Making the Scene With SharePoint 2010 Enterprise Social Media Features

Social sharing - how is it different in the workplace?

I discovered an interesting video recently while helping a client demonstrate how users of a SharePoint document management system can share information about the documents they are managing. The video is by Michael Gannotti, a technology specialist at Microsoft, and it apparently shows how Microsoft uses SharePoint 2010’s social media features in-house. The video covers other SharePoint 2010 features as well, but I found 2 segments particularly relevant.

Social Media features in SharePoint (from timestamp 6 minutes 49 seconds to 15 minutes 50 seconds):

  • people search — users can find people who are experts on the subjects they’re researching;
  • publishing — via wikis, FAQS, and blogs;
  • user home pages — users can fill out their own profiles, add types of content, see their friend and group feeds;
  • viewing other users’ pages — users can find out more about co-workers and their work;
  • adding meta-information — tagging, liking, and adding notes or ratings to alert others about the relevance of content to oneself, to a project, or to a topic; and,
  • publishing (blogging) options — users can post to SharePoint either via a rich web-based text authoring environment or direct from a Word document.

Using One Note For Sharing (from timestamp 17 minutes 34 seconds to 18 minutes 34 seconds):

  • can create the equivalent of wikis and FAQs;
  • is web-editable;
  • may be better for printing; and
  • can also be used offline.

Here’s his video (hosted by Vimeo):

Other resources

Another useful resource concerning social media in SharePoint 2010 is this blog post by Microsoft Senior Technical Product Manager Dave Pae at TechEd earlier this month: http://community.bamboosolutions.com/blogs/sharepoint-2010/archive/2010/06/07/live-from-teched-overview-of-social-computing-in-sharepoint-2010.aspx. This also links to a post about social search which not only discusses the types of content (including meta-information) which can be searched, but also covers phonetic search capabilities: http://community.bamboosolutions.com/blogs/sharepoint-2010/archive/2010/06/07/live-from-teched-in-new-orleans-what-s-new-in-enterprise-search-in-sharepoint-2010.aspx.

Forensic archiving and search of web 2.0 sites

Bruce Wilson

As someone who has worked on a number of web application development projects over the years I understand the challenges of web content management and archiving more than most folks. Thus at LegalTech NY earlier this year I was particularly impressed by a vendor in the web archiving space called Hanzo Archives.

Many of us are familiar with a service called the Internet Archive (more commonly known as “The WayBack Machine”) which offers snapshots of previous versions of thousands of web sites, even small ones. It’s fun, and sometimes useful for information gathering, but hardly rises to the level of detail most of us would hope for in a litigation or compliance scenario.

What Hanzo does is take the idea of archiving web sites to a forensic level by comprehensively recording the content of a web site, including Flash and other non-html content, at frequent intervals. Once recorded, site archives are fully searchable and web content can be “replayed” exactly as it was published on a particular date, all in a manner that can be authenticated in court.

This fall I had the privilege of speaking with Mark Middleton, founder and CEO of Hanzo Archives, to satisfy my curiosity about what his product is capable of and who is using it.

Bruce: Mark, thank you for arranging to speak with me. I think I have a general understanding of what your archives do, but let me start off by asking you for some use cases that illustrate who needs your product and what they need it for.

Mark: Actually we have two products now. We are defining a new product, WebHold, which is a streamlined and simplified derivative of our existing ‘Enterprise’ service. We have advanced so far in the past couple of months that we are now able to collect the most insanely complicated web sites, where by comparison archiving something like financial services sites is simple.

To answer your question, our use cases would include litigation support and brand heritage. The common thread here is that, increasingly, companies are communicating and advertising to their audiences using web technologies. Whereas a company historically has been able to capture their communication in print or broadcast relatively easily, they are unable to do this for their web content and so for the first time in decades they have major communication channels they cannot capture for the future. One of the world’s most successful brands in the Food and Beverage industry has selected Hanzo for this purpose.

Here’s your legal use case. We have a prospect whose target audience for communication and advertising is young people. Our prospect communicates with them in sophisticated ways on the web – videos, games, surveys, and animation. They offer very sophisticated messaging about their products, put it on many websites, in order to communicate their sophisticated brand to their customers. How does one capture that?

