In the age of electronics, backup tapes have become a necessity. Backup tapes allow you to electronically record daily activity done within a business. eClaris’ Backup Tape Extraction Services can provide a safer and quicker method of locating electronically stored information (“ESI”). According to an EMC Online article “most organizations are only just waking up to the fact that among the deluge of day-to-day emails, are some that constitute important business records. These emails need to be recorded and retained as such.” This is why backup tapes have become such a necessity in day to day business activity.

eClaris is now offering our Backup Tape Extraction Services. With this service, reviewing the information of backup tapes has never been easier. A few of the features are:

• Extract and review files and emails from tape without the use of the backup software. 
• Full text and metadata indexing of unstructured files and email.
• All access and modified dates/times are kept intact.
• Easy “Internet like” search query tools to find all relevant files and email.
• Dynamic de-duplication query capability returns only unique files when searching.

This service allows for an easy, hassle-free way to retrieve vital data.

With the majority of information being transmitted electronically, Backup Tape Extraction Services have become a necessity in the modern business world. The Backup Tape Extraction Services that eClaris has to offer is the solution to the problems that many companies now face.

In the age of electronic discovery, being ahead of the game is always key. Here at eClaris, we are offering just that with our Electronic Discovery Appliance. This Appliance gives the client the ability to process data in-house, from a few kilobytes of information to thousands of gigabytes.

According to an article on Yahoo News, “new survey findings indicating that while organizations cite information as their highest business priority in 2009, less than half of business decision-makers have a high confidence level in the quality and accessibility of information within their organizations.” This is why our Appliance is such a valuable tool for businesses.

A few of the features that the In-House Electronic Discovery Appliance has to offer are: native review of information, processing up to 50GB per hour, foreign language support, flexible search and filtering options, easy drag-and-drop file processing and so much more.

The In-House Electronic Discovery Appliance offers in-house processing and review of emails, disks, metadata, images, and so much more. Now, you will be able to do them all from inside the comfort of your own office. The eClaris team will be there to offer support and training as needed.

Lawyers are now on notice that inadequate and “haphazard” keyword searches for relevant electronic stored information are no longer acceptable, write Paul, Weiss, Rifkind, Wharton & Garrison litigation partners H. Christopher Boehning and Daniel J. Toal in this week’s New York Law Journal, “Wake-Up Call on Slipshod Search Terms,” http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202430262330. 

In William A. Gross Constr. Assocs. Inc. v. American Mfrs. Mut. Ins. Co., U.S. Magistrate Andrew J. Peck of the Southern District of New York “appealed for keyword formulations based on careful thought, quality control, testing and cooperation.” That case involved a situation in which one party’s search terms were too narrow while the other’s terms were too broad. Both parties failed to compromise. As a result, Judge Peck was forced to design a methodology “without sufficient input from the parties or the relevant custodian.” He was not pleased with what he acknowledged was a less than perfect result. 

So what does Judge Peck consider an adequate keyword methodology? He gives four requirements. First and foremost, opposing counsel must cooperate. Second, lawyers must carefully design keywords. Third, the custodian of the ESI should participate in the keyword selection process. Finally, the technique should be validated or pass through a quality control process to ensure it is not overinclusive, underinclusive or allow privileged information to be disclosed.  

Peck concludes, “It is time that the Bar --- even those lawyers who did not come of age in the computer era – understand the importance of properly crafted electronic searches.”

Voicemail, Web Conferences and Beyond: How Sound Recordings Are Influencing the Way Corporate Counsel Conduct eDiscovery

By Michael Swarz

Sound recordings have corporate counsel asking questions. With aural data on the rise, and thanks to the recently revised Federal Rules of Civil Procedure (“FRCP”), properly addressing these queries can be — and will be — the difference between winning and losing a case. Corporate counsel must be able to master how audio files operate since they play a pivotal role within the recent court-created electronic data explosion that is electronically stored information (“ESI”).

Audio files are, in short, digitized voice recordings and have become ubiquitous with modern business. Common examples are .wav files of recorded customer service conversations, Web conferences and, of course, voicemail. These previously untouched pieces of evidence are now fully discoverable under the FRCP Rule 34(a), and respective case law, and are truly making their mark on contemporary ESI in ways previously unimagined. Sound recordings now unmistakably fall under the same constraints to pinpoint process and disclose as do other permutations of ESI.

