The document discusses the importance of IT professionals and legal teams working together on electronically stored information (ESI) management strategies. Specifically: 1) Due to economic and technological changes, corporations are increasingly responsible for managing their own ESI, requiring close cooperation between IT and legal teams. 2) Developing an ESI management strategy is important for litigation preparedness, though less than 50% of corporations report having one. 3) Creating an ESI strategy requires resources but allows for a more efficient response compared to reacting to ESI requests without a plan. Close cooperation between IT and legal is needed.

1. LJN’s
Legal Tech Newsletter ®
Volume 27, Number 11 •February 2010
P R AC T I C E T I P IT’s Importance in Proper ESI Management
An Emerging Power Player
Open Source By Regina A. Jytyla and Kelly D. Kubacki
Routers
A Cost-Effective Solution
Worth Considering
By Brett Burney
T raditionally, corporations have relied upon the advice of outside counsel
to ensure that legally sound procedures were in place to properly identify,
preserve, review and prepare corporate data for litigation or an investi-
gation. However, times have changed and these responsibilities no longer rest
solely with outside counsel — if at all. Due to the economic pressures of the past
When you buy a computer year, the law and technology concerning electronically stored information (“ESI”)
today, you choose between the have developed at warp speed, allowing corporations to manage their data and
consumer-friendly platforms of litigation response differently. Corporations are increasingly taking more control
Windows or Mac. Alternatives of the e-discovery process, particularly in the early stage of information manage-
such as Linux are completely ig- ment, launching an evolution in the roles IT professionals and corporate attorneys
nored. play. Consequently, IT and legal must participate in a carefully choreographed
The kernel of the Linux op- dance in order to respond successfully to ESI requests. This entails developing
erating system is “open source,” an ESI strategy (in addition to a document retention policy), while utilizing tight-
meaning that no company ened resources efficiently. Attention must also be paid to emerging technology
owns or controls it completely. that mandates routine updates to company policies, while safeguarding sensitive
Commercial software packages corporate data.
are built around the Linux ker-
ESI StratEgy
nel (such as Red Hat), but the
Electronic data proliferation is economically neutral — it grows exponentially
core platform remains free for
in good times or bad. Since the vast majority of information is digitally cre-
anyone to revise, modify and
ated and stored, it is important for organizations to plan ahead and create an
authenticate.
ESI strategy prior to litigation. However, less than 50% of corporations that re-
Many folks are leery of open
source software because society sponded to Kroll Ontrack’s Third Annual ESI Trends Report indicated having an
is programmed to embrace prod- ESI discovery readiness strategy in place. (The ESI Trends Report is based on an
ucts from companies like Micro- independent survey conducted by Research Plus on behalf of Kroll Ontrack. A
soft and Apple. Linux is univer- total of 461 (231 U.S. and 230 UK) online interviews were conducted among IT
sally celebrated for its rock-solid personnel and in-house counsel at commercial businesses. Survey questioning
performance and stability, but it was completed between July and August 2009.)
requires a little more effort to find continued on page 2
layman-like support and help.
While open source operating In This Issue
systems may not be prevalent IT’s Importance in Proper
in the consumer computer mar- ESI Management . . . . 1
ket, the concept has successfully Open Source Routers . .1
spread to other nooks and cran- Challenges and Solutions
nies of technology. Open source For e-Billing . . . . . . . 3
software powers servers all over The Enigmatic
the Internet, including routers. Posse List . . . . . . . . . 5
routIng around thE
opEn road
A router is a vital gatekeeper
when accessing the Internet.
continued on page 7

2. ESI Management with charts, processes and technical
LJN’s
language. Corporations should con-
continued from page 1 tinue to focus on ways to bridge the
IT-legal gap to foster a productive
Legal Tech ®
Despite the low percentage of cor- Newsletter
working environment in which both
porations that have an ESI strategy
departments can draw from one an- EDITOR-IN-CHIEF . . . . . . . . . . Adam Schlagman, Esq .
in place, a large majority reported EDITORIAL DIRECTOR . . . . . . Wendy Kaplan Stavinoha
other’s expertise. MANAGING EDITOR . . . . . . . . Steven Salkin, Esq .
having a document retention poli- MARKETING MANAGER . . . . . . Jeannine Kennedy
Creating and implementing an GRAPHIC DESIGNER . . . . . . . . Louis F . Bartella
cy. This disparity suggests a lack of
ESI strategy requires allocating re-
knowledge between the concepts of BOARD OF EDITORS
sources. Indeed, 42% of survey re- RICHARD C . BELTHOFF JR . Wachovia Corp .
document retention and discovery Charlotte, NC
spondents felt the effort to institute
readiness, and perhaps a false sense BRETT BURNEY . . . . . . . . . . Burney Consultants
an ESI strategy creates “a lot of ex- Cleveland, OH
of security that the existence of a
tra work for IT.” The truth is, an ESI JEFFERY M . DUNCAN . . . . . Brinks Hofer Gilson & Lione
document retention policy is com- Chicago
strategy will allow for a quicker,
prehensive enough to protect an or- more efficient response that will
RANDALL FARRAR . . . . . . . . . Esquire Innovations, Inc .
