disconnected from the focus of the maga- mation, on the other. it down by now). zine? (AIIM E-DOC Magazine editor Bryant And I guess that about says it all. I do not know the names of any of the Duhon has been pitching “Spiky Katfish” Get ready for Infonomics. roads in our development. I usually give for as long as I’ve known him.) directions like this: ”Go to the road at the Once you get a name you like, other John F. Mancini ( is top of the hill. Go down a while and make challenges arise. Small ones like whether president of AIIM ( 4 may/june 2008 w w w. e d o c m a g a z i n e . c o m
  8. 8. AIIMOnline On the Web. Visit. Read. Listen. Learn. Participate. What Do You Think? AIIM Blogs How are we doing? Have you taken If you haven’t added AIIM’s blogs to your RSS feed yet, you should. Below are snippets from recent posts. a look at the digital version of the Read them all at and click on “blogs” in the center of the page. magazine? Do you like it? Hate it? What do you need to know? Let us From BizTechTalk, written by Dan Keldsen, 2.0 is getting a dose of reality. The second largest know what you’d like to see in print director of Market Intelligence. BizTechTalk social networking site, Facebook, has agreed to and on the Web. recently landed at #69 on Technobabble 2.0’s implement another round of security mechanisms, Contact Bryant Duhon at Top 100 list of analyst blogs. this time aimed at better protecting minors and Are you @#S!ing IT? Most Aren’t… excluding certain adults from participation. As I Roughly 45 days after we’ve released the Market have said time and again, the open, free form, low Save the Trees! IQ on Enterprise 2.0, and we’ve passed 1,000 barrier spirit of Web 2.0 (and by implication Enter- Get AIIM E-DOC Magazine Online downlods. Seems to be accelerating - perhaps prise 2.0), is great in theory, but in reality content Go to and because we’re speaking at the upcoming June and forum governance is a necessary addition… sign up for the digital edition today. Enterprise 2.0 Conference in Boston? Plus, if you ever misplace your copy Who knows - but for those of you who Conquer Information Chaos from the of the magazine, remember that the haven’t already downloaded the report, feel free keyboard of AIIM president John Mancini. complete archives of the magazine— to do so, it’s a free download, so fairly Cell Phone Capture back to March 2000—is online. ECM few hooks attached to the bait! :) I had an interesting conversation with Harvey knowledge just a click away. On that front, wanted to call attention to one Spencer at the Kodak Executive Summit. piece of Enterprise 2.0 that doesn’t get much Harvey was particularly keen on the potential attention - and that is the topic of Mashups… for digital phones as mobile capture devices. His opinion was that there was huge potential Taking AIIM is written by Carl Frappaolo, now that 3 MP camera phones were starting to vice president of Market Intelligence come into the market (the minimum he thought Beating a Dead Horse into the Ground - it was possible to do reasonable full page Web 2.0 is Coming Back to Reality capture with a camera). Perhaps I have belabored this topic, but I just He showed me a couple of examples that cannot help myself. Once again, the world of Web were quite interesting… AIIM Job Center Know someone looking for a new job? Is your company hunting for the right candidate for an ECM-related position? For Job Seekers: • Review available jobs in all areas of information management—for free • Target your search by job category, location, and salary level In Your • Create job alerts to ensure you’re on top of the latest openings that meet your criteria Neighborhood • Post your resume to bring employers to you—it displays anonymously AIIM chapters across • Apply for jobs directly from within the Job Center the U.S. offer a wide variety of educational and For Employers: networking opportuni- • Gain great exposure among job seekers looking for industry careers ties. Please consult the • Access the online database of confidential resumes from qualified candidates Chapter Events Calendar • Connect only with interested candidates after reviewing their online resumes on the AIIM website at • Enjoy competitive job-posting and resume review rates for detailed listings. Just go to and be part of the source for enterprise content management jobs and resumes. 6 may/june 2008 w w w. e d o c m a g a z i n e . c o m
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  10. 10. market IQ Searching (for the Social) in the Enterprise By Dan Keldsen or people aware of enterprise 2.0 or ask—“our people are our most important F its consumer brethren, Web 2.0, the focus is typically on collaboration or “user-generated content” (e.g., “You” per assets” or “our intellectual property are our most important assets”—would be the two most likely answers. SLATES Early View of Enterprise 2.0 Elements Time’s 2006 Person of the Year). Search, Even though search technology has been however (a decidedly old technology), has available for nearly thirty years, even the a major role to play—there is far more to majority of the easily searchable content SEARCH – Discoverability “2.0” than blogs and wikis. One of the key frameworks for under- (digital text) in an organization is—all too often—difficult to find (we will have data S of information drives