Many corporate attorneys have surely questioned if their time is best spent learning the ins and outs of audio technology. For those who believe that this topic is not relevant, consider this. With the proliferation of business Unified Messaging System (“UMS”) configuration options, e-mail and even text messages are discoverable evidence on a business’ computer desktops and servers. In addition, this now includes voicemail and VOIP because with a UMS system voice messages are transformed into .wav attachments to the actual e-mail itself. Corporate counsel who do not understand the breadth of the sound recordings in their company will surely be left behind.

Consequences and Challenges Of the New Audio eDiscovery Regime

With FRCP Rule 34(a) now positively categorizing “sound recordings” as ESI, eDiscovery will increasingly include audio data as well. As a consequence there will be additional volumes of ESI along with further issues that relate to the duplication and de-duplication of data. Furthermore, the scope of aural file configurations is likely to cause additional headaches. The conventional techniques of evaluating audio files, which traditionally has been listening and then manual transcription, are not suitable to the objective of managing these extra silos of data because they are both not practically scalable to take on a large quantity of files and are just plain expensive.

Corporate counsel will stumble upon similar challenges that would occur in ordinary e-mail-based electronic discovery. Common hurdles will revolve around increased volume. This is because business users will save multiple audio versions that are not under the direct control of company. Furthermore, similar to email, a business’ voice messaging system can be categorized as relevant ESI and accordingly subject to a court’s litigation hold order.

Step One: Education, Education, Education

The corporate attorney needs to first get a handle on the four conventional ways of managing sound recordings: transcription by hand, phonetic search, listening and computer driven transcription. Manual transcription and listening are the most common methods utilized because speech-to-text is not adequately precise enough to fabricate predictable results. Even so, there are pitfalls. Manual transcription will not scale to properly handle large amounts of data and listening lacks the ability to execute searches without re-listening to the soundtrack for each new search. Nonetheless, manual audio transcription remains a popular route particularly for criminal taped proceedings and in cases where a tape recorder is used because a court reporter was not able to be present to tape the testimony.

Furthermore, both methods can be costly as contract attorneys and paralegals are employed for the first pass review and then the attorneys on the case listen in to deduce all potentially relevant recordings to render legal determination as to their usage in court. Since all of the hours involved invariably will add up corporate counsel must educate themselves as to the above options and determine the route that makes the most sense.

How Can I Make Sure My Legal Team Is on Board?

The contemporary age of businesses enacting benchmarks to meet compliance standards arose barely six years ago with the passage of the Sarbanes-Oxley Act. Substantial headway in this arena has been the spike in the usage of technology to promote and develop corporate records management programs and, as mentioned above, the relatively recent modifications to the FRCP that address the ramifications of ESI. These new regulations have caused corporate counsel to increasingly focus their legal departments’ attention on business activities that may have legal repercussions, such as eDiscovery, even if this means running up legal expenses. Frequently overlooked by corporate legal departments is the simple fact that sound recordings are part of modern discovery environs. Corporate counsel must set the tone by notifying their staff and implementing a systematic way of accounting for all company audio files.

Next, in-house legal departments must be ready to perform discovery on these audio files to the extent they do for other paper or electronic documents. This means requesting and producing all discoverable sound recordings. Be sure to recover all accessible audio files that include voicemail and UMS Systems that synchronize voicemail with e-mail such as Web and video phones, which are becoming ever more popular. In addition, corporate counsel must be prepared to dedicate departmental resources to the traditional ways for managing sound files, such as manual recording or truly listening to the audio sounds, if necessary as they may be essential to trial. Corporate counsel should also have their team keep an eye out for audio formats that are proprietary, such as third party data centers, as they may be difficult to admit as evidence.

Finally, in-house counsel need to have their departments understand the notion that although one of the aspirations of the recent FRCP amendments was to have ESI processed in a format reasonably usable, the time and expense necessary to alter a huge quantity of data may be quite high. Have your department realize that they can expect to grapple with this dilemma when dealing with the production and analysis of digitized audio files as well. Fortunately, there are new tools and tactics, as mentioned below, that make it viable to work with audio recordings.