Temecula, CA
ganization when it must respond to be less disruptive to corporations’ TOM GELBMANN . . . . . . . . . Gelbmann & Associates
St . Paul, MN
a legal inquiry. While a document already strained IT resources. It is JOHN GREEN . . . . . . . . . . . . Baker, Donelson, Berman,
retention policy is certainly impor- human nature to believe “this won’t Caldwell & Berkowitz, PC
Memphis, TN
tant, this alone does not adequately happen to me,” but if a huge crisis HOPE HASLAM . . . . . . . . . . Courtroom Sciences, Inc .
position a corporation to properly occurs, the reactionary response
Irving, TX
respond to a request for ESI that is usually proves to be significantly
JUSTIN HECTUS . . . . . . . . . Keesal, Young & Logan
Long Beach, CA
related to an investigation or litiga- more costly and requires more IT RICHARD K . HERRMANN . . Blank Rome LLP
Wilmington, DE
tion. Having an ESI litigation strat- resources to respond to than if in- SUE HUGHES . . . . . . . . . . . PayneGroup
egy in place prior to litigation or vestments were made upfront via Seattle
an investigation will ultimately save an ESI readiness strategy. ADAM E . JAFFE . . . . . . . . . . . Huron Consulting Group LLC
New York
the organization time and money. CorporatE rESourCES ARI KAPLAN . . . . . . . . . . . . . Ari Kaplan Advisors
Who is responsible for creating As referenced in the ESI strate-
Millburn, NJ
ROSS KODNER . . . . . . . . . . MicroLaw Inc .
and enforcing the company’s ESI liti- gy discussion, a significant barrier Milwaukee, WI
gation strategy? Of the respondents many companies continue to face is MARC LAURITSEN . . . . . . . . Capstone Practice Systems
Harvard, MA
to the ESI Trends Report, 35% believe tighter resources. According to the JOSEPH D . LEE . . . . . . . . . . Munger, Tolles & Olson LLP
the responsibility for developing and ESI Trends Report, the top challeng- Los Angeles
enforcing the ESI strategy is shared es to responding to ESI requests ANN WALSH LONG . . . . . . . AALL PIC
Oklahoma City, OK
between IT and in-house counsel. were lack of time and human re- DAVID L . NARKIEWICZ . . . . Montgomeryville, PA
This trend is a testament to the tech- sources, lack of correct technology
ALAN PEARLMAN . . . . . . . . The Electronic Lawyer
nical nature of ESI and marks the and unmanageable volumes of ESI. Northbrook, IL
importance of a marriage between These challenges present the need DAVID C . REYMANN . . . . . . Parr Waddoups Brown
Gee & Loveless
the two departments to ensure that to adopt proactive corporate data Salt Lake City, UT
company policy is adequate, all en- management policies (in addition SETH A . RIERSON . . . . . . . . FTI Consulting, Inc .
Chicago
compassing, and feasible when a to an ESI readiness strategy) that al- G . CHRISTOPHER RITTER . The Focal Point LLC
legal crisis breaks. The good news: low for more efficient uses of time, Oakland, CA
85% of organizations believe that IT while easing the burden presented JOEL B . ROTHMAN . . . . . . . Arnstein & Lehr LLP
West Palm Beach, FL
and legal teams are working togeth- by growing data volumes. GEORGE J . SOCHA JR . . . . . SochaConsulting LLC
St . Paul, MN
er effectively when responding to re- Technology is the key to efficien-
JOHN J . SROKA . . . . . . . . . . Duane Morris LLP
quests. While these relationships are cy that will help ease strain on IT Philadelphia
strengthening, they are not without resources. One solution is data ar- BEN WEINBERGER . . . . . . . Lathrop & Gage, L .C .
Kansas City, MO
their challenges. These include role chiving. For instance, consider this
confusion and “language” barriers. sample request from legal to IT: “We LJN’s Legal Tech Newsletter® (ISSN 0738-0186) is published by
Law Journal Newsletters, a division of ALM . © 2010 ALM Media,
After all, legal’s strength lies with need all e-mails from 2001-2002 for LLC . All rights reserved . No reproduction of any portion of this
issue is allowed without written permission from the publisher .