At the same time, in their words, they anticipate regular litigation about their products. They’ve got every other avenue covered – print, TV ads, materials provided on premises, but they cannot do web – they cannot rely on the “WayBack Machine” – none of the rich media is recorded there. They can do backups – but how do you recreate a web site from a backup, how do you prove it was the one that was live on a particular date? We can capture their content on a regular basis, save into secure containers, can prove the content in the containers is authentic and original, and can be recreated in our archive system to look exactly as is did when it was live. So companies can enjoy the same level of confidence that they have in their other channels.

Bruce: OK, again I think I understand, but to help explain it to others can you give me some concrete examples?

Mark: Here are a couple of examples from prospects and clients.

One is an investment house with a variety of products. Their website contains a mixture of historic performance data and propositions to entice the investor to buy into their investment product. Traditionally these kinds of offers were made in print prospectus documents, regulators would require this to be filed with the regulator. Specific to the web, the companies are now making this offer in a unique way. People can select an investment product, and pull up a calculator showing what returns you might be able to see. They can see graphs of performance, plus recent opinions of analysts, all on the same site. But because it is a dynamically generated web content, as it is presented to the user, there is no capture of what someone sees anywhere. And so what has happened historically is that people take companies to court saying that the company is “not performing as to expectations as per your offer.” So now, because of this possibility, companies need to capture the web site experience so that they can prove it was reasonable and not misleading.

We’ve also received a lot of interest from pharmaceutical companies. Because of claims about their products and performance – drugs often don’t perform for an individual the way they perform statistically – these companies face potential class actions based on perceived underperformance. Advertisements in magazines and TV can all be captured, but web sites are much more difficult.

Bruce: I’ve worked on sites where the content keeps changing and have some idea of how messy it can be to try to figure out how it was at a earlier date. But how is Hanzo’s solution different from the current state of the art?

Mark: We have spoken with a U.S. pharmaceutical company who had to resurrect product information from their webistes, even though it had been brought down years before. Maybe the judge gave them two months to resurrect it. They had to locate and re-hire former staff, building a team of 30 people to handle the project. Once they found the hard drives that were needed that were stored in a cupboard in a basement somewhere, they then had to rebuild from code on up. That is an extreme case of course. But generally, when relying on backups or information stored in a content management system they have to reconstruct physical server infrastructure, and server software, including licensing, before they can even start with the content. But with Hanzo they don’t need any of that, they archive it independently and it can be reviewed immediately, on demand.

Bruce: OK, so by my way of thinking this is the same issue as disaster recovery—to be efficient you want to have a hot backup, not simply the opportunity to recreate your site from bare metal.

Also on our agenda for this conversation, you mentioned you have a new product? This an SaaS product, did I understand this correctly?

Mark: Yes, we’ve been working on a new product – it’s called WebHold. We still only do web archiving. First, a little background. Most institutions that archive websites rely on software called web crawlers. We’ve used several web crawlers from the open source community and have also developed our own. In the last few years we have done a lot of research and had opportunity to archive some very complex sites, and have developed tech that exceeds existing crawlers. But we still have kept to standard archive files to be consistent with standards, even though now putting multi-media, etc. in them. So what we’ve managed to do is this. With our technology we can capture sites very easily. Particularly for customers who have compliance requirements but are not cash rich, we can offer something effective and great value for money. We have come up with a product that will archive websites on a daily basis on a level of quality that will meet compliance from an archival level. This is something we can offer to FINRA [US]or FSA [UK] regulated companies with a high degree of reliability. It’s fully SaaS. Customers submit their sites, which are crawled, then the results are made available to the customer, and we archive their sites every day.

Bruce: What about archiving inside a firewall?

Mark: The regulatory requirements are to archive public facing websites that present advertising and offers that go to the consumer. For Enterprises it is also possible to archive intranets inside the firewall using Hanzo’s crawlers and access systems. We can do it as a SaaS using either a VPN or as an appliance. Offering our products as an appliance was the result of opportunities we had to capture collaborative web platforms on corporate and government intranets.

