http://www.australianit.news.com.au/story/0,24897,22590015-24169,00.html By Karen Dearne October 16, 2007 TOUGH new rules on the production of electronic records in court actions aim to put a stop to e-document "shredding", says Joe Fantuzzi, chief executive of rising content compliance provider Workshare. "People in organisations who feel they can shred electronically stored documents that may be subject to litigation are driving laws like the US Federal Rules of Civil Procedure in e-discovery," he says. "It's not much different from the paper shredding that brought down Enron and Arthur Andersen six years ago." Under the federal rules, if there is a "reasonable anticipation" that information will be required (not just in current actions, but prospective ones as well) organisations are required to preserve the material for potential discovery. "This means that you cannot take files out of the archives and tidy them up a bit," Fantuzzi says. "Many people are tempted to do that: let's just clean up a few words in this document, alter a few words in that email, using a kind of electronic whiteout. "This is just not allowed in the US now, and with the introduction of new legislation in Britain and Victoria we're starting to see countries take control of electronic paper shredding." Adrian Briscoe, general manager of electronic data recovery veteran Kroll Ontrack, says "litigation readiness" is the buzz phrase for 2007, with lawyers packing out recent forums in Melbourne and Sydney. E-discovery has moved far beyond the idea of finding a single "smoking gun" document, to producing whole sets of incriminating evidence for presentation to a court. "Ten years ago, computer forensics was very much a grey art, and people saw it as the next big thing," Briscoe says. "That has really been superseded. Now it's all about processing loads of documents in order to build a haystack of golden documents for the para-legals to search, rather than a finding a single golden document." The sheer volume of data is a big issue, as any one company will hold hundreds of backup tapes in storage, Briscoe says. "Right now, companies are coming to us saying they have a cardboard box full of tapes, and they really need to know what's on them because their legal counsel are asking what people could ask them to hand over. "Businesses will have to get to the point where they can understand what they need to keep and how to store it. The storage medium has to be accessible, and accessible quickly." Many people are building litigation databases so that documents can be opened in the native file format, exposing the metadata, the hidden information associated with every e-document that is not visible during normal viewing or printing, he says. Metadata, usually generated automatically, includes details about the document's creation, the history of edits or changes, and technical information. It can also include details added by users, such as comment fields. Courts prefer documents to be provided in their native format, both to ensure the material has not been tampered with and to expose information contained within individual cells of an Excel spreadsheet, for example. "The only true means of seeing what's in the original document is to open it up in the original application," Briscoe says. Hidden data also has a flipside: authors of PDF and Microsoft Word documents may unwittingly send more information than intended. Fantuzzi says the embarrassment is usually minimal - at worst you could lose a customer. It's common to reuse documents - as a template for a sales pitch, for example. "You might find hidden data goes out to a new customer that tells them something about a previous customer, including your pricing for a product or service," Fantuzzi says. "This is the time to ensure your documents are clean. "It's important to make sure you don't store information that you don't have to store, so risk information is not in your vaults when you come under litigation. "Privacy, data protection and intellectual property laws also have to be considered in content risk management. Many laws tell you not to retain information beyond a specified period. So you should keep data as long as required and, if it's no longer needed, you should destroy it. That's best practice." Research by Workshare suggests less than 20 per cent of companies know what information they have stored, and what regulations apply to that information. "That means 80 per cent don't have a means of identifying what they have," Fantuzzi says. Happily, there are plenty of product vendors and service providers ready to help out. Forrester Research estimates spending on e-discovery technology will rise to nearly $US5 billion by 2011 "as enterprises realise they have no choice" but to comply. Short-term growth for "reactive solutions" will develop into broader retention management strategies that will drive market growth, says Barry Murphy of Forrester. "The biggest direct spend is the processing of data, on average about $US1800 per GB," Murphy says. "Therefore, tools that minimise the amount of data to be processed present potentially huge savings." The largest cost involves the legal professionals who view the data, so visual analytic methods will increase their efficiency in determining whether data is relevant. Maintaining the chain of custody and avoiding "spoliation" is also essential, so data monitoring and lockdown tools will be in demand. Murphy says the present solutions landscape is "filled with startup vendors of questionable viability, software giants with questionable domain experience, and no apples-to-apples comparison mechanism". Oracle is one traditional player that is putting together a comprehensive product, announcing just last week that it had acquired LogicalApps, a leading provider of automated governance, risk and compliance systems. It also released an updated version of its Universal Records Management system with new features for mitigating cost and risk around legal discovery. In September it bought Bridgestream, an enterprise role management software developer for its compliance capabilities. Oracle Asia-Pacific content go-to-market initiatives director Rob Whiter says there has been a major shift in perspective away from first or second-generation records management products "which assumed you would be able to put all of your records into them". "The current generation accepts the fact that records will exist and continue to be maintained within a multitude of systems across the enterprise," Whiter says. Problems involving mobile devices and other media not immediately under corporate control have given rise, "fairly suddenly", to technology for intellectual rights management. "Whereas once you emailed something from your organisation it left your security behind, but now we have tools that give you some kind of control as it travels through the ether and over who should see the information," Whiter says. "We've also invested a lot of effort in our e-discovery toolset. Rather than trying to get people to put documents and records into a repository, we now have a policy engine that allows us to apply holds on information in other systems." Whiter says that although e-discovery is complex because it touches so many aspects in an organisation, the new products will help to solve some of the present problems of security, data retention, identity management and record-keeping. "We've all been aware of the laxness with which we manage our electronic data for a long time, and we've all been very aware that those days would have to come to a close," he says. "Through the draft overhaul of the Privacy Act and other proposed data laws, small and large businesses alike are being told their information is potentially public record, and they must manage it in a decisive and policy-driven way, or they will find themselves exposed. "The moment the impetus becomes compelling this will move very quickly. The industry is responding to the speed with which this will now move." __________________________________________________________________ CSI 2007 is the only conference that delivers a business-focused overview of enterprise security. It will convene 1,500+ delegates, 80 exhibitors and features 100+ sessions/seminars providing a roadmap for integrating policies and procedures with new tools and techniques. Register now for savings on conference fees and/or free exhibits admission. - www.csiannual.com
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