reuse, leverage, and ROI. standing enterprise 2.0 solutions, is the available on this issue once the Market IQ LINKS – Using URIs to forge “SLATES” framework (see image at right), created by Harvard Professor Andrew McAfee (the “father” of Enterprise 2.0). on findability is available in late June 2008). Traditional search is a topic for another day, but what Web 2.0 and enterprise 2.0 L thousands of deep interconnections between enterprise content 24/7. SLATES has been extended into have pointed out is that the people in our AUTHORSHIP – Ensuring every another framework, “FLATNESSES” (see image on page 9) by Dion Hinchliffe, a well known Web 2.0 consultant and trainer, collective organizations have not been tapped as thoroughly as they could be; neither for the knowledge in their heads, A worker has easy access to Enterprise 2.0 platforms. with a technical background (as opposed nor for the connections that they are TAGS – Allowing natural, organic, to Prof. McAfee’s academic background). Using FLATNESSES as the superset, you forging every day with other people, both inside and outside the organization (part- T on-the-fly organization of data from every point of view. can see that both “social” and “search” ners, customers, etc.). capabilities are deemed necessary for a “Social” information in the enterprise EXTENSIONS – Extend knowledge true enterprise 2.0 system. They are core to the functioning of enterprise 2.0. Compare remains almost completely hidden, buried in the channels of email, instant messag- E by mining patterns and user activity. to “1.0” systems: how many intranets, cus- ing, phone conversations, and other (typi- SIGNALS – Make information tomer relationship management, or sales force automation systems suffer from poor search, and a disconnect between the vari- cally) one-to-one communication mediums that may be searchable individually, but certainly not as a cohesive whole. S consumption efficient by pushing out changes. ous people using or inserting information [Source: Don Hinchliffe, ZDNet.] into them? Poor findability, usability, and a Reveal the Intelligence in resounding lack of life (people) are typical Relationships in “1.0” intranets. A key component of the philosophy behind enterprise 2.0 is the idea of “transparency.” Finding Your Assets - All of Them Extremists will tell you that all information What are the most important assets of should be available to all of the people all your organization? Depending on who you of the time. In a consulting engagement The AIIM Market Intelligence Quarterly (Market IQ) explores a timely enterprise content management (ECM) topic with distinction and objectivity, providing education on both the associated business issues and technical solution components. Far more on the cultural, business, and technical aspects of enterprise 2.0 can be found in the Market IQ on Enterprise 2.0, companion webinar, and enterprise 2.0 training program offered by AIIM. See for further details. 8 may/june 2008 w w w. e d o c m a g a z i n e . c o m
  11. 11. ED NT IE OR P NS E HI NC M K- O RS OR G LS SI GE OR H IN L HO RC EN EF NA KS IA ER W G AG OC RE EA UT XT ET IN IG M F L A T N E S S E S content people non-heirachical transparent reusable, addressable, Web-based small pieces [Source: Don Hinchliffe, ZDNet.] several years ago, we found an organi- establishing a serious conversation than of “food” for a “relationship-aware” search zation that had made such a statement just about any other method. engine, email is a near perfect medium to the mission statement and literal goal for In that regard, it’s not who you know, but identify the connections both inside and their new intranet. A simple question to who you know who knows someone else. outside an organization. them prompted a mad dash to the server In most organizations, there is no useful, As Sociologist Mark Granovetter closet—“So this means that anyone can efficient, or effective way to find this infor- explained in The Strength of Weak Ties, see anyone else’s current salary informa- tion?” They had taken the statement just a bit too seriously. Security in search, and in ••• any social systems, needs serious atten- So the goal is not to have complete transparency of all information, relationships tion within the enterprise. So the goal is not to have complete and all conversations amongst these relationships, but to hone in on the transparency of all information, relation- valuable, business-impacting aspects of the interactions between people. ships and all conversations amongst these relationships, but to hone in on the valuable, ••• business-impacting aspects of the interac- tions between people. Without some trans- mation, aside from wandering the cubes, an article from 1973—having any intro- parency however, search is impossible. You or spamming colleagues with a request for duction to someone, even a “weak tie” can’t search what you don’t have access to. an introduction. (someone you don’t really know, perhaps Search can, however, be easily applied to someone you’ve met at a conference), The Business of Searchable email and other channels of communication. can be all the introduction that you need. Relationships To do so, simply extract the to/from infor- Thirty-five years later, and the majority of One of the most directly business-impact- mation and create a searchable