Bruce: In an earlier blog entry about disaster recovery I learned that one underpublicized form of disaster is when a third party SaaS business goes under, thus cutting a company off from its data. Apparently this happens in niche verticals every so often. Can Hanzo be rigged up to capture a company’s data on an SaaS, say Salesforce.com? Not that I’m predicting that they’re going away any time soon….

Mark: Hanzo can archive some simple web based apps already. It’s a departure from standard architecture of crawlers. But we can do that collaboratively with a client.

Bruce: How about pulling data out of a third party SaaS for the purposes of eDiscovery?

Mark: Hypothetically speaking, if it was for some reason undesirable or not possible for a third party SaaS provider to produce the data themselves Hanzo could be used to get data for eDiscovery from a SaaS system.

Reduce e-discovery cost and disruption with Early Case Assessment

In previous posts (What is Discovery?, Evolution of eDiscovery Analytics, Tape Indexing Breathes Life Into Tape Storage) I’ve talked about early case assessment or “ECA.” ECA happens when a company looks at the information that might be used as evidence in a legal dispute “early,” which is to say, within days of when it appears that there may be a dispute. This tactic may sound like common sense, but it actually runs counter to the tendency of both lawyers and business people to put things off. Traditionally, many lawyers have focused on getting their court papers together first, then doing a detailed investigation of the facts of a case only when they are required to do so by the court. This delay in getting to the bulk of the documents that might be involved hasn’t exactly met with resistance from business people who generally prefer doing the jobs they were hired to do rather than getting sidetracked by a lawsuit.

Photo credit: RBerteig's photostream

Photo credit: RBerteig's photostream

ECA has one huge advantage: getting key facts straight early may enable legal counsel to either 1, negotiate a settlement agreement–or 2, ask the court to dismiss a case because no evidence exists to support the lawsuit.

From a business standpoint earlier is usually better when it comes to ending lawsuits because it means lower costs and fewer distractions for the business people involved.

We’re talking tens of thousands of dollars for even the least expensive lawsuits, up to many millions of dollars for bigger ones. And besides attorneys fees (typically hundreds of dollars an hour per attorney, sometimes with multiple attorneys billing for months at a time) and a wide variety of expenses, lawsuits suck time away from business people who would otherwise be productively generating value for their companies. And they are distracting, too – people get emotionally involved in conflicts, even more than they get sucked into sports or reality TV shows, and start thinking about that instead of how to build a better widget or motivate their teams.

When I was a young associate working for a big San Francisco firm I had the privilege of receiving an informational interview from someone who at the time was one of the senior in-house counsel at a giant multi-national engineering firm. He told me that his ideal outside counsel was someone who could settle a case just weeks after it reached his desk, because cutting to the chase, settling a dispute for what it is worth in business terms, and eliminating the attorneys fees and distraction were what mattered to him.

Early case assessment ideally is like getting to checkmate at the very beginning of the game. Ideally you find out: we win or we lose. Then you settle. Attorneys do that too. A little known fact among non-attorneys (contrary to the TV shows) is that very few lawsuits get as far as a trial. Most settle before trial. You show the other side why you are going to win, or you say “hey, we’re not going to admit anything, but here’s a big check so that we can both move on.” The real question is, how soon can we settle? And the answer is usually “when both sides think they have all of the facts.”

So ECA saves money to the extent that it can authoritatively establish facts – including not only “smoking guns” but the presence or absence of evidence and the quality of that evidence – which enables early, appropriate settlements. When ECA works properly the side producing documents can say with authority: these are the facts; let’s settle on this basis.

So what can a company do to improve its ability to do ECA? Use technoloy, of course. The good news is that these days most of what must be reviewed is electronically stored information such as emails, spreadsheets, word documents, and databases, which lends itself to automated review. And although there is a substantial upfront cost to automate the process, once in place automated document handling is faster and less expensive and it can be more accurate than manual review.

A company that is serious about ECA will put in place two key technology components.

