Windows shops that ignore electronic discovery requirements could be setting themselves up for some big costs.

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1 THE WINDOWS MANAGER S GUIDE TO E-DISCOVERY INSIDE: CHAPTER 1 What is e-discovery and why should IT shops care? Windows shops that ignore electronic discovery requirements could be setting themselves up for some big costs.

2 CHAPTER 1 E-DISCOVERY? What is e-discovery and why should IT shops care? FOR IT EXECUTIVES, the shift away from paper recordkeeping to the widespread use of electronic sources has been the biggest historical change in the enterprise during the past two decades. Corporate intellectual property and other crucial information about businesses reside in and electronic databases. But only in the past several years have the courts begun to update their guidelines to recognize , or any piece of electronically stored information, as a legal document. Today s laws demand that certain information must be produced and readily available as evidence in legal proceedings. Consequently, the responsibility for mapping and storing data for quick retrieval has fallen into the laps of IT managers. The overall process of collecting and storing this electronic information is known as electronic discovery, or e-discovery. It s not just the job of the legal department or, in certain cases, members of the security team who are already working to comply with government regulations, such as the Sarbanes-Oxley Act, known as SOX. Passed in 2002, SOX defines which records are to be stored and for how long. IT managers are now expected to create and support a matrix of information in such a way that makes sense to the legal department, which has its own view of data and its purpose. IT shops see data as a series of? : e-discovery? Electronic discovery known as e-discovery, refers to any process in which electronic data is sought, located, secured and searched with the intent of using it as evidence in a civil or criminal legal case. E-discovery can be carried out offline on a particular computer or it can be conducted on a network. In e-discovery, data of all types can serve as evidence. This can include text, images, calendar files, databases, spreadsheets, audio files, animation, Web sites, and computer programs. Even malware such as viruses, Trojans and spyware can be secured and investigated. WHATIS.COM 2 THE WINDOWS MANAGER S GUIDE TO E-DISCOVERY

3 CHAPTER 1 E-DISCOVERY?? systems that must be supported. Legal departments see data from an organizational and custodial point of view. The one connection is the collected taxonomy that relates to a custodial structure, which then relates back to data assets, hardware, software, plus structured and unstructured data. IT managers must consider those points of views and merge them in a way that is relevant to all. Failure to do so successfully could be expensive. For IT executives, documentation that cannot be retrieved quickly is going to drain human and technical resources. The costs that can creep up with a litigation hold the demand not to destroy data can run an IT executive in the neighborhood of $10,000 or $20,000 a month in additional costs just to preserve : Sarbanes-Oxley? data and do nothing else, said Scott Steiner, privacy and information risk manager at Cox Enterprises Inc., an Atlanta-based media company. IT executives can leverage this For IT executives, documentation that cannot be retrieved quickly is going to drain human and technical resources. discovery challenge to buy software or build systems that better organize and find data so that users as well as IT and records management staff are all served. The Sarbanes-Oxley Act of 2002, often shortened to SOX, is legislation enacted in response to the high-profile Enron and WorldCom financial scandals to protect shareholders and the general public from accounting errors and fraudulent practices in the enterprise. The act is administered by the Securities and Exchange Commission, which sets deadlines for compliance and publishes rules on requirements. SOX is not a set of business practices and does not specify how a business should store records. Rather, it defines which records are to be stored and for how long. The legislation not only affects the financial side of corporations but also IT departments whose job it is to store a corporation s electronic records. The SOX Act states that all business records, including electronic records and electronic messages, must be saved for five years. The consequences for non-compliance are fines, imprisonment or both. WHATIS.COM 3 THE WINDOWS MANAGER S GUIDE TO E-DISCOVERY