database organizations do not yet take advantage ing “relationship intelligence” applications indicating who is talking to whom, both of this capability. It’s time to take advan- would be in the area of identifying “who within and outside the organization. Even tage of the intersection of social sciences knows someone at company x?” Anyone in an organization of one hundred people, and enterprise search, and change the who has ever been in a sales capacity, there are a vast number of relationships to way that we are able to take advantage of business development, customer service, outside parties that you couldn’t even begin “relationship intelligence.” or partnering activities realizes that the to guess at without a system that can gather More on Findability in June. Stay tuned. value of an introduction to an individual and analyze the information. in another organization, rather than “cold Email can be seen as a records man- Dan Keldsen ( is director, calling” (or worse, “cold emailing”) is more ager’s worst nightmare, given the volume Market Intelligence, for AIIM. Read his blog, likely to facilitate opening a door and and variety of content. But for purposes BizTechTalk, at w w w. e d o c m a g a z i n e . c o m may/june 2008 9
  12. 12. pm for ecm The Bank of Change By Steve Kass ome years back, there was a skit perhaps a task order. You have arrived at to communicate your changes to your S on Saturday Night Live about the Bank of Change. In it, the enthu- siastic marketing talking head pitched the this agreement through a mutual process of development with your stakeholders and your delivery team or vendor. stakeholders so everyone understands what is happening. If the change request is rejected, you’ll need to communicate service of making change as their sole These documents together dictate what that as well, particularly to the requestor, business. Of course the joke was simple. is to be delivered and what is not included with the appropriate documentation from There is no profit in just making change, in the plan and, possibly, the contract. the decision makers. so how did they do it? The answer was These essential documents give you the simple as well: volume. ability to manage change. If it’s in the Recording Change In your ECM project there will undoubt- documentation, you’ll have planned and As is true with every step and process of edly be all kinds of change; maybe even budgeted for it and it must be delivered. managing a project, you must document “volumes” of it. The best advice I can If it is not, you must make the stakeholder carefully. Very often you will be called upon give? Be Ready! The style of project man- understand that fact, and alert them to the to shed light on the details of the process agement that deals with change has come process that will take place, and to the and how it grew in budget, or how it came to be called “Agility,” which refers to the fact that increased budget and time will to the current feature set. You will want to ability to alter your course mid-stream, likely be required. respond by referring to your documenta- sometimes radically, to meets the needs tion to present those answers. of a changing landscape or environment. It Managing Change Further, you must communicate changes happens all the time in business—require- When someone comes to you with a request all along the way as part of your general ments change, budgets change, politics for a feature or a function that is not in the communications plan and effort. You’ll change. You’ve all seen it, but when you’re scope, the SOW, or the task order, you must need to keep a change log that tracks all a project manager, it can wreak havoc on convey the necessity to obtain a change of the requests and their outcomes as part your world if you’re not prepared. order. Your organization or management of the permanent project documentation. Even before Agility there was change may have a procedure that requires change Also keep the documentation that went to management. This common PM discipline orders to be submitted with analysis that and came from the change control com- allows us to manage change, rather than allows a committee to evaluate them. If so mittee or the like. That could turn out to be allowing it to manage us! If there is one you must prepare the documentation that very valuable should anything ever come constant you will encounter in your journey will permit them to approve or reject the into question. through project management, it is change. change request. In smaller organizations, So the next time you’re involved in a proj- It will always be there and you will always there will be less formality, but the idea is ect and you receive a requests for change, have to deal with it. The only question is the same—you are asking for more money, you’ll know how to handle them. You’ll be how? How you perceive it? How you resources, and time to accommodate the prepared no matter the volume. handle it? How you report on it? How you change request. charge for it? If the change request is approved, Steve Kass (stevekass@channelmarketpart- you will then need to adjust your project, president of ChannelMarketPart- Recognizing Change plan to reflect the change in scope and, ners, is a consultant who manages ECM The most important thing you can do to be most likely, the delivery dates (unless projects and advises companies on strategic on top of change, and to not let it run away you will be delivering the added changes initiatives, policies, and procedures in the from you, is to have a well documented with increased resources and keeping to ECM realm. He is currently president of the scope and statement of work (SOW), and your existing schedule). You’ll also need Metro New York Chapter of AIIM. 10 may/june 2008 w w w. e d o c m a g a z i n e . c o m
