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E-Discovery and Data Retention Expand / Collapse
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Posted Wednesday, November 19, 2008 9:09 PM


Mr or Mrs. 500

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Comments posted to this topic are about the item E-Discovery and Data Retention


Best wishes,

Phil Factor
Simple Talk
Post #605557
Posted Thursday, November 20, 2008 12:34 AM
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All companies should have a clear data retention policy that is enfoced across the board. If the policy is that certain data is kept 5 years then destroyed, a court can't complain if the data isn't available, assuming the retention period is in line with any statutes. Once a company is notified of legal proceedings, then the retention period changes for therelevant data. Staff need to be trained to delete emails that are no longer required, and to not retain data "because it might be useful". A documented, enforced retention policy can help minimize exposre during litigation.
Post #605615
Posted Thursday, November 20, 2008 6:54 AM


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This sounds like one of your horror stories Phil...
Post #605773
Posted Thursday, November 20, 2008 8:17 AM


Mr or Mrs. 500

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Andy,

Eeek! Yes, but I'll say at the start that I won on every occasion.

It was an extremely painful process, especially when they demand all your data without being specific, and it left me with an enduring distrust of lawyers, and a sense of relief that I instinctively hoard data and documents obsessively.

What I didn't say in the editorial was that the strategy that put them all on the run was to bombard them with great quantities of materials, and pertinent questions which required answers and clarification. I realize that this requires a few hours poring over law books, but the results are very satisfying. The other side's costs mount alarmingly and it makes their file look horrid and complicated. Like feral carnivores, these guys go for the quick kill. if anything looks difficult, then they rush off after easier prey.

The advantage of this strategy is that you end up looking keen and helpful, which goes down very well in court.



Best wishes,

Phil Factor
Simple Talk
Post #605852
Posted Thursday, November 20, 2008 8:26 AM


Mr or Mrs. 500

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Ross,
Yes, you make some good points here. A defined and explicit document retention Policy is the DBA's best protection. The DBA is, I believe, pretty safe if his disposal of data is routinely in line with the corporate document Retention policy, but once there is the first notice of any litigation, this should be overruled by the company's legal team. This is because the courts may take a dim view of any disposal of relevant potential 'evidence' after litigation commences.

I haven't experienced a logically consistent policy on the retention of data yet. I worked for a while in Telecommunications where there were two statutory retention periods for the records of telephone calls. These had to be disposed of after six months, but also had to be retained for five years.



Best wishes,

Phil Factor
Simple Talk
Post #605860
Posted Thursday, November 20, 2008 9:07 AM


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I imagine if a company has to comply to SOX, there has been modifications to data retention policies (at a significant cost)
But I do not ever want to be in the situation of dealing with lawyers for the E-Discovery process

http://virtualization.sys-con.com/node/48061
http://www.frontbridge.com/pdf/collateral/WP_Osterman_FB_Sarbanes_Oxley.pdf

McAfee, Inc. experienced an additional $11.1 million in overhead expenses during 2004 to comply with Sarbanes-Oxley requirements, spending more than $3,700 per employee for this purpose.


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Post #605893
Posted Thursday, November 20, 2008 11:06 AM


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Ross McMicken (11/20/2008)
Staff need to be trained to delete emails that are no longer required...


I believe this won't help you out in all cases. Once an email leaves the plant it is likely cached in some intermediary server farm on the web, and really IT-savvy professionals can track it down.


A side note: this topic reminds me of when I worked for a Foundation attached to a California State University in the '90s. At the time, many documents (like timecards) were only in paper form, and had to be stored according to the retention schedule in a storage unit on campus. The Executive Director actually smiled when she learned that rain and rats had gotten into the unit and destroyed most of the paperwork.
Post #606003
Posted Thursday, November 20, 2008 11:57 AM
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Phil Factor (11/20/2008)
What I didn't say in the editorial was that the strategy that put them all on the run was to bombard them with great quantities of materials, and pertinent questions which required answers and clarification. I realize that this requires a few hours poring over law books, but the results are very satisfying. The other side's costs mount alarmingly and it makes their file look horrid and complicated. Like feral carnivores, these guys go for the quick kill. if anything looks difficult, then they rush off after easier prey.