“legalese,” while IT’s strength lies X, Y, Z custodians.” Prior to imple- Telephone: (877) 256-2472;
Editorial e-mail: ssalkin@alm .com
menting an archiving system, IT Circulation e-mail: customercare@alm .com
Regina A. Jytyla, Esq. is a manag- personnel would have to restore e- Reprints: www .almreprints .com
ing staff attorney at Kroll Ontrack. mails contained on backup tapes, POSTMASTER: Send address changes to:
ALM
She tracks and reports on the evolv- save the e-mails to a PST (personal 120 Broadway, New York, NY 10271
ing law and technology in the areas storage folder), then save the data
Published Monthly by:
of litigation readiness and manage- to a CD and mail that CD to the per- Law Journal Newsletters
ment of ESI, electronic discovery, son who submitted the request. 1617 JFK Boulevard, Suite 1750, Philadelphia, PA 19103
www .ljnonline .com
and computer forensics. Kelly D. Now, IT has options for more effi-
Kubacki, Esq. is lead law clerk for cient records management through
Kroll Ontrack. continued on page 6
2 LJN’s Legal Tech Newsletter ❖ www.ljnonline.com/alm?lt February 2010

3. Challenges and often requires law firms to allocate to collect the precise data it wants,
or add more staff, have staff become and from its point of view, the im-
Solutions for more specialized in their duties, in- pact on the firm is minor. However,
Electronic Billing crease the amount of time it takes those “minor” elements quickly add
up when a firm has many clients
to collect on invoices, spend more
By Ryan E. Ladisic attorney time on billing, and work that require e-billing, each with
from incorrect or incomplete data in their own customizations. Provid-
Coming into 2010, it has become the collections process. ing three customizations for a client
clear that, for law firms, not only is So how do law firms take advan- presents little challenge. But provid-
electronic billing here to stay, but tage of the benefits e-billing can of- ing 135 customizations for 45 clients
adoption by corporate clients will fer? Like many things, the first step severely limits efficiency. In fact, the
continue to accelerate. is acceptance. Next, a firm needs to average client will take roughly five
In principal, the benefits to a firm evaluate the options, then construct man-hours of time to set up for e-
are obvious and sound. The corpo- a plan and follow through. By look- billing.
rate legal department will receive its ing for ways to automate the process The problem will only grow as
bills electronically through a single and develop standardized internal more organizations adopt e-billing.
interface that also allows it to route, procedures, law firms can overcome According to an Altman Weil Study
review and approve them. As a re- many of the hurdles and costs in- in 2005, 10.3% of corporations sur-
sult, a law firm should be able to volved with e-billing and realize veyed used e-billing. By 2007, 22.2%
more easily ensure compliance with many of the benefits it offers. of corporations surveyed had ad-
the client’s guidelines, expedite dis- laCk of StandardIzatIon opted e-billing. And according to a
pute resolution when there is an is- The greatest logistical problem recent study by Serengeti, 44% of
sue, create valuable data that can be when it comes to e-billing is a lack the 400 organizations it surveyed
mined for internal use, “go green” of standardized protocols. This prob- are considering it.
by cutting down on paper and mail- lem is not related to any particular thE E-BIllIng proCESS
ings, and ultimately accelerate pay- vendor; it’s based on the plethora of For law firms, the logistics of e-
ment cycles. On the face of it, the vendors and the fact that so many billing will only grow more compli-
only expenses are the small fees re- corporate law departments have ex- cated as more clients require it. It
quired by e-billing vendors. pectations about e-billing from their takes more work, not less, for law
not So SImplE law firms. firms to e-bill. During the initial set
However, there is a fundamental As an analogy, Outlook and Gmail up for each client, the law firm usu-
flaw in that principal argument. It as- are both outstanding e-mail clients, ally has 30 days to bring a client on-
sumes a single e-billing vendor and but they work differently. The inter- line. This can be relatively simple if
faces are different. The buttons are the client is using an e-billing vendor
a single set of client billing guide-
in different places. Both do the job, with which the firm is familiar, or
lines, using a single file format that
but learning and remembering how more complicated if it is all new. And
can deliver these benefits. The real-
to use both systems simultaneously while many firms have honed the
ity is that there are multiple e-billing
can be a minor hassle. Now imagine initial set-up process, there are still
vendors and multiple file formats. To
having to learn 29-plus more appli- costs associated with it. Larger firms
illustrate this point, the December
cations. have dedicated staff just to bring
2008 ILTA E-Billing Survey identified
To support the existing unique new clients online. And as more cli-
29 commercially available e-billing
billing requirements, clients also of- ents demand e-billing, this problem
vendors (this doesn’t include the
ten require custom codes, adding to will grow, even as law firms learn to
roughly 50 corporations that have
the logistical challenges of e-billing. improve efficiency in this area.