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  14. 14. focus on—e-discovery ESI Electronically stored information under the Federal Rules of Civil Procedure By W. Lawrence Wescott II, Esq. and Randolph A. Kahn, Esq. s every records and information Types of ESI from a file sharing website, rather then A management (RIM) professional knows, electronic discovery is big business. According to a recent survey The flexible definition of ESI incorporated into the federal rules has resulted in a variety of electronic data being found to lawfully copied them from his own CDs. Information stored in RAM (random on electronic discovery providers, the constitute ESI—some a natural outgrowth access memory). Even though infor- electronic discovery market reached $2 of the “conventional” types of ESI listed mation may be stored in a computer’s billion.1 Electronic discovery is on or near above—and others surprising. RAM memory chips for a short time, the top of everyone’s priority list. nevertheless it is “stored” for purposes But what exactly is “electronically stored Instant messaging. As former Rep. Mark of the federal rules. In Columbia Pictures information,” which is at the heart of elec- Foley discovered to his chagrin, instant v. Bunnell,8 the court held that such data tronic discovery? Most people think of elec- messages don’t necessarily vanish into the had to be preserved where it was demon- tronic mail, word processing documents, ether.3 If an organization is keeping logs of strated that it could be copied to log files or spreadsheets. But electronically stored its text messages, it can be required to for later retrieval. information (ESI) is much more than that. preserve them for possible production in The federal courts were the driving force a lawsuit.4 Deleted files. When the delete key is behind the development of electronic dis- pressed, a computer file is actually only covery. The Federal Rules of Civil Proce- Cell phone images. Images in the plain- marked for deletion, and may be recover- dure were amended in December 2006 to tiff’s cell phone were ordered preserved by able. In Plasse v. Tyco Electronics Corp.,9 a address the subject, after a five-year effort a judge when they could be germane to deleted resume file belied plaintiff’s claim by the Advisory Committee on the federal the plaintiff’s discrimination claim.5 that he had not inflated his credentials rules. Initially, there was a movement to when applying for a job with defendant. restrict the definition of ESI to forms that Voicemail. Increasingly, voicemail mes- In the usual case, however, a party who could be rendered as closely as possible sages are stored as digital files. Although wants deleted files from their opponent’s to paper documents.2 However, a flexible difficult to search and generally retained computer in a lawsuit is required to make definition was ultimately adopted, one that for short periods, they fall within the Rule a showing of special need or relevance.10 would not become obsolete in the face of 34(a) definition, and could become the technological advances. This definition subject of electronic discovery.6 Backup tapes. In many cases, backup was incorporated into federal Rule 34(a): tapes (box on facing page) may be the Metadata. Metadata (box on facing only source of data for files which are no writings, drawings, graphs, charts, pho- page), or data that describes other docu- longer present on the system. Tape rota- tographs, sound recordings, images, and ments, has proven critical in establishing tion policies may have to be suspended to other data or data compilations-stored in a plaintiff’s case. For example, in Elektra make sure such data is preserved. any medium from which information can Entertainment, Inc. v. Does 1-9,7 meta- be obtained either directly or, if necessary, data attached to music files found on the Other sources. Personal digital assis- after translation by the responding party defendant’s computer established that he tants, flash drives, Web pages, computer into a reasonably usable form. had downloaded copyrighted music files databases, MP3 players. 12 may/june 2008 w w w. e d o c m a g a z i n e . c o m