4 CHAPTER 1 E-DISCOVERY? STANDARDIZE OR For corporations developing an e-discovery strategy, it may be a good time to standardize operating systems, file types or equipment because all of those anomalies can cost a fortune to reproduce. For example, IT shops can keep costs in check doing a recovery request across similar Windows XP and Vista desktops, but it will cost more if the team requires additional expertise for a small percent of Linux and Apple Macintosh machines, which have different file types. At Cox, IT managers have customfit the e-discovery software to point at SharePoint so it will supplement the company s efforts to identify all of the locations where an employee Two types of data used in e-discovery: q Structured: systems include applications in billing, accounting, time systems and human resources. q Unstructured: general communication such as , text messages, instant messages and SharePoint content. would store a document such as the C drive, department drive, Web files, thumb drives and other portable storage devices like ipods. Identifying all these storage points is key, although you want to assume a document will exist on a primary workstation rather than a thumb drive first, Steiner said. For the most part, there are two pools of data that must be accounted for by IT structured and unstructured. Structured systems include applications in billing, accounting, time systems and human resources. General communication in particular is unstructured. Some of the newer technologies are also unstructured, such as text messages, instant messages and communications on Microsoft s SharePoint. These types of unstructured communications pose some of the biggest challenges, said Greg Buckles, an independent consultant and CEO at Reason-eD LLC, a Houston-based practice with expertise in data collection and analysis. With the age of also comes the notion that messages can be kept forever. But the growing volume of data will certainly bump up against problems that come with the unstructured nature of . Word documents are also a key piece of raw data to view, but the reality is most of the information will be in the communications stream, Buckles said. 4 THE WINDOWS MANAGER S GUIDE TO E-DISCOVERY

5 The legal investigation is connected to the discovery request is connected to combing through terabytes of archived is connected to your clean bill of health is connected to Symantec Enterprise Vault, the comprehensive archiving solution that makes managing fast, efficient, and thorough. 200 Symantec Corporation. All rights reserved. Symantec, the Symantec Logo, and Enterprise Vault are registered trademarks of Symantec Corporation. Take control of your most important digital assets. Up to 5% of your company s intellectual property is in or instant messaging. Today, a typical ediscovery request can cost IT departments countless hours and dollars to recover the specific range of messages on time. Symantec Enterprise Vault facilitates the legal and business best practices of storing, managing, and discovering and other electronic files. So you re free to focus on the big picture. Learn more at Confidence in a connected world.

6 CHAPTER 1 E-DISCOVERY? IN E-DISCOVERY In recent years, there has been a trend toward buying enterprise systems that help preserve all data types. There are archiving tools that hold and index data, enterprise search systems that can come either as software or appliances and legal hold systems that track content. The problem with any of these systems is that not only are they immature in their development but they were also not initially developed with e-discovery in mind, Buckles said. To cite one example, the archiving industry was created with an interest in moving data off of overloaded Microsoft Exchange Servers. It was only in 2000 or 2001, when corporate scandals broke out, that some of us started looking for tools and adapted tools for [e-discovery] purposes, he said. IT can help itself by pulling together an organizational and material data map, Buckles said. Most of the data for this map is already in place thanks to efforts driven by SOX. Forming the material list are data controls that SOX requires for public corporations and the individuals who deal with those controls. An organizational list can be culled from Microsoft s Active Directory, for example, which most companies have in place. Most corporations have asset control for physical inventory and virtual inventory systems, such as a data repository. There are folders that certain users on the network can see. The idea is that [the legal department] sees things from an owner, custodial standpoint, Buckles said. The foundation is already there, but most companies haven t pulled this together in one place. Not only are [these systems] immature in their development, but they also were not initially developed with e-discovery in mind. GREG BUCKLES INDEPENDENT CONSULTANT AND CEO AT REASON-ED LLC Experts do not doubt that the use of backup tape to preserve data particularly is not a workable solution for any capacity of e-discovery. The amount you spend in just purchasing the tapes and then recovering the data off of the tapes would have quickly paid for any archival system, said Cox s Steiner. 6 THE WINDOWS MANAGER S GUIDE TO E-DISCOVERY