developed their own system or re-
While most vendor and client sys- Even after a client is set up, e-
quire invoices to be sent via e-mail). billing is still more complicated and
tems are largely based off the Uni-
Couple that with the roughly 1,300 time consuming than a paper pro-
form Task-Based Management Sys-
corporations with their own unique cess. Both paper and electronic bills
tem (“UTBMS”) and Legal Electronic
submission guidelines, using one of start when the creation of a “pre-
Data Exchange Standard (“LEDES”),
the afore-mentioned systems, and bill” is distributed, an attorney edits
each vendor has a somewhat differ-
the challenges that a law firm faces it and the billing department posts
ent protocol for uploading and track-
should become clear. Because it’s a the bill. With a paper bill, there are
ing. And every client seems to have
major departure from paper billing just a few simple steps after the at-
at least one or two (and sometimes
(print-stuff-send), electronic billing torney’s review — the printing, en-
many more) minor adjustments to ei-
Ryan Ladisic is Senior Vice Presi- ther the exchange standard or, more velope stuffing and mailing.
dent of Global Sales and Marketing likely, the task codes. But an average e-bill takes eight
at e-billingHub. He can be reached These custom codes and addi- steps to process. A typical process
at ryan@e-billinghub.com. tional data elements allow the client continued on page 4
February 2010 LJN’s Legal Tech Newsletter ❖ www.ljnonline.com/alm?lt 3

4. Electronic Billing complex as each client expects know the exact procedures for ex-
compliance with its own guidelines. pediting six- and seven-figure bills.
continued from page 3 While these rules should be prop- thE tImIng ChallEngES
goes something like this: First, the erly maintained in the firm’s time wIth CollECtIonS
bill must be printed to a file based and billing system, the information e-Billing can also cause a law
on a template that has been devel- in the system is only as good as the firm’s billing cycles and the client’s
oped for that specific client. Then, data that is entered (or a sticky note payment cycles to go askew. Con-
it goes to a shared drive for review. pinned up in someone’s office). As sider a law firm that sends out 500
Next, the biller may need to manu- the sheer volume of data grows, e-bills to 27 clients. If, for example,
ally manipulate the file or conduct more work will be required in order 20% of those bills are rejected and
spot checks. The biller then must to manually maintain these rules — must be recoded and resent, the
log on to the e-billing system, find and deal with the fallout when they overall collection cycle expands. On
the client and upload the bill. If the are not applied properly. average, this can mean an extra 11
bill is accepted, the confirmation Clients also do not codify all their days to get paid across the board.
must be recorded; if the bill is re- expectations. A client may, for exam- That nearly two-week increase in
jected, the process begins all over ple, flag every entry that contains the payment times can quickly add up
again. The billers may also have to word “draft” for further review. But to a significant amount of delayed
verify that the client has previously there may not be a clear guideline revenue for a law firm. For exam-
approved the timekeepers. Clients about it. This is likely to cause delays ple, if a firm that sends $3.5 million
may have other unique guidelines in review — or worse if the in-house worth of billings electronically each
that law firms are expected to ad- counsel initially rejects the bill. month receives payment just seven
here to, along with technical re- fInanCIal ImpaCt days later than expected (costing
quirements related to the e-billing Of course, the ability to process the firm a week’s interest per year),
vendor. bills correctly and receive payment the result is a $40,385 hit to the bot-
With e-billing systems, capacity in a timely manner impacts a firm’s tom line.
issues and server space are also cash flow. e-Billing can actually low- Further problems can arise if a
issues (while storage costs are de- er profit margins, since more work client’s bill gets put into the col-
creasing, they are not free) when it is required to process an electronic lection process. For example, a firm
comes to processing the bills, and invoice than a paper one. may bill on the first of the month,
law firms must work closely with Write-downs due to e-billing be- but when a bill is rejected, written
their IT departments to manage the comes another issue for law firms. down and resubmitted, the cycle
technical requirements involved in Many firms simply write off rejected changes. While a firm may work on
serving the growing number of e- invoices of $500 or less (rather than a schedule of submitting bills the
billing clients. resubmitting), because pursuing first day of the month, issues may
nEw rolES and collections of such small sums is not cause a delay in the time that a cli-
rESponSIBIlItIES worth the effort. If a firm has many ent accepts it until the 15th of the
Once a law firm has developed of these small write-downs because month. The firm thinks the bill is
hardware and software systems for of e-billing glitches, the sums can 15 days older than the client does,
e-billing, it must then consider the add up over time. perhaps causing the collections de-
roles and responsibilities of those The increased amount of time that partment to:
in the billing department. These attorneys must devote to e-billing • Make collection calls at inap-
staff members are often less pro- takes another bite out of revenue. propriate times. This includes
ductive with e-billing than they are An attorney may spend only an ex- partner time, and it can have a
with paper bills. Typically, one full- tra 15 minutes a month on resolving negative impact on client rela-
time staff member can process 250 e-billing issues, but in a firm with tionships;
e-bills every month, assuming few 100 partners who bill $400 an hour, • Contact billers, which requires
problems with the bills and a tried- a firm loses $10,000 in revenue ev- those in the collection depart-
and-true process. Unfortunately, cli- ery month on managing e-billing ment to stop and start their
ents bounce back e-bills because of questions and problems. work in order to determine
problems, which require even more In response to these concerns, whether to make a call; and
staff time to straighten out. many law firms are putting ex- continued on page 8
The dynamics of roadblocks and tremely elaborate backup systems
thresholds also become magnified in place. Those that do not may be
as more clients and more matters putting themselves at risk when ALM Reprints
are handled via e-billing. Correctly only one person understands the Turn your good press into great marketing!