  15. 15. focus on—e-discovery Special Characteristics Volume and duplicability. Records tronic document being stored in different of ESI managers are undoubtedly aware of the places in the enterprise. While it may not The Sedona Conference, a think tank statistic that over ninety percent of the always be necessary to produce all of whose deliberations have proven influ- documents created today by businesses these copies in response to an electronic ential in the area of electronic discovery, are in electronic format, and that the ease discovery request in litigation, parties has described several characteristics of of duplication, through the collaboration encountering duplicates should make ESI that differ significantly from paper process and electronic mail, often results sure that the numbers add up in their records.11 in many different copies of the same elec- document production. For example, in In Metadata and Backup Tapes Two types of ESI, among many, that must be accounted for during e-discovery. Metadata Backup tapes Metadata (data describing, or containing characteristics of, As soon as you become aware of litigation (or potential litigation), other electronic data) is an aspect of electronic data of which consider setting aside the backup tapes for the period of time records managers must be aware. One category of metadata, covered by the dispute. If it turns out that important documents substantive metadata, includes the “track changes” feature in are missing from your system, the backup tapes may be the only Microsoft Word, which can reveal prior versions of an electronic source of that missing data. document. Substantive metadata also includes spreadsheet for- Litigants are generally under a duty to preserve all relevant mulas not visible when a spreadsheet is printed. In certain types information in their possession relevant to a lawsuit not only of cases, metadata can play an important role. For example, cre- when they receive the suit papers, but when they reasonably ation, access, and modification dates on documents, or system should have known that a matter was likely to commence in metadata, can be used to establish a chronology of events to the future. Thus, if a party fails to preserve backup tapes, and establish when a copyright infringement occurred. the data has been deleted from the system, the party could be On the other hand, metadata can be of absolutely no relevance subject to the same sanctions as described above. to litigation at all. In that event, reviewing metadata just to make The Federal Rules make a distinction between data that is sure that there aren’t any “smoking guns” can run up the cost of “accessible” and data “not reasonably accessible because of litigation. The Federal Rules of Civil Procedure require the parties undue burden or cost.” Some argue that backup tapes are “not to confer about discovery topics. Metadata should definitely be reasonably accessible” because of the way in which data is on the list. The parties involved can agree that metadata will not stored on the tape, and that the purpose of backup tapes is gen- be involved in the suit, or they can restrict discoverable meta- erally for disaster recovery, not routine retrieval. However, if the data to certain categories of metadata. If the parties can’t agree, requested information is not available elsewhere, and particularly the judge may have to decide. if the party has used the backup tapes for archiving purposes It’s a good idea, however, to make sure that metadata is pre- (i.e., retrieval of inadvertently deleted data), the backup tapes served. Just because metadata is preserved does not mean that could be subject to discovery. the metadata will be produced in litigation. However, if metadata Although under the Federal Rules the producing party gen- turns out to be important to the suit, the failure to preserve the erally bears the costs of production, when data is considered metadata can subject parties to sanctions ranging from payment inaccessible, but must be produced, the producing party has the of the other side’s attorney’s fees and costs up to (in extreme cases opportunity to convince the court that the costs of production of deliberate destruction) judgment in the other side’s favor. should be shifted to the requesting party. w w w. e d o c m a g a z i n e . c o m may/june 2008 13
  16. 16. focus on—e-discovery ••• How can the “genuineness” of an electronic document to gather data for electronic discovery be established? All of the hard work required to gather purposes can be wasted if the data can’t be used in court. data for electronic discovery purposes can be wasted if The court in Lorraine v. Markel Ameri- the data can’t be used in court. can Ins. Co.,14 explained how to do so. Assuming that the proposed evidence is ••• relevant to the case, the basic test in the re CV Therapeutics Securities Litigation,12 apparent from what appears on a com- federal system is deceptively simple: “A the plaintiff filed a motion against the puter screen. Data on a computer can be party seeking to admit an exhibit need defendant for destruction (or spoliation) modified by the mere act of turning it on. only make an initial showing that the of evidence where the number of emails evidence is what he or she claims it to produced did not match the number of Environment-dependence and obso- be.” The devil, however, is in the details. email messages in the email catalog. lescence. A piece of paper can be One way to do so is via testimony by a Although the defendant was generally understood on its own. Electronic data, witness who can provide details about able to explain the discrepancies as a on the other hand, can make no sense if it the process by which the electronically result of de-duplication of the messages, is separated from the primary application. stored information is created, acquired, the defendant was required to provide A Word document file looks like gibberish maintained, and preserved without any additional details where some remaining unless it is opened