The first piece of technology is search, or what is sometimes called “document discovery” technology, which systematically checks or “crawls” the company’s computer systems for stored information, and categorizes it, so that searches can be run to find all relevant documents.

This identification and categorization process is also useful to meet a company’s duty to preserve information that might be relevant to the lawsuit once the possibility of a lawsuit is known. A court may rule against a company in a lawsuit solely because the company failed to quickly find and protect key information before it was altered or deleted in the ordinary course of buisness.

The second piece of technology is conceptual search or clustering which enables vast amounts of documents to be quickly analyzed with a minimum of costly human effort. It’s not “early” case assessment if hundreds or thousands of attorney hours must be put in before meaningful conclusions can be drawn about the strength of a lawsuit and the ability to settle or file for dismissal.

Because ECM can save a great deal of time, money, and distraction, organizations expecting significant e-discovery and/or compliance obligations should prioritize search and clustering technologies within their IT roadmaps.

IT crapshoot: cost-cutting is costly in disaster recovery, archiving for e-discovery

Disaster recovery and archiving are key zones of interaction for IT and Legal Departments. When a lawsuit is filed and an e-discovery production request is received, a company must examine all of its electronically stored information to find documents that are relevant to that lawsuit. Court battles may arise regarding the comprehensiveness of the examination, the need to lock down potentially important documents and metadata, and the cost of identifying, collecting, preserving, and reviewing documents — all of which are related to the way in which data is stored.

Photo credit: Josie Hill

Photo credit: Josie Hill

With this in mind, I recently sought out Jishnu Mitra, President of Stratogent, a specialized application hosting and disaster recovery services provider, to obtain his perspective on disaster recovery best practices and the relationship between disaster recovery and e-discovery. Key points he made include:

  • effective disaster recovery sites are “hot” sites that can be used for secondary purposes rather than remaining idle;
  • “cold” sites are unlikely to get the job done and are not cheap;
  • efforts to keep IT budgets down by delaying or limiting disaster recovery, or by limiting archiving, can backfire;
  • budget-conscious IT departments are more likely to use archiving features built-in to their software of choice;
  • many IT and Legal personnel have a habit of being disrespectful towards one another and doing a poor job of communicating with one another;
  • more crossover Legal-IT people are needed.

Bruce: Can you provide a little background about Stratogent’s domain expertise?

Jishnu: We offer end-to-end application hosting services, including establishing the hosting requirements and architecture, hardware and software implementation, and proactive day-to-day application management including responding to any issues that arise. Most of the time we are tasked with building a full data center, not the building itself, of course, but a complete software and hardware hosting framework. We aren’t providers of any specific business application (like salesforce.com does). We design, deploy and operate all the layers on which modern business applications are hosted including the application’s framework e.g. .NET, Java or SAP Basis.

Our customers include multi-office companies, who require applications shared between offices, and web-based application SaaS (“software as a service”) companies. The scope is typically quite complex – we don’t build or manage general web sites or blogs — that’s a commodity market and too crowded. We build and manage custom application infrastructures for enterprises or for complex applications that require a range of IT skills to manage. Our customers hire us because they don’t want to budget to hire all of the people they would need to do this internally, or when they are deploying a new application that is beyond the current reach of their IT team. For example, if a company wants to start using a new-to-them ERP [“Enterprise Resource Planning”] application like SAP or (say) a Microsoft based enterprise landscape that needs to scale, we can multiplex our internal pool of talent to give their application 24-7 attention far cheaper than the company can hire and retain the specialized employees they need to do it themselves.

Bruce: So you supply the specialized competencies needed to build and operate complex application environments so that your customers can focus on their core competencies? Then their core competencies don’t need to include what you do in order for them to succeed.

Jishnu: Yes. They know what they want, they conceptualize what they want, but not the hardware they need and the infrastructure software. We can go in from the very beginning saying, “Here’s how you set up a highly available, clustered server farm for your social networking app,” and so on and so forth. We know how to customize it and set it up. They also don’t have our expertise in negotiating with hardware vendors, or in capacity planning, etc. Plus there’s the build phase, loading OSes, etc. We essentially give them over the course of our engagement the entire hosting framework on which the app runs and then take care of it for the long run.