7 Finally, Affordable Enterprise-Class Archiving Introducing Sunbelt Exchange Archiver. Sunbelt Exchange Archiver (SEA) is a robust new product which delivers real enterprise-class archiving, at a price that won t break your budget. Get comprehensive legal and regulatory compliance. Reduce your Exchange storage by up to 80%. Securely store s on your choice of media, using the built-in Hierarchical Storage Management. And, find archived s rapidly with full-text search for e-discovery or compliance. Compliance, e-discovery, and legal readiness. If you need to archive s for regulatory or legal reasons, SEA has you fully covered. s are stored in their original form, in whatever secure media you prefer, with complete flexibility on retention. Need to find an archived ? Simply use SEA s powerful integrated full-text search of s and attachments, and you ll be ready at a moment s notice for e-discovery or legal requests. Seamless end-user experience. SEA is fully transparent for your users, whether they re running Outlook, OWA, Blackberry devices or even Entourage on the Mac with no special client software needed. Trusted end users can be delegated granular authority with the included web-interface or optional Outlook add-in. They can do off-line synchronization, and search, edit, forward, move or delete archived s. Exchange performance is suffering. Your users complain about storage. Your CEO wants legal compliance. Now what? Learn more at Up to 80% smaller message store. With SEA, you ll dramatically reduce your Exchange storage. The benefits are clear: faster backup times, better Exchange performance, and faster recovery. Journaling not required. It s a fact that using the Exchange Journaling mailbox for archiving dramatically affects server performance. With SEA, Journaling is an option the program s breakthrough Direct Archiving feature stores all s immediately after they are received, keeping load off the Exchange server. No more PST headaches! SEA gets rid of pesky PST files that are a major admin headache. SEA automatically finds them, imports them, and makes them part of your user s archive. Great for disaster recovery. No matter where you is stored, business continuity is assured with SEA. Using the included web client, users can continue to see and use their even if Exchange is down. Archiving s time has come for everyone. Contact us today and see how SEA solves your legal and compliance headaches and immediately improves the performance of Exchange while saving critical budget dollars. Get a Free Quote and See How Cost-effective Sunbelt Exchange Archiver Really Is! sales@sunbeltsoftware.com or call Sunbelt Software Tel: or Fax: sales@sunbeltsoftware.com Sunbelt Software. All rights reserved. Sunbelt Exchange Archiver is a trademark of Sunbelt Software. All trademarks used are owned by their respective owners.

8 CHAPTER 1 E-DISCOVERY? MEET LEGAL archiving has been around for some time, and penetration rates are growing. Microsoft Exchange Server 200 has improved its archiving and records retention features, as has Microsoft Office SharePoint Server 200. For enterprises not yet on those platforms, there are also thirdparty software companies such as Zantaz or Seagate Technology that offer this infrastructure. Some experts suggest that enterprises invest in an -archiving system with automated management of record retention. Most people use as a file-archival system and often they have many years of stored in PST archival folders. Many organizations don t place limits on , so it can be excruciating to pore over mountains of messages. But archiving systems do maintain a single point of record. Steiner recommends using a search-and-collection tool, which can look for documents or keywords in documents and bring those documents to a central collection point. His company also uses a third tool a review platform. This is where documents are imported so they can be reviewed by attorneys for relevancy. Today, search tools that use Boolean logic are most common. Attorneys are familiar with the construction of Boolean terms because common Forensics growing in e-discovery ONE AREA GROWING out of IT security is computer forensics, which is the application of computer investigation and analysis techniques to gather evidence suitable for presentation in a court of law. Computer forensics can be used in law enforcement and criminal investigations where a computer is being used to store evidence of a crime, for example, in cases that involve hackers or harassment. Forensics data represents a small percentage of data used for e-discovery. Forensics tools may also be needed when someone named in a lawsuit who was custodian of data has left the company and no one told the IT department. In that situation, it might be necessary to try to reimage that employee s laptop. The problem is [that these tools] usually require advanced training, and companies are becoming resistant to paying for large, transformative technologies every two years, said Greg Buckles, an independent consultant and CEO at Reason-eD LLC, a Houston-based practice with expertise in data collection and analysis. 8 THE WINDOWS MANAGER S GUIDE TO E-DISCOVERY