in Microsoft Word or changes. Although IT personnel might be discrepancies were still significant. an application designed to read Word files. called on to testify about such matters, Data stored in a database has no meaning records managers may also be candi- Persistence. As stated above, when a unless formatted into reports or retrieved dates. Identification of the electronic document is deleted, the computer only via queries. Legacy, or obsolete, applica- document by distinctive characteristics marks the space taken by the document tions can present particular problems. The is another method. Metadata can play as available. The converse of this is that company may have to maintain, or keep, an important role here; for example, the installation of programs designed to over- old equipment, in order to preserve access Internet header in an email message can write deleted documents could be cited to legacy data. Alternatively, it may have to authenticate a message by showing its as an indication of deliberate destruction either convert the data to newer applica- origination from the mail server. of evidence, as occurred in Kemper Mort- tions, or make arrangements with vendors Electronic information and documents gage, Inc. v. Russell,13 although it gener- which specialize in legacy applications. present a whole range of issues for records ally appears more suspicious when such managers to address. First, what is con- software is installed shortly before the Authentication Issues sidered ESI under the new FRCP is a fairly litigation begins. It’s easy to change an electronic docu- broad universe of information which begs ment. The document can be edited and for broader and better management. Sec- Dynamic, changeable data. Systems saved, and no one is the wiser, particularly ond, while paper is far from obsolete, the may be configured to automatically purge if you reset the system date and time increasing reliance on electronic information data, and backup systems move data clock before you do it. How can the “gen- in most organizations means that disputes from the main system to backup tapes uineness” of an electronic document be will increasingly center around e-evidence. or archives. Changes to data may not be established? All of the hard work required As such, records managers can play a vital 1 George Socha and Thomas Gelbmann, “EDD Hits $2B in Socha-Gelbmann Study,” Law Technology News, August 2, 2007, at jsp?id=1185959203368. 2 See Kenneth J. Withers, Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure, 4 Northwestern Journal of Technology and Intellectual Property 171, 75 (Spring 2006), 3 Anick Jesdanun, “IM Conversations Can Linger for Years.”, October 5, 2006. 4 In re Celexa and Lexapro Products Liability Litigation, 2006 U.S. Dist. LEXIS 91590 (E.D. Mo. Nov. 13, 2006). 5 Smith v. Café Asia, 246 F.R.D. 19 (D.D.C. 2007). 6 Barclay T. Blair and Jay White, “Voicemail Management: Addressing the Information Management Challenges of Voicemail in Integrated Messaging Environments,” Business Trends Quarterly (Q4 2007). 7 2004 U.S. Dist. LEXIS 23560 (S.D.N.Y. Sep. 7, 2004). 8 245 F.R.D. 443 (C.D. Cal. 2007). 9 448 F. Supp. 2d 302 (D. Mass. 2006). 10 The Sedona Conference Working Group, “The Sedona Principles: Best Practices, Recom- mendations and Principles for Electronic Document Production, Principle 9, at ii (2d ed. June 2007), available at pdf. 11 See generally id., pp. 2-5. 12 2006 U.S. Dist. LEXIS 38909 (C.D. Cal. Apr. 3, 2006). 13 2006 U.S. Dist. LEXIS 26323 (S.D. Ohio May 4, 2006). 14 241 F.R.D. 534 (D. Md. 2007). 14 may/june 2008 w w w. e d o c m a g a z i n e . c o m
  17. 17. focus on—e-discovery ••• In the end, the records manager’s familiarity with their company’s mation Nation Warrior, and Information ESI could be the difference between victory and defeat in litigation. Nation: Seven Keys to Information Man- agement Compliance. He is an authority ••• on the legal, compliance, and policy issues role in helping their organization get a bet- ability to find needed ESI for litigation. In the of information technology and information. ter handle on what electronic information end, the records manager’s familiarity with W. Lawrence Wescott II, Esq., is a lawyer exists and where—thereby promoting infor- their company’s ESI could be the difference and a senior consultant for Kahn Consult- mation accessibility and legal compliance between victory and defeat in litigation. ing, Inc. He is the author of the Electronic (by mapping the sources of ESI). Finally, by Discovery Blog (www.electronicdiscovery- applying retention rules to the vast universe Randolph A. Kahn, ESQ., founder of Kahn, named one of the top 100 legal of electronic information, a company can Consulting, Inc. (www.kahnconsulting. blogs by the American Bar Association become a more efficient business with less com), is a frequent and respected speaker, Journal and speaks and writes frequently spent on storing unnecessary e-stuff, while consultant, and author. AIIM has published on challenges related to information man- at the same time promoting the company’s three of his books-Privacy Nation, Infor- agement and e-discovery. w w w. e d o c m a g a z i n e . c o m may/june 2008 15