Once we get their hosting framework to a steady state, they get to run with it for two, five or longer number of years with no or limited failure. So their role is conceptualizing on day 1 and then we become a partner organization worrying about how to realize that dream, handling inevitable IT break-fix issues and managing changes over the entire life span of that system. Disaster recovery usually becomes part of that framework at some point.

Bruce: Can you give me some broad idea of the scope of disaster recovery work that you do?

Jishnu: Disaster recovery is not a separate arm of our business. It’s very integral to the hosting services we provide. We build disaster recovery sites at different levels of complexity. It can go from a small customer up to a really large customer. And over time Stratogent gets into innovative approaches to deal with disaster recovery. The philosophy of Stratogent is that we’re not trying to sell a boxed solution to all the customers. It’s more of a custom solution, not a mass market product. We say we will architect and host your solution – and as architect we always add very specific elements for our customer, not just one solution for everyone.

The basic approach, even for small customers, is to choose a convenient and correct location for the disaster recovery site and use a replication strategy based on whatever they can afford or have tolerance to accept. As much as possible a disaster recovery site should be up and running and ready to go at a flip of the switch. They can use the excess capacity at their disaster recovery site at quarter end to run financial reports or for other business purposes, plus it can be used for application QA and staging systems. They can be smart about it, and keep it on, so that they can have confidence in it.

Of course a disaster recovery solution like this can’t be built in just a month or two – to do it right requires creativity and diligence. In one recent instance when asked to do it ”right now”, we had to go with a large vendor’s standard disaster recovery solution for our customer. Everyone knows that this does not get us anything beyond the checkmark for DR, so the plan is to go to a Stratogent solution over time, build a hot alternate site on the East coast, and sunset the large vendor’s standard disaster recovery arrangement.

Bruce: Given the importance of disaster recovery for a number of reasons, how seriously are companies taking it?

Jishnu: Everybody needs it, but it suffers from “high priority, low criticality”, and the problem rolls from budget year to budget year. Some unpleasant trigger like an outage, or an impending audit instigates furious activity in this direction, but then it goes on to the back burner again. In the recent instance, although disaster recovery was scheduled for a later phase for technical reasons, for SOX compliance the auditor demanded a disaster recovery solution by year end or our customer would fail their audit. So we went out and obtained a large vendor’s standard disaster recovery solution, which met the auditors’ requirements but isn’t comparable to a “hot” disaster recovery site.

The way disaster recovery solutions from some of the large vendors work is this: they have huge data centers where their customers can use equipment should a disaster happen. Customers pay a monthly fee for this privilege. When a disaster strikes, customers ship their backup tapes out there, fly their people out there, and start building a disaster recovery system from scratch. And by the way, if you have trouble here’s the menu for emergency support services for which they will charge you more. And in 95 out of 100 cases it just doesn’t work, but is a monumental failure when you need it most. These are “cold” sites that have to be built from the ground up. It takes maybe 72 hours to get them up, rather to be asserted as “up”. Then, as someone like yourself with application development experience knows, it takes weeks to debug and get everything working correctly. And when you’re not actually using them, standard disaster recovery services are charging you an incredibly high amount of money for nothing except the option of bringing your people and tapes to their center, and then good luck.

Bruce: You mentioned running quarterly financials, QA, and staging as valuable uses for the excess capacity of “hot” disaster recovery sites. Could this excess capacity also be used for running e-discovery processes when the company is responding to a document production request?

Jishnu: Possibly, but I haven’t seen it done yet in a comprehensive manner. The problem is you still need to have the storage capacity for e-discovery somewhere. The e-discovery stuff is a significant chunk of storage, maybe tier 2 or 3, which demands different storage anyway, so it makes sense to keep the e-discovery data in the primary data center because its easy and faster to copy, etc. That said, it is very useful to employ the capacity available in the secondary site for e-discovery support activities like restoring data to an alternate instance of your application and for running large queries without affecting the live production systems.

Bruce: Do you deploy disaster recovery solutions that protect desktop drive, laptop drive, or shared drive data?