Best Practices for Dealing With Sound Recordings

To start, corporate counsel must maximize technology advances that permit latent phonemes or fundamental aural mechanisms of the sound files. This method has proven to be the most effective way of dealing with computerized audio files because phonetic searches of audio files can take up to 60 times the amount of time that actual transcribing and listening would have taken. This considerable decrease in time does indeed make it possible to swiftly and effortlessly process thousands of hours of recordings. In addition, this method provides rapid searches of the phonetic indices produced by the processing software. With the ever-increasing variations of UMS in digitizing and delivering messages, usually .wav files, to user mailboxes, phonetic searches take on the additional importance of preventing any violation of the discovery obligations under the FRCP to these added forms of data.

After the technology has been selected, corporate counsel should seek an eDiscovery platform that is able to review native documents that are not just paper equivalents. Rather, the platform must be able to directly enable review of any file, electronic, digital, and audio or otherwise that is in common usage in today’s business. Be sure that the platform can efficiently and precisely support voicemail, audio archives from business call logging systems and Web conferences as audio evidence. Companies that ordinarily and routinely record conversations with business associates and clients might have massive amounts of discoverable ESI recordings. These audio files must be kept, preserved, produced and made searchable just as well by the proper eDiscovery platform to minimize errors of judgment brought about by fatigue.

Then, when all is said and done, corporate counsel must be proactive and take the lead. This  means that corporate counsel will be responsible for listening to all audio recordings to determine their relevancy. By doing so, the sound recordings will thus either be deemed eligible or ineligible to be produced at trial or utilized for internal compliance measures. Throughout this process corporate counsel should conduct preliminary searches, specify the subject matter and set priorities for the most urgent audio records. This will allow corporate counsel to spend less time combing over irrelevant information while maximizing their time listening to the pertinent data.

Conclusion

With the recent rise in sound recordings as admissible ESI it is paramount that businesses put procedures in place to ensure that all company aural files satisfy relevant compliance regulations and can be accounted for when litigation is reasonable expected. For each aforementioned scenario the objectives for corporate counsel are the same. Namely, corporate counsel must pinpoint, review and then produce digitized audio files in a manner that is cost effective, accurate and swift.

The chief hurdles likely to be encountered along this path by corporate counsel are the plethora of voice recordings, the challenges of searching through them and the assortment of audio technologies out there to select from. With sound technologies constantly updating corporate counsel must wrestle with the new requisites and be proactive when searching, processing and producing sound recordings.

Without a doubt, discovery of audio files is now a part of the modern ESI environment and is here to stay. Corporate counsel must comprehend how sound technologies work and how data can vanish in the absence of proper safeguarding. Knowing what is at stake always helps. To assess totalities corporate counsel should start by asking themselves if they have a working knowledge of their company’s audio technologies along with how they are stored and managed. Only by intellectually engaging audio technologies and their practical effects will the corporate attorney be able to create a defendable strategy for dealing with their company’s sound recordings at trial.

Famous naturalist John Muir once remarked that “when one tugs at a single thing in nature, he finds it attached to the rest of the world.” With the interconnectedness and globalization of today’s world, the same can be said when dealing with internationally located electronically stored information (ESI). The world is smaller, it seems, than it once was and a host of global discovery archetypes are now being applied to bring cases involving international data to a successful resolution.

In the United States, courts have followed this lead by maintaining, at times, that ESI is fully discoverable, whether or not the individual controlling the ESI is located within United States jurisdiction. This determination is consistent with the well-respected principle that international individuals and entities doing business in the United States are subject to the advantages and drawbacks of United States regulations that, naturally, contain the laws of discovery as well.

The question for counsel has undoubtedly become where to begin in litigating the unique electronic discovery considerations that invariably arise when dealing with international ESI. To successfully navigate these truly uncharted international waters attorneys will need to pay close attention first and foremost to domestic and foreign choice of law considerations. In addition, counsel must be mindful of the concurrent limits of jurisdiction as they relate to the source of each international ESI request.