  18. 18. focus on—e-discovery Compliance and Email Compliance and email are difficult enough issues to address individually. Where they overlap, the complexity increases by an order of magnitude. Brian Foster answers questions from a recent AIIM webinar. By Brian Foster Autoclassification Email Q: How does autoclassification work? Management A: Autoclassification products scan mes- Q: Is it possible to sepa- sages to determine classification. They rate business emails from may simply compare the subject line to personal emails? How can a chosen set of keywords, or conduct a organizations determine and more complex review of the message con- apply the correct retention tent. Autoclassification products can be period for each email? Some configured to read and classify records, or companies are automatically to recommend a classification for the user deleting emails after 90 to 120 to accept or correct. Autoclassification days. Is this advisable? tools are only as successful as the poli- A: Email management must be cies established for their use. It is crucial part of an overarching enterprise ••• Autoclassification products can be configured to read and classify records, or to recommend a classification for the user to accept or correct. Autoclassification tools are only as successful as the policies established for their use. ••• to perform extensive testing and auditing content and records management (ECRM) is sent to a company representative via to verify that both the software and con- program that establishes how information email, that contract is a corporate record figuration are functioning properly. is managed in the organization, regardless and should be placed in a designated of media. location. An organization that auto- Q: Would autoclassification make inac- An email in itself is not part of a record matically deletes email messages without cessible data accessible? series any more than a piece of paper is regard to the content and without a sys- A: Because the autoclassification process part of a record series. It is the content tem in place to store records is certainly aims to assist the user in classification, it of the email that determines whether the increasing its risk. Deletion of information should not have an impact on arguments email is a record, business information, based on format (e.g., email sweeping) is supporting the accessibility of ESI. The ephemeral information, or information that comparable to setting forth a policy that content that has been classified into an is non-business related. states, “Shred all paper documents after ECRM system is accessible by definition. If a scanned image of a signed contract 90 to120 days.” Listen to Proactive E-discovery: It Starts With Email at This presentation is in the “archives” section. 16 may/june 2008 w w w. e d o c m a g a z i n e . c o m
  19. 19. focus on—e-discovery Software products are available that text messages, voice mail messages, have the capability to scan the content of a home computers, digital cameras, phone mailbox and select email messages meet- logs, VoIP calls, Web browser cache files, ing defined search criteria. These emails vehicle data capture devices or black are moved into a holding area for classifi- boxes, YouTube, Facebook, blogs, and— cation. The user is allowed a set period of as seen in recent case law—system RAM. time to conduct a final review and declare Legal holds apply to any potential evi- records before the messages are deleted. dence that may be relevant to the matter Assessment of the costs, benefits, and of in contest. All documents (electronic and the level of risk should provide the frame- paper), database records, reports, email work for decisions related to the ECRM messages, etc.—regardless of whether solution. Any systems created to support the items are declared as records or are email management should be aligned with merely information of temporary value— the corporate ECRM strategy. are subject to legal holds. FRCP Q: If more than one copy of an email Q: Do regulations governing e-discov- exists, is it necessary or advisable to ery vary between private and publicly preserve all copies? traded companies? A: If an individual has two identical, exactly A: Discovery rules pertain to any indi- identical, copies of an email, they are not vidual or organization involved in civil required to store both copies. If a user has litigation. Other than the vast amount of printed an email and made hand-written information resources belonging to large notes on it, that document is unique and corporations, there is no variance in the must be retained as a record. If a user discovery responsibilities of companies, has forwarded an email, that email must be kept as well as the forwarded copy. However, ••• if a corporation has the An email in itself is not part of a record series any more than a piece of same email stored by two different users, both cop- paper is part of a record series. It is the content of the email that determines ies must be preserved. If whether the email is a record, business information, ephemeral information, during normal course of business a user stores or information that is non-business related. a copy of an email using ••• email archiving software, only one copy of the mes- sage will be stored. In this regardless of size. Additionally, the FRCP case, the sender and each recipient will be (Federal Rules of Civil Procedure) only able to access the single copy by select- applies to cases filed in Federal Court. ing a link provided by the software. Each state has specific rules that must be followed (see http://www.ncsconline. Brian Foster is the director of Legal Busi- org/ for more information). ness Consulting at Access Sciences (www. and has over twenty Q: Does e-discovery include text mess- years experience in IT, project manage- ages delivered to PDAs and cell phones? ment, and litigation support. Prior to join- A: E-discovery spans any place that ESI ing Access Sciences he was the director (electronically stored information) could of e-discovery for a Fortune 25 Energy exist. This includes but is not limited to Company where he managed e-discovery PDAs, smartphones, instant messages, events and led improvement projects. 