Contact us at: 347-227-3382 or visit
formatting and distributing e-bills collections system. If that person is www.almreprints.com
in an acceptable manner for pay- called out of the office unexpectedly Reprints are available in paper and PDF format.
ment becomes increasingly more or leaves the firm, no one else may
4 LJN’s Legal Tech Newsletter ❖ www.ljnonline.com/alm?lt February 2010

5. The Enigmatic also began to cover electronically evolved from a few names to a
stored information (“ESI”) manage- broadcast outlet, which, according
Posse List ment and e-discovery conferences. to Bufithis, responds to almost 200
By Ari L. Kaplan goIng gloBal e-mails per week. He also notes that
“When we started The Posse List the organization maintains 90 dif-
About eight years ago, Washing- in 2002, our base was contract attor- ferent job lists that are divided by
ton, DC, bankruptcy lawyer Greg neys in document review and pro- city, state and region across the U.S.,
Bufithis semi-retired and began par- duction on large cases that required Canada, Asia and Europe, where Bu-
ticipating in large document review an army of reviewers called in like fithis actually lives. His wife works
projects. After a few, he realized that a posse at the last minute,” says Bu- with the European Commission in
there was no centralized source for fithis. As technology improved, the Brussels and he splits his time be-
temporary attorneys to learn about need for these large teams declined, tween their homes in Washington,
these opportunities. Ever the entre- but the hunger for additional infor- DC, and Brussels.
preneur, he created one. mation and expertise in e-discovery The intercontinental nature of his
He initially registered a Yahoo! continued to grow. work allowed The Posse List (Eu-
group that grew to about 200 rope) and The Posse List (Asia) to
That growth expanded interna-
names in a few months and even- form the core of Project Counsel, a
tionally, and as Bufithis and his
tually migrated to an independent European-based staffing agency that
team increasingly focused on the
mailing list originally called “Con- provides e-discovery and computer
impact of ESI management on cross-
tract Attorney Job List.” Then one forensic specialists for law firms and
border litigation and investigations,
day, Bufithis was reviewing docu- corporations overseas. To allay fears
he launched The Posse List (Eu-
ments and a colleague he did not of those staffing firms that pay for
rope) and The Posse List (Asia). The
know approached him and said: U.S.-based project listings, he notes:
E-Discovery Reading Room soon
“Hey, Kevin at the end of the table “We don’t touch the U.S. market; my
followed. This central location for
sent me and said I should join your interests are strictly in Europe and
contract attorneys, vendors and oth-
posse,” Bufithis recalls. “So a name Asia.”
ers to learn about ESI, cloud com-
was born and we created a Web puting and general issues related
morE E-dISCovEry In-houSE
site around The Posse List (www. Based on his coverage of the in-
to modern litigation is part of the
theposselist.com).” dustry, Bufithis predicts that 2010
network of Web sites that attracts
According to Bufithis, the initial will see in-house counsel continue
forensics consultants, paralegals, in-
mission of the now 18,000-plus to take back control from outside
house counsel, law firm attorneys,
member Posse List was simply to counsel and manage their ESI pri-
solo practitioners, e-discovery ven-
help others find jobs by posting or to any litigation. “The reality is
dors, legal media and others, in ad-
project listings through agencies, that GCs want to get control of their
dition to the original population of
law firms and companies looking ESI at the very beginning,” he notes
contract lawyers.
for temporary attorneys, paralegals suggesting that the new model will
The company has four part-time be less of an early case assessment,
and computer forensics personnel. employees that support the online
Bufithis quickly realized that the and more of an early information
activities of the original site and its assessment, which requires that
list could offer more and began es- sister site, The Posse Ranch, which compliant systems be in place be-
tablishing relationships with agen- concentrates on solo practitioners fore the initiation of any action.
cies, corporations and online job and those seeking to leave the doc- Bufithis can relate. The Posse
sites to feed posts into their net- ument review market. Four other List is launching a series of pro-
works. He personally contacted law part-time attorneys drawn from The files to continue to provide insight
firms to obtain background infor- Posse List help Bufithis cover vari- and perspective on the industry to
mation on projects to provide ad- ous law-related conferences around foster forward momentum. And,
ditional detail to his members. He the world, including the Masters he promises, “we’ll keep adding to
Ari L. Kaplan, the principal of Ari Conference, the Georgetown Law that knowledge base so readers can
Kaplan Advisors, is a lawyer and a CLE Advanced E-Discovery Insti- have a reference point.”