Beware conflicting laws

The moment international ESI is sought, a United States court must first establish whether discovery will take place under the Federal Rules of Civil Procedure (FRCP) or the Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Convention). The FRCP establishes rules governing civil procedure in the United States and is known quite well to most attorneys. Established in 1938, these rules provide a clear roadmap for civil litigation. Of note within the milieu of electronic discovery is the fact that they were amended on Dec. 1, 2006, to incorporate ESI into the discovery process. Choosing whether to apply the recent FRCP amendments, which have become in essence the default rules in many states, is step one for a court to consider when confronted with international ESI.

Option number two is the previously mentioned Hague Convention. The Hague Convention is a multilateral treaty that was constructed to help resolve differences between civil and common law discovery regulations of its State Parties. Approximately 40 nations and the United States have signed the treaty that provides for obtaining evidence via letters of request, and for the taking of depositions before court-appointed commissioners. Critical to the Hague Convention is Article 9, which maintains that letters of request be executed according to the law of the State Party that is responding to the request. When applied to litigating international ESI in a United States courtroom, this may entail following the rules of other, distinct localities outside of the United States.

Paradigm application

In order to determine which legal standard to apply, especially when dealing with international ESI, most United States courts look to the seminal case of Aerospatiale. In Aerospatiale, the Supreme Court provided clear guidance as to when, and to what extent, United States litigants must adhere to Hague Convention procedures when requesting discovery from an international party. The court mandated that lower courts follow a three-pronged test. Lower courts must reflect on (a) sovereign interests, (b) the specific facts and (c) the probability that Hague Convention protocols will be effective. This three-part test was created in Aerospatiale to protect international parties from unneeded and oppressive discovery, which included electronic discovery.

Taking their cue from Aerospatiale, some United States courts have relied on the FRCP rules citing fast-paced litigation deadlines and the ineffectiveness of Hague Convention protocols in general. In particular these courts are concerned about how long discovery of any sort, electronic or otherwise, would take under the Hague regime.

Conversely and also equally based upon Aerospatiale, other United States courts have preferred the Hague Convention’s regulations if the FRCP rules would subject a party to criminal penalties in their home country or if foreign sovereignty issues are at stake.

In addition to case law, many United States courts look to the Restatement (Third) of the Foreign Relations Law §442 (The Restatement) for guidance when confronted with international ESI. The Restatement provides a clear comity analysis that can be used when struggling over which laws to consider when dealing with foreign entities. Factors enunciated by the Restatement include (1) the significance to the proceedings of the data requested, (2) the measure of particularity of the request, (3) whether information sought emanated in the United States, (4) if identical data could be procured by other means and, perhaps most on point as it relates to choice of law considerations, (5) the contending interests of the nations whose regulations are in conflict.

These indicia have been consistently relied upon by United States courts and are critical to balancing the opposing interests of the United States against the interests of a foreign state when dealing with international ESI.

What if my country did not sign the Hague Convention?

For those nations that are not signatories to the Hague Convention, letters of request can be used to appeal for assistance from a foreign court to obtain (electronic) evidence. The most common remedies sought by letters of request are service of process and obtaining the actual evidence. When seeking service of process on a non-Hague Convention signatory country, a court will usually invoke universal jurisdiction.

Therefore, a person seeking to take an action against a person in another country will need to seek assistance from the judicial authorities in the other country. This is, of course, assuming the foreign court in its own country has jurisdiction to hear the case matter to begin with. In addition, as previously mentioned, United States courts frequently employ letters of request to obtain evidence from a witness. This evidence may be to answer questions relevant to the determination of an issue of fact, or for disclosure of documents or ESI.

In terms of case law, the aforementioned Aerospatiale criteria have not been specifically applied to situations where there is tension between countries that have not signed the Hague Convention and the FRCP. Nevertheless, Aerospatiale did in passing mention benchmarks to factor into any comity examination that can be applied to international ESI as well. These items include (a) the accessibility of substitute methods of acquiring the data, (b) if the data originated in the United States, (c) how detailed the request is, (d) the degree that noncompliance would disturb state interests, and (e) how important the data is to the case.  Courts have frequently employed this balancing test when determining whether to apply the FRCP or the law of the country where discovery, or electronic discovery, was sought.