18 may/june 2008 w w w. e d o c m a g a z i n e . c o m
  20. 20. engage. empower. evolve.™
  21. 21. focus on—e-discovery Avoid Underground Archival: Gaining Control of Content on the Edge By Mark Diamond battle is taking place over email, Many courts also have rules that there’s First, companies need to recognize that A wikis, blogs, and IM. Many com- panies want to manage, control, and, ultimately, delete messages and no distinction in accessibility between a centralized archive and someone’s laptop or a USB drive. Corporate record retention employees will save email. Capture and control of email works. If companies can capture a copy of email coming in and out other types of electronic content not policies offer no protection; it’s not what of the server, they will always have a copy deemed as “official” records. Companies you should have, it’s what you do have. and can find it easier. Likewise, if older want to ensure that official documents are And with discovery costs comprising at emails are captured in an email archival maintained only in centralized archives— least half of the costs of litigation, this system, the systems permit expiration and delete everything else. Employees are explosion of electronic messaging is driv- (deletion) of older email. Hence companies fighting back, holding onto and saving all ing up the cost of litigation. Ouch. that capture email are in a better position of their email messages, spurning compa- to control their use and ultimate deletion. nies’ deletion attempts. They are retaining Companies Try and Delete Ironically, companies that archive email— this information in unofficial places, includ- – Underground Archival and keep it for a reasonable amount of ing PST files, hard drives, USB drives, and Takes Off time to avoid underground archival—have driving “underground archiving” many Stung by expensive discovery costs and less accumulated email than those that try other places “on the edge.” rogue emails, and abetted by IT storage and delete email after 60 days. managers who want to keep data storage Training works. Companies need to Email Is a Business Document costs down, many companies have imple- train their employees that every message IM, blogging, and twittering are joining mented 30- or 60-day email and electronic sent or received on a company system is a email as always-in-contact communi- message deletion policies. If we get rid of business document. The company needs cation mechanisms. Here’s the catch: the message before there is a reasonable to explain to its employees that it doesn’t these communications, when sent from anticipation of discovery corporate coun- want to be Big Brother, but rather it has a company system, are business docu- sel and IT managers think, we save time, a legal and regulatory responsibility to ments, subject to the same discovery money, and disk space. Furthermore, the manage its business documents. It’s also and regulatory controls as paper docu- thinking goes, we can teach employees important to reaffirm that every message ments. The courts have long held that how to classify the few “official” emails. that an employee sends can be reviewed the content of the document is key—the All’s well, right? by the employee’s boss and the director medium is irrelevant. One problem: it doesn’t work. Of the of HR. If you want to chat up your hot date Employees may not view the personal more than one hundred medium and large on Friday night, that’s fine, just use your email sent from a company system or the companies we have analyzed, all of those own personal email account. Wow, thinks risqué IM coming across the company with aggressive 30- or 60-day email dele- the employee, maybe I should be careful Blackberry as a real business document. tion policies didn’t actually delete mes- about what email I send at work. That’s But the courts and regulators do, and sages. They did drive underground archival, exactly the behavior you want to drive. when companies enter into litigation or making emails more difficult and expensive some type of regulatory discovery, they to discover. Mark Diamond (mdiamond@contoural. have an obligation to find all documents— com) is president and CEO for Contoural wherever they may exist. During a dis- What Works (, a consulting firm for covery, there is no distinction between While failed strategies are abundant, storage issues. Mark is a leader in applying “official” records and informal documents. don’t give up, this is a solvable problem. the lifecycle services approach to storage. 20 may/june 2008 w w w. e d o c m a g a z i n e . c o m