Cyberspace October 2009

Outsourcing

Most litigation today involving a business will require the analysis of documents. These are often printed out, but perhaps you want or need to deal with them in electronic form? Many firms simply don't have adequate IT systems to absorb client's discovery data and manage the investigative process.

It might be fine to get a hard disc from your client, but you need to make sure it's backed up in your hands, and you need to duplicate data into a form that you can provide to your opponent or regulatory body. Suddenly you need to store at least four times the amount of data your client gave you, and you just don't have the IT sophistication.

There are a number of bureaus that can assist, although many are in the USA. An example is DOAR (http://www.doar.com/about-doar/news-and-events/press-release-detail.asp?id=91) which allows you to inspect and manage documents stored on a third party server. If you need to do some work in electronic discovery you would be well advised to start with a reputable bureau and use their software as a service (SaaS).

Mobile discovery

When the ACCC (Australian Competition and Consumer Commission) comes calling or discovery looms, we tend to think about paper documents, emails, and documents on file servers. However, there are plenty of places that documents exist and are hard to manage. You or your clients might have some fairly common mobile phones, or iPhones or perhaps even BlackBerries. Discovery or regulatory obligations usually include all mobile devices, so it's important to take an 'enterprise approach' to managing mobile devices. In Southeastern Mechanical Services, Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009) a number of discovery arguments arose, and the court examined the defendant and its staff use of BlackBerry devices. It found that the BlackBerries had been wiped of data, despite forensic evidence that they had been used for data.

The judgement is interesting, but the real issue is that these BlackBerries were not managed in an 'enterprise' fashion. The users could do more or less what they wanted to them, without any centralised backup, synchronisation or reconciliation of the information on them. So while the defendant company put effort into complying with preservation orders, the individual users did not maintain the same discipline.

I'm often asked why big companies do IT in a sluggish, behemoth fashion, with everything locked down. There are really good reasons why. A 'small' change can affect thousands of users. That 'quick reboot late at night' might badly affect staff travelling in other time zones. Any machine needs to have a professionial backup regime. Any server needs to be duplicated at a disaster recovery centre. Any hardware purchased needs to be the same or similar as existing hardware so that staff can support them. Any hardware or software needs to be manageable using enterprise management and monitoring software. Any IT system needs to be able to scale in case the system usage or the company grows. All mobile systems must be capable of remote backup, wiping and disabling. Every new desktop model requires days of testing for compatibility with existing systems. I could go on and on.

So it might be cool to hand out an iPhone or any other phone to your staff, but how is it backed up? What about that crucial SMS that a client sent? What system is in place to automatically capture that information? You need to do it automatically or it won't happen. As your firm or your clients grow you need to use enterprise grade systems. The reason that RIM made it big with the BlackBerry is that it thought about these issues and found some answers. If I lost my BlackBerry my IT team could turn it into a cold lump of useless plastic in a few minutes. Frankly, I don't need to locate or find it - I just need it disabled completely. I understand that there is an enterprise kit for iPhones, but without direct experience I can't say that it has the fundamental systems behind it - backup of SMS, remote wipe, and disabling of private email. Think twice before handing out that glossy device.