Jishnu: As I have said, our disaster recovery solutions are part of whatever application frameworks we are hosting. We as a company don’t get into the desktop environment, the local LANs that the companies have. We leave that to local teams or whatever partner does classic managed services. We do data centers and hosted frameworks. We don’t have the expertise or organizational structure to have people traveling to local sites, answering desktop-related user queries, etc. But any time it leaves our customer’s office and goes to the internet, from the edge of the office on out it’s ours.

Bruce: But when archiving is part of the customer’s platform hosted by you, it gets incorporated in your disaster recovery solution?

Jishnu: Yes.

Bruce: Is Stratogent involved when your customers must respond to e-discovery and regulatory compliance information retrieval requests?

Jishnu: Yes. For example, we recently went through and did what needed be done when a particular customer asked for all the documents in response to a lawsuit. We brought in a consultant for that specific archiving system as well. Our administrators collaborated with the consultant and 2 people from the customer’s IT department. It took a couple of weeks to provide all the documents they asked for.

Bruce: Was the system designed from the outset with minimizing e-discovery costs in mind?

Jishnu: Unfortunately no. In this case archiving for e-discovery was an afterthought and was grafted on to the application later and a push-button experience wasn’t in the criteria when designing this particular system. But it woke us up. We realized this could get worse.

Bruce: So how do you do it differently now that you’ve had this experience?

Jishnu: Here we recommended to our customer that we upgrade to the newest version of the archiving solution and begin using untapped features that allow for a more push-button approach. Keep in mind that e-discovery products weren’t as popular or sophisticated as you see them now.

Bruce: Aren’t there third-party archiving solutions also?

Jishnu: There are several third-party products and you see the regular enterprise software vendors coming out with add-ons. We’re especially looking forward to the next version of Exchange from Microsoft, where for us the salient feature is archiving and retention. Only because email is the number one retrieval request. On most existing setups getting the information for a lawsuit or another purpose takes us through an antiquated process of restoring mail boxes from tape and loads of manual labor. It’s pretty painful, it takes an inordinate amount of time to find specific emails, its not online, it takes days. For this reason we’re looking forward to Exchange 2010 which has features built INTO the product itself. Yes, some other vendors have add-on products that do this also.

Bruce: And I assume you’re familiar with Mimosa, in the case of Exchange?

Jishnu: – Like Mimosa, yes. But when it’s built-in the customer is more likely to use it. By default customers don’t buy add-ons for budgetary reasons. It’s so much easier if the central product has what we need, and that is in fact happening a lot these days. I won’t be surprised if products in general evolve so that compliance and regulatory features get considered integral parts of the software and not someone else’s problem.

Bruce: Do you have other examples of document retrieval from backups or archives?

Jishnu: Actually there are three scenarios where we do document retrieval. Scenario one, which we discussed, is e-discovery. Scenario 2 is when we have seen retrieval requests in acquisitions, mergers and acquisitions, and we had to pretty much get information from all sorts of systems, a huge pain.

Scenario 3 is SaaS driven. For many of our customers, the bulk of their systems are either on-premises or hosted by Stratogent, but some of our customers use SalesForce.com or one of many, many small or industry specific SaaS vertical solutions. In one recent case, one of these niche vertical SaaS vendors, because of some of the issues in that industry, was about to go out of business. We had to go into emergency mode and create an on-premise mirror, actually more like a graveyard for the data, to keep it for the future, to enable us to fetch the data from that service. We figured out a solution for how to get all the customers’ data and replicate and keep it in our data center and continuously keep it up to date. Fortunately the vendors were cooperative and allowed access through their back door to allow us to achieve this. I call this “the SaaS fallback” scenario. SaaS is a great way to quickly get started on a new application, but BOY, if anything happens, or if you decide you aren’t happy, it becomes a data migration nightmare and worse than an on-premises solution because you have no idea how it’s being kept and have to figure out how to retrieve it through an API or some other means.

Bruce: In e-discovery and other legal-driven document recovery scenarios, how important is collaboration between IT and Legal personnel, or should I say, how significant a problem is the lack of this collaboration?

Jishnu: I’ve seen the divide between IT and legal quite often. Calling it a divide is actually being polite; at worst both parties seem to think the others are clueless or morons. It’s a huge, huge gap. And I have also seen it playing out not just in traditional IT outfits, but also product based companies when I was principal architect at Borland. When attorneys came to talk to engineering about IP issues, open source contracts or even patent issues, there was no realization among the techies that it was important. In fact legal issues were labeled “blockers” and the entire legal department was “the business prevention department”. And there is exactly the opposite feeling in the other camp with how engineering leaders don’t “get it” and how talking to anybody in development or IT was like talking to a wall. The psychological and cultural issues between IT and legal have been there for a while. In some of the companies that have surmounted this issue, the key seems to be having a bridge person or team acting as an interpreter to communicate and keep both sides sane. Some technical folks I know have moved on to play a distinctly legal role in their organizations and they play a pivotal role in closing the gap between legal and IT.

Tape Indexing Breathes Life Into Tape Storage

Here’s an observation that can be tagged “mixed blessings”: foot dragging on the part of techno-lagging attorneys has shielded (and in some cases continues to shield) their clients from the full potential weight of eDiscovery requests. For example, even after years of discussion, the legal profession didn’t formally recognize the obligation to produce metadata in response to discovery requests before the Federal Rules of Civil Procedure amendments adopted at the end of 2006. More outrageously, some attorneys are still gaming to avoid eDiscovery all together, as Magistrate Judge John M. Facciola (U.S. District Court, Washington D.C.) pointed out in his keynote presentation at LegalTech earlier this year.

Only a few years ago certain courts had ruled that data stored on tape could be considered “inaccessible” because it was so expensive to review it, and thus data stored on tape did not always need to be reviewed when answering an eDiscovery request (for example, the Zublake decisions). More recently, however, the legal profession is becoming aware of advances which make tapes faster and cheaper to review, like technology for rapid disaster recovery.

What IT person doesn't look forward to working with historic data?
What IT person doesn't look forward to working with historical data?

There are still a number of fine distinctions being made in this area of law, and the specific tape handling practices of different companies can render their tapes more or less “accessible.” (Ironically, companies that archive backup tapes indefinitely, which sounds like a safe practice, may be exposing themselves to a greater burden in eDiscovery, not to mention the extra cost of storing outdated tapes.) But broadly speaking, few companies storing information on tape can categorically rely on “inaccessibility” to rule out the risk of being required to review their tapes during eDiscovery any more. For more about the law concerning inaccessibility, including California’s burden-shifting rules, I recommend this article by Winston & Strawn attorneys David M. Hickey and Veronica Harris.

Fortunately, two prongs of innovation are shrinking the issues surrounding eDiscovery and tape. The first prong, which happens to be the subject of this blog post, comes in the form of new tape indexing and document retrieval technology. The second solution, which involves substituting hard drives in place of tape, will be the subject of a future post.

To learn more about the current state of eDiscovery technology in the realm of tape, I recently spoke with Jim McGann, Vice President of Marketing at Index Engines. Index Engines’ solution comes in the form of an appliance (a hardware box pre-loaded with their software) that scans a broad variety of tapes and catalogs the content. The appliance indexes tape data and de-duplicates documents within the index using the hash values of the documents. At this point users can cull (selectively retrieve) potentially responsive documents from a batch of ingested tapes without first performing an expensive, resource-intensive full restoration of each tape. And because Index Engines can ingest all of the common tape storage formats, users don’t need to run or even possess the original software used to write to the tapes.

From a longer-term strategic perspective, Index Engines’ users can approach their tape stores incrementally, taking a first pass through their tapes in response to a particular discovery request, then add to their global tape index as new discovery requests are fielded. They can embark upon a proactive tape indexing campaign that will give them enhanced early case assessment capabilities. Users may also opt to extract important data that is not immediately needed but resides on old or degraded tape.

For companies with thousands or tens of thousands of tapes, indexing can allow significant numbers of tapes to be discarded since many individual tapes typically contain data which is almost entirely repeated on other tapes or has lasted past the end of its retention period – not to mention the corrupