Management and E-Discovery

Transcription

1 Management and E-Discovery -- David Wood, RPost UK RPost does not provide legal advice. You should consult your own independent counsel for legal advice.

2 2 Best Practices for Clean & Compliant, Safe & Secure

3 3 Agreement of endorsments London insurers playing catch up - Not rocket science! London brokers estimate that 35% of all their endorsements already done this way without any addtional legal framework or IT requirements. e.g. overseas markets However, if this is an issue for a given territory/client then consider the following: > How can you prove the endorsement was sent? > How can you prove what has been sent? > How can you prove when you sent and received it? One solution is - Description: R-Post provides legal and verifiable evidence of the content and time any e- mail has been sent and received by anyone, anywhere in the world. THERE MAY BE OTHERS, YOU TELL US!

4 Challenge: No Proof of Content & Context sent is not always received With a few clicks, can be easily altered Archives show only what was sent not what was received or NOT Printed is not a verifiable record Changing records can be as simple as editing the message and saving just 2 mouse-clicks! Did you know that you often can easily: Change text in any received ? Change the from address? Change anything in the attachment? Move to any folder? Change the time sent? 4

5 Read Receipts Have Little Value They are simple text files that can be easily forged They tell nothing about content received The recipient can opt not to return the receipt Outlook Read Receipt and Settings 5

6 Can You Prove Actually Arrived? Business is not always delivered (spam filters, wrong addresses, gatekeepers, junk boxes, simple deletion) 3% of non-bulk, business-to-business Internet e- mail goes undelivered to its intended recipient.* I didn t receive your * Ferris Research estimates that around 3% of non-bulk, business-to-business Internet goes undelivered to its intended recipient. The two main reasons for non-delivery are legitimate messages wrongly identified as spam -- "false positives" -- and sent to mis-typed addresses and those that no longer exist. ("Business-to-business Internet " is mail sent from one corporate system to another via the Internet, not including mail to consumers, nor mail that remains inside an organization's private system. "Non-bulk" means that this statistic ignores legitimate bulk mail, such as opt-in direct marketing and newsletters.) 6

7 E-Commerce Consideration & the Law 7

8 8 A Worthy and Achievable Goal Authentication >>> admissibility >>> enforceability Consider needs for preparation of evidentiary in the future Under procedural law, the rules of evidence apply Ensuring contract/agreement records are admissible in court Does it contain the transaction meta-data? Does it prove what content was associated with it? Can the time of signature or notice be verified? Can it re-construct the electronic original? Self-authentication vs. system authentication Simplicity / ease of maintaining, searching, retrieving records Portability / durability / sustainability of the evidence Evidentiary value the weight of the evidence

9 9 Maintain the Upper Hand Having the upper hand or evidence that has greater weight is valuable in any dispute resolution situation in or out of court. Evidential weight is about reducing uncertainty surrounding the evidence A judicial officer or arbitrator will first examine the evidentiary value of what is submitted to determine its trustworthiness The party with the greater evidential weight will win in most cases, or at least mitigate their liability Registered messages hold far greater evidential weight than traditional mail, courier, fax, or Registered will provide the sender the upper hand in any legal discovery disputes and protection that will stand up to scrutiny in a dispute resolution Have evidence thrown out in 5 minutes.

10 10 Proof of Transaction What is Legal Proof Verifiable record of delivery of as defined by the law (mail server) Verifiable record of content (message body/attachments) delivered (tamper detectable) Verifiable record of uniform time sent and received (3 rd party time) verifiable in a manner that constitutes proof Self-authenticating Withstanding challenges around admission into evidence Capable of reconstructing an authentic electronic original

11 E-Signature / E-Records Cases Sims v. Stapleton Realty, Ltd., 2007 Wisc. App. LEXIS 741 (Aug. 23, 07) - an agreement originally in paper can be amended by a party using . Kloian v. Domino s Pizza, 733 N.W.2d 766 (Mich. App. 2006) - two parties can reach a legally binding agreement using ; if a law other than an electronic signature law requires extra steps for an electronic record or electronic signature to be effective (such as a certain placement of a signature or method of delivery), that other law must also be complied with. Bell v. Hollywood Ent. Corp., 2006 Ohio App. LEXIS 3950 (2006) - plaintiff found to have consented to arbitration process by electronically signing web-based job application. Verizon Communications, Inc. v. Pizzirani, 2006 U.S. Dist. LEXIS (E.D. Pa. 2006) defendant by clicking I ACKNOWLEDGE electronically agreed to non-compete as condition of accepting employee incentives delivered by . 11