writer based in the New York area. tute, the IQPC conferences, the As-
A member of this newsletter’s Board sociation of Corporate Counsel An- —❖—
of Editors, he is the author of The nual Meeting and LegalTech, among
Opportunity Maker: Inspiring Your others. “Any conference in the U.S., The publisher of this newsletter is not engaged in rendering
Legal Career Through Creative Net- Europe and Asia that touches on e- legal, accounting, financial, investment advisory or other
professional services, and this publication is not meant to
working and Business Development discovery or ESI management, we constitute legal, accounting, financial, investment advisory
(Thomson-West, 2008). He can be cover,” he says. or other professional advice. If legal, financial, investment
advisory or other professional assistance is required, the ser-
reached via www.arikaplanadvisors. Given the transformation of vices of a competent professional person should be sought.
com. modern media, The Posse List has
February 2010 LJN’s Legal Tech Newsletter ❖ www.ljnonline.com/alm?lt 5

6. ESI Management frequent litigation than many other therefore issued an adverse infer-
industries. This makes investment ence instruction.
continued from page 2 and budget protection for ESI readi- BE proaCtIvE
ness even more important for these Updating ESI policies to account
archiving. Records compliance man-
at-risk corporations. While it may for technological advancements is
agement archival systems should
seem tempting to make budgetary also important for corporate data se-
be utilized by IT departments to
deductions for ESI-involved pro- curity. According to the ESI Trends Re-
manage the storage of all business
cesses, doing so may decrease the port, corporations experience almost
records (not just e-mail), ensuring
company’s ability to effectively re- two data breaches annually that can
compliance with all regulatory and
legal requirements. Archiving also spond to e-discovery requests and present several legal and technical is-
allows IT to efficiently enforce the may result in more money being sues. Overwhelmingly, corporations
document retention policy. A litiga- spent in the courtroom. cite IT as the “go-to” when a breach
tion hold can quickly be put into polICy updatES and occurs, which again raises the prob-
place when the need arises, and data SECurIty lem of tight resources and the need
fewer human resources are required. Your company has now imple- for proactive data management. One
Properly implementing a litigation mented a properly funded ESI readi- way to proactively approach data se-
hold is vital to fulfilling e-discovery ness strategy and thus is prepared to curity breaches is to implement an
obligations, and shortcomings may handle all future requests … right? incident response plan. A response
lead to sanctions. For example, in Unfortunately not. Document reten- plan should identify:
KCH Services, Inc. v. Vanaire, Inc., tion policies and ESI discovery strat- • Possible sources of electroni-
2009 WL 22166014 (W.D.Ky July egy plans should be treated the same cally stored information to in-
21, 2009), the Western District of way as disaster recovery and busi- vestigate;
Kentucky granted the plaintiff’s mo- ness continuity policies. Each policy • The person(s) who will be con-
tion for adverse inference sanctions, should be examined, tested and up- ducting that investigation; and
finding the defendant’s failure to dated on an annual basis to ensure • The person(s) who will have
preserve ESI evinced a “continued the plan continues to meet the risk decision-making authority in
unwillingness to place a meaning- management needs of the company. the event of a data breach.
ful litigation hold” on potentially re- Tweaks to the policy must be made In addition, it is important to re-
sponsive data. In addition, many ar- to account for emerging technolo- member that any computer inves-
chiving systems will allow users to gies, such as mobile devices and so- tigation of a data breach incident
search through potentially respon- cial networking sites. According to must be conducted in a forensically
sive data, effectively minimizing the the ESI Trends Report, corporations sound manner in order to ensure
volume of data that ultimately will are more likely to revisit ESI readi- that the results of the investigation
need to be restored. ness policies to include mobile de- will hold up in court, if necessary.
In addition to tighter human re- vices than instant messaging, cloud One way to proactively approach
sources, budgeting is an issue for computing and virtualization, or data management is to create an ap-
IT departments and corporations in social networking sites. The failure plication inventory and data map.
general. According to the ESI Trends to account for changes in technol- This will identify key sources of ESI
Report, IT personnel believe their or- ogy and new sources of potentially and important human resources that
ganization spends roughly $400,000 responsive data can lead to the fail- will provide organization to IT en-
more on ESI management policies ure to properly preserve and pro- vironments that are often an “un-
than legal does. One reason for the duce all pertinent data. Courts are charted morass” of individual hard
discrepancy may be due to the fact unwilling to provide a “free pass” to drives, servers and removable media.