The advantage of this strategy is that you end up looking keen and helpful, which goes down very well in court.


Not adding much here to your comment Phil, but I thought I lend a practical metaphor to illustrate what you have said.

This type of reaction is actually not a reaction, it is a pre-meditated plan. It has a name. It is called, "Giving the dog the fist." This refers to the situation of when a dog is intent on biting you, and you are out of other options, and you take action with understanding that no matter what you do you *will* get bit, you plan to give the dog the whole fist, and drive it home. Nothing scares a dog so badly as to have someone forcibly get down it's throat. It cannot breath, it cannot swallow, it cannot do much more damage. It freaks out and just wants to get the tail out of dodge. Taking this action requires courage and effort. Sitting on your hands will get your metaphorical jugular ripped out.

However, it doesn't metaphorically stop there, as you (Phil) have stated. While the dog is thoughtfully contemplating the life-ending fist in the throat, your other hand and other parts are working too, tearing into essentials, like eyes, knees landing ribs on the ground, etc. In your example, you gave the first blow (or fist) with, "bombard them with great quantities of materials". The second "hand" is just as important, if not more critical, because there has to be pain or the thing may come back at you again. Phil only grazed the surface of this with, "and pertinent questions which required answers and clarification". There must be pain, pain that registers in key ways, not just a slaps, nor an attempt to go after everything... slaps are not registered, and going after everything triggers fight instead of flight. Herein is where you said, "I realize that this requires a few hours poring over law books, but the results are very satisfying."

It is also highly effective on high level brass within a company that don't have a clue but keep trying to pin a bad deal on you, or your team. Go with it, TO THE FULLEST MEASURE. Opposition back-pedaling begins to happen quickly... unless a tremendous amount of money is at stake, i.e. a lion instead of a dog, in that case, you'd better be ready to dance, or move on.

If you cannot tell whether the issue is a lion or a dog, then go with the presumption that it is a dog... lions are extremely rare by comparison, and scarce few of those are after you personally, and it would be extremely hard for anyone to accuse you of trying to withhold or taint the information.
Post #606026
Posted Thursday, November 20, 2008 12:20 PM
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How about telling them the guy who was keeping the records of the backup tapes left years ago, was never replaced, and you don’t have any idea how to find data for any particular date. My experience is that this is true in many organizations, so it’s a credible answer.

Then offer to send them the 30,000 tapes that you have in off-site storage so they can look through them themselves. Make sure all the tapes are in obsolete physical formats with no existing working tape drives.

That should keep they busy for a while. :)



Post #606041
Posted Thursday, November 20, 2008 1:07 PM
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Michael Valentine Jones (11/20/2008)
How about telling them the guy who was keeping the records of the backup tapes left years ago, was never replaced, and you don’t have any idea how to find data for any particular date. My experience is that this is true in many organizations, so it’s a credible answer.

Then offer to send them the 30,000 tapes that you have in off-site storage so they can look through them themselves. Make sure all the tapes are in obsolete physical formats with no existing working tape drives.

That should keep they busy for a while. :)



I get the tongue-in-cheek humor here. However, it can't just be a credible answer. If that is the truth, then maybe, but only the truth works. If they can prove or get cause for suspicion of malfeasance stuck on you, you're in a heap of stress. And if you offer 30,000 tapes, they'd most certainly request them, because the contest is about who can make who dance. Real and complete guilt is just an extra bonus, but doesn't necessarily control the contest for either side.

"Yes, your Honor, we did breach the contract, but it was due to the plaintiff leaking X and Y information on the following dates, as represented in the following exhibits of data."
Post #606072
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