12 REGISTERED = LEGAL PROOF 12

13 What is Registered 13

14 Recipient Knows that Sender Knows (optional) 14

15 15 Evidentiary Record for Sender Sender s Computer Optional Copy to Central Archive

16 16 Self-Authentication in Case Challenged In case of a dispute, Registered receipts can regenerate transmission data, delivery status as well as re-present the original e- mail WITHOUT storing the original on its network. Reconstruction of original & attachments

17 MANAGED OUTBOUND MESSAGING SERVICES LEGAL PROOF CORE E-Security E-Contracting Collaboration Admissible Records 17 End-to-end Encryption PDF-conversion Metadata wash E-signature / esignoff: Bind Agreement Postmark / Time Stamp SideNote Adds Context Manage Overload Reduce CC Risk Records classification Records authentication Transactional Archive

18 18 Managing Electronic Business Records

19 Transaction Record Frankel Case Receipt of Insurance Broker s Notice to Bind Coverage Denied Insurance broker sent to bind additional commercial property to existing policy. A subsequent claim was submitted to the insurance carrier, and the carrier denied having a record of the additional property on the policy. Fortunately, broker had a Registered Receipt proving the content of the sent to the carrier and precisely what time it was RECEIVED. Further, the Registered Receipt record was in a form that could be (a) easily retrieved, (b) verified as authentic, and (c) in a form that could re-construct a validated original. Saved $10,000 in deductible on a E&O liability insurance claim. 19

20 20 Don t Leave Record Retention to Chance 66% lack retention policy. 34% can t ID business-critical . Record Retention = Business & Legal Challenge regardless of industry, size, status as public or private entity. Source: , IM & Blog Survey, American Management Association & The epolicy Institute

21 21 Sending High-Value vs. Casual High Value = Retain in Verifiable Form Casual = Short Term Retention

22 Over Time, the Parade of Issues Enters Any Fortress of Technology 22 denial by recipient changing technology system upgrades mergers, acquisitions, divestitures new outsider threats creating new insider threats inadequate time to propagate changes across networks loss of metadata in retention systems

23 23 Retain Only Business Records E-discovery is a growing strain on companies. Electronic record management helps keep costs under control. Define & manage electronic business records. Take out the casual non business s! RPost s Registered helps distinguish business-critical from insignificant messages that should be discarded.

24 24 Best practices for management

25 25 Registered All-in-One Solution Best Practice Tool: RPost s Registered Service ACCOUNTABILITY: Verifiable evidence of transaction: Proof of delivery, content & time sent and received RPost service includes on-demand options at one extra click: EXTRA PRIVACY: Encrypt for extra privacy, end-to-end. DATA LEAK PREVENTION: Clean hidden metadata, convert-to-pdf. CLASSIFICATION: High-value or casual, by matter, code etc. RECORDS: Bind agreements with e-signature & time stamp. EVIDENCE: Retain verifiable original with transaction data.

26 26 Feature Summary Fully customizable pop-up

27 27 RPost - SideNote To Recipient Cc and Bcc SideNote Recipient

28 Who is RPost? Customers include U.S. Government Accountability Office (since 2003) Greenberg Traurig (since 2004): global law firm Macquarie Bank (since 2005): global investment bank Louisiana State Supreme Court (since 2006) NYSE Euronext (since 2007): global financial exchange U.N - World Intellectual Property Organization (since 2008) Distributors: Pitney Bowes, BT Infonet, AT&T, Orange (FranceTel) Integrated into: Google/Postini, Sendmail, OpenText, MX Logic Endorsed/sponsored: Major bars, Council Insurance Agents & Brokers Safeguard for e-discovery rules: Endorsed by Risk & Insurance Mngmt Society Awards: IBM Best Messaging & Collaboration Tool 2007 (top 3) eweek top 10 disrupters for storage technologies 2007 CityTech top legal technology vendor to watch 2007 Investors: Symantec (Norton Anti-virus) & other private Users Enabled: 10 million contracted to be enabled; ~1 million enabled 28

29 Management and its Relationship with E-Discovery -- David Wood, RPost UK 29 RPost does not provide legal advice. You should consult your own independent counsel for legal advice.