that implementing ESI policies often companies who fail to address these Implementing a data map will allow
requires money to be spent from IT issues, as evidenced by a recent rul- for policy updates to be made more
budgets, although this certainly is ing by the Middle District of Florida, easily to reflect emerging technolo-
not true for every company. Southeastern Mechanical Services v. gies (such as those discussed above),
Regardless of what department’s Brody, 2009 WL 2883057 (M.D.Fla. and will also decrease the often
budget funds ESI management, Aug. 321, 2009). In this case, a com- time-consuming and expensive task
proper funding for legal and regula- puter forensics expert testified that of searching for information when
tory needs is essential. The amount the defendant intentionally wiped confronted with a lawsuit or data
of money devoted to the creation, all data from BlackBerry® smart investigation. A data map will also
implementation and management phones. Given the nature of the de- help the corporation’s security inci-
of these policies may depend on stroyed evidence (personal e-mails, dent response team defend against
the risk posed by the company’s telephone records, text messages possible infections and identify the
industry. For example, pharmaceu- and calendar entries), the court de- effects of an infection should one oc-
tical and financial companies have termined the evidence was likely cur. Responding to a security breach
a higher risk and experience more unfavorable to the defendants and continued on page 7
6 LJN’s Legal Tech Newsletter ❖ www.ljnonline.com/alm?lt February 2010

7. ESI Management ConCluSIon ing “catch-up” when an unexpected
Everything learned from the request for ESI occurs. Increased
continued from page 6 collaboration between IT and legal
Third Annual ESI Trends Report
properly and quickly matters, as it suggests that awareness of ESI has departments will aid in all phases
may help keep breaches out of the reached a pinnacle. Corporations of information management from
news spotlight, saving the compa- must now refocus and implement properly securing critical business
ny’s reputation and goodwill. (For defensible practices and strate- data to establishing effective litiga-
more on creating a data map, see, gies that will effectively manage tion hold procedures. This working
“X Marks the Spot: Lessons Learned currents risks and future costs. A relationship is also vital to ensure
from the Data Map Process,” in the company’s failure to prepare for e- reasonable care is exercised when
Sept. ’09 issue of LJN’s Legal Tech discovery increases the vulnerabil- providing complete and efficient
Newsletter, available at www.ljnon ity to shortcomings that could cost responses to ESI requests.
line.com/issues/ljn_legaltech/27_6/ the organization significantly in the —❖—
news/152676-1.html.) form of sanctions, as well as play-
Open Source Routers fic is handled. And because the system of the computer that you’re
repurposing. Older processors run
software source code that powers
continued from page 1 the software just fine, but you will
the router is open source and avail-
able for anyone to modify, there is need to add an additional network
Law firms and companies employ
a built-in sense of trust — nothing card so it can handle the appropri-
high-powered routers (e.g., from
is hidden by proprietary business ate routing tasks.
Cisco) to protect against rouge hack-
interests. On the other end of the spectrum,
ers and nefarious viruses. Home us-
there are commercial products such
ers typically use commercial rout- opEn SourCE CoStS as SmoothWall (www.smoothwall.
ers from companies like Linksys, The biggest benefit by far with
com) and Vyatta (www.vyatta.com)
D-Link or Netgear that are liberally open source routers is cost. Open
that are open-source at their core
available from local big box elec- source routers are almost always
but commercially packaged. While
tronics stores. available at a lower cost, sometimes
you may still be able to download
A router manages Internet traffic as much as half of what one would
a free software version from these
to multiple computers on an inter- pay for a commercial product. This
companies for testing purposes,
nal network. If you have a desktop is understandably why most people
they have developed a business
and wireless laptop at home, the consider the open source alternative.
around packaging their software
router receives the Internet pipe Open source software is often er-
into hardware. (On the consumer
from the DSL or cable modem, and roneously considered to be “free”
side, you can “hack” common rout-
then disburses the traffic to each of as in it doesn’t cost any money.
ers from Linksys with software such
the computers in the house. Rout- And while the open source move-
as dd-wrt (www.dd-wrt.com.))
ers offer important settings to block ment regularly uses the term “free
unwanted traffic and Web-borne vi- software,” it refers to “free” as in why go opEn SourCE?
ruses from getting into an internal “free speech,” not free as in $0. This Originally, open source routers
network. ideology stems from the fact that took a back seat to commercial prod-
A commercially available router the software is freely available for ucts in terms of features. In recent
is limited to the settings and fea- anyone to copy, reuse, and modify years, however, open source routers
tures that are built into the product. for the benefit of the greater com- have vastly improved their offerings
A router based on an open source munity. to where they strongly compete with
platform, however, offers a broad their commercial brethren.
routErS and douBtErS After cost, the next major reason
set of options for customizing and Open source routers can be de-
tweaking the way that Internet traf- people turn to open source routers
ployed in different configurations.
is flexibility. Where some features
On one end, you have the com-
are non-existent on commercial
Brett Burney is Principal of Burney pletely user supported projects such
routers, the open source alternative
Consultants LLC, where he works as pfSense (www.pfsense.com), IP-
is almost infinitely customizable for
with law firms and corporations on Cop (www.ipcop.org) and m0n0wall
whatever need you have.