9 CHAPTER 1 E-DISCOVERY? legal research tools, such as Lexis- Nexis, use Boolean logic. The problem with Boolean logic is that people don t usually communicate in such a clean manner. They use nicknames and code words, so searching through unstructured data may bring up a lot of irrelevant information. Newer search tools that organize and analyze concepts are emerging from companies such as Visual Analytics Inc. and Attenex Corp. To force companies into spending money on systems they don t need, many vendors today use scare tactics, Buckles said, such as waving a $1.58 billion judgment against Morgan Stanley in 200 in front of corporate executives. Even though the judgment has been reversed on appeal, the case is far from over and remains a stark reminder of what can happen without an e-discovery plan. The big question is how IT shops show a level of preparedness to meet legal challenges. Ultimately, a company does not have to control everything nor can it. Experts say that IT shops must understand that the standard they are trying to achieve is not perfection but reasonable due diligence. Morgan Stanley pays hefty fine for failing to archive IN FEBRUARY 2006, Morgan Stanley agreed to pay a record $15 million fine to settle a Securities and Exchange Commission (SEC) probe into its failure to preserve , according to a 10-K filing with the SEC. Reports indicate this is the highest fine ever imposed by the SEC for such behavior. The case against Morgan Stanley hit the headlines in May 2005 when the firm couldn t guarantee it had turned over all related to its pending lawsuit, Coleman (Parent) Holdings Inc. v. Morgan Stanley & Co. Inc., and was then hit with a $1.58 billion judgment. In March 200, a Florida state appellate court reversed the $1.58 billion judgment against Morgan Stanley. The case reached the Florida Supreme Court in December 200, but the supreme court did not accept the case. Although the billion-dollar judgment against Morgan Stanley remains overturned for the time being, the hefty SEC fine points to a major problem: Most companies can t comply with a broad legal discovery order because they don t archive electronic content in such a way that it can be searched and retrieved in a timely manner. 9 THE WINDOWS MANAGER S GUIDE TO E-DISCOVERY

10 CHAPTER 1 E-DISCOVERY? ABOUT THE AUTHORS: Margie Semilof is senior news director for TechTarget.com s Windows Media Group and is responsible for news coverage of the Windows platform. A high-tech journalist for more than 20 years, Semilof has written about a variety of technical topics ranging from hardware and software to telecom and networking. Kathryn Hilton has worked as an industry analyst for Gartner Group and for several large storage companies. She is currently a senior analyst for policy at Contoural Inc., a provider of business and technology consulting services that focuses on litigation readiness, compliance, information and records management, and data storage strategy. The Windows Manager's Guide to e-discovery is part of the Windows Manager Guide series from SearchWinIT.com. Marilyn Cohodas Editorial Director mcohodas@techtarget.com Christine Casatelli Editor ccasatelli@techtarget.com Martha Moore Copy Editor mmoore@techtarget.com Linda Koury Art Director of Digital Content lkoury@techtarget.com Jonathan Brown Publisher jebrown@techtarget.com Gabrielle DeRussy Senior Director of Sales gdesgroseilliers@techtarget.com 10 THE WINDOWS MANAGER S GUIDE TO E-DISCOVERY

11 RESOURCES FROM OUR SPONSORS Learn more about Symantec Enterprise Vault Symantec Enterprise Vault 200 provides a software-based intelligent archiving platform that stores, manages and enables discovery of corporate data from systems, file server environments, instant messaging platforms and content management and collaboration systems. For a variety of white papers, case studies, testimonials and more, click here. Learn more about Sunbelt Exchange Archiver Sunbelt Exchange Archiver (SEA) delivers cost-effective enterprise-class archiving for organizations concerned with archiving for legal, retention and compliance reasons. SEA gives organizations a powerful lifecycle management system that offers tamper-proof, long-term storage of s with easy retrieval capabilities and full-text searching. To learn more about SEA click here. q A Guide to Understanding Messaging Archiving An Osterman Research Report This Osterman Research white paper discusses the several reasons to implement a messaging archiving system. q Archiving Compliance with Sunbelt Exchange Archiver Learn how to implement a cost-effective archiving solution that minimizes the burden on your Exchange server, and helps you avoid costly legal penalties. q Disaster Recovery with Sunbelt Exchange Archiver Learn about the important connection between archiving and recovery: Data retrieval. 11 THE WINDOWS MANAGER S GUIDE TO E-DISCOVERY

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