United States businesses with offshore auxiliaries

The issue of managing international ESI becomes muddier when dealing with United States businesses with affiliates located overseas. Although many courts have shied away from this topic, a recent Illinois court case took this issue head on in Uranium Antitrust. In this case the court deliberated the query of the defendants’ management of the data of business subsidiaries located beyond the physical borders of the United States.

The court then concluded that a balancing test should be established to ascertain if the United States corporations had control over the overseas data. In creating the balancing test, the court measured three variables as represented by the following three questions.

First, did the auxiliary have a management structure that was linked to the United States home branch? Second, what extent of control did the United States home branch have over the subsidiary’s employees? And third, was the United States home branch granted an ownership stake in the affiliate? The more likely a court is to conclude a “yes” to these three questions, the greater the possibility that ESI data at offshore branches will be deemed discoverable in a United States court.

In applying this balancing test, subsequent courts have often gone further and mandated the actual production of foreign data. For example, in Afros v. Krauss, that court ordered the data overseas to be produced since the company had control over the foreign data and the branches abroad were entirely owned. In addition, both the home and auxiliary were organized and run in an interconnected fashion. With recent case law, United States jurisdiction can and will be extended to digital data as well when dealing with international ESI.

Conclusion

There can be no question that in today’s modern, ever-interconnected world, the prospects for litigating matters that involve global ESI considerations are on the rise. What will be interesting to see will be how the discovery of intercontinental ESI actually plays out in United States courts.

As shown above, courts have traditionally placed a high value on domestic considerations and at the same time there are definitive instances when courts alternatively rely on foreign law. Knowing when to shift from one paradigm to the other can and must be based on the variety of above-mentioned balancing tests, hardship and good faith considerations associated with discovery of international ESI.

• Michael Swarz currently works for eClaris Inc., an electronic discovery consultancy and service provider that helps law firms and corporations classify, process and review ® electronically stored information. For more information, visit eclaris.com or call 213/623-1620.

Certification

• This self-study activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one hour.
  
  
• The State Bar of California certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.

Self-Assessment Test

Indicate whether the following statements are true or false after reading the MCLE article. Use the answer form provided to send the test, along with a $25 processing fee, to the State Bar. If you do not receive your certificate within four to six weeks, call 415-538-2504.

1. When confronted with international ESI, United States courts look to the Federal Rules of Civil Procedure or the Hague Convention.
2. The FRCP represents a benchmark for criminal litigation.
3. Before December 2006, the FRCP did not address ESI in a comprehensive fashion.
4. Countries that are not signatories to the Hague Convention can be subject to its jurisdiction under Article 9.
5. The United States is a party to the Hague Convention.
6. Aerospatiale is the seminal case when determining whether to apply the Hague Convention of the FRCP.
7. If it can be shown that the Hague Convention will not be effective, then courts may disregard the Hague Convention and implement the FRCP rules instead when dealing with international ESI.
8. Criminal penalties in foreign countries can be a factor when opting to use the Hague Convention.
9. Time sensitivity of the case life cycle is not a concern to United States courts when grappling with whether to apply the Hague Convention.
10. Under the Restatement balancing test, courts can look at whether information originated in the United States.
11. Courts in the United States can invoke universal jurisdiction when seeking ESI.
12. Dicta in Aerospatiale cite the specificity of the request as a variable when dealing with countries that are not signatories to the Hague Convention.
13. Uranium Antitrust Litigation stands for the proposition that United States courts should never consider foreign law.
14. If a United States home branch has an ownership stake in its affiliate, data found in the affiliate will likely be discoverable.
15. The most common Hague Convention remedies sought by letters of request are service of process and obtaining the actual evidence.
16. Management structure is a key component that must be analyzed when dealing with auxiliary businesses.
17. There has been no instance where the actual production of international ESI has been ordered by a United States court.
18. In Afros v. Krauss, the court was not concerned with the interconnectedness between the parent and subsidiary company.
19. The Hague Convention will point United States courts to follow the law of the state party that is responding to the request.
20. United States courts typically do not employ balancing tests when entertaining the notion that the implementation of foreign law may be a possibility.