managing electronic data for litiga- (www.m0n0.ch) that are based on
tion matters. He is a member of this basic distributions of FreeBSD (a continued on page 8
newsletter’s Board of Editors and version of Unix) or Linux.
a frequent contributor to Law.com In these models, you simply Follow Us on
download the router software and
T wIT TER !
and Law Technology News maga-
zine. You can e-mail him at burney@ supply your own, older, out-of-
burneyconsultants.com and visit his work PC for the hardware side. The
http://twitter.com/stevesalkin
blog at www.ediscoveryinfo.com. software becomes the operating
February 2010 LJN’s Legal Tech Newsletter ❖ www.ljnonline.com/alm?lt 7

8. Open Source Routers open source routers are better pur- over and above what a commercial
posed for router operating systems, product typically allows.
continued from page 7 something for which Windows was There is a good amount of help
Furthermore, many people report not originally designed. available on the Web for supporting
that open source routers provide Manoukian explains that com- open source routers, but one should
better performance because they mercial-based routers are basically hesitate to venture into the open
can install the software on a vari- lightweight PCs with extra network source storm unless he or she is
ety of different hardware platforms. adapters. So if the general public comfortable with their knowledge of
In other words, they are not locked has all the pieces to make their own routers, Internet traffic and internal
into the hardware supplied by a router (an older computer with ex- networks. For example, to success-
manufacturer. tra network cards), then why pay fully deploy an open source router,
Mark Manoukian, IT Director at you’ll need to be familiar with using
for someone else to make them?
Columbus, OH’s Kegler Brown Hill a command-line interface (plus, hav-
Manoukian recognizes that not
& Ritter (www.keglerbrown.com), ing a strong knowledge of Unix/Li-
everyone is comfortable with this
elected to go with the open source nux certainly won’t hurt.) While most
approach, in which case he sug-
router software IPCop after he had open source routers offer a friendlier
gests considering a commercially graphical interface available from an
budgeted $20,000-$30,000 for com- packaged open source router (such
mercial equipment. He had an op- Internet browser, you will most cer-
as SmoothWall or Vyatta) that still tainly have to dig around the com-
portunity to test out IPCop before
costs much less than its proprietary mand line to squeeze the most func-
committing a big hunk of his bud-
cousins. tionality out of the router.
get, and discovered that IPCop did
everything the firm needed in a kEEpIng an opEn mInd With Cisco reportedly holding
router — and more. The open source route is not for 80% of the market share in enter-
IPCop comes with a bevy of sup- everyone. The majority of legal IT prise-grade routers, the open source
ported features “out of the box,” but personnel are happy just buying router field isn’t much of a threat.
supports many add-ons. Manoukian from the shelf, plugging it in, and But more and more people are start-
and his team have since added URL going along their merry way. ing to take note of the offerings in
filtering and Web monitoring to But for those who are interested the open source router area, and its
their standard IPCop setup. in tinkering, an open source router impact is growing.
Manoukian states that the Linux is an excellent way to tweak and —❖—
or Unix distributions that power customize a firm’s Internet traffic
Electronic Billing Post-Its) of a few people, a higher information about individual in-
percentage of e-bills go out right voices.
continued from page 4 the first time. Law firms should au- ConCluSIon
• Misunderstand when payment tomate the process to the extent When law firms drill down into
is coming, causing potentially possible. A good automated process the expenses involved with e-bill-
inaccurate financial projections. includes tools that provide for: ing, it’s almost enough to make at-
SolutIonS for law fIrmS • Easy building of templates for torneys and staff long for the days
As e-billing has grown, many law each client (based on their of paper billing. However, the paper
firms may be scrambling to keep guidelines, rules, etc.); bill is quickly becoming a thing of
up if they lack comprehensive, au- • A library with different bill formats the past. Law firms should instead
tomated processes and procedures. in order to optimize efficiency; focus on how they can ease the task
Currently, they may be relying on a • Validation of each invoice against of e-billing by working with clients
“management by Post-It” approach. the rules and guidelines for that
and vendors to ensure the right bill
But while technology has created client;
is submitted the right way, so it can
many challenges when it comes to • A single upload interface, avoid-
be paid as quickly as possible with
e-billing, technology can also help ing the need to learn up to 29
the least amount of work involved
solve many of these problems. As (or more) different systems;
and yield the most valuable data to
with any repeatable process, auto- • Automated tracking of rejec-
the client. By automating process-
mation can be the key. Technology tions and invoice status in a
es and standardizing systems, law
adds efficiency and, perhaps more single database (no matter the
firms can e-bill much more quickly,
importantly, control. As more and client or e-billing vendor); and
more processes are reliant on sys- effectively and efficiently.
• A mechanism that allows for the
tems rather than the memory (or input of comments, status and —❖—
To order this newsletter, call: On the web at:
1-877-256-2472 www.ljnonline.com
8 LJN’s Legal Tech Newsletter ❖ www.ljnonline.com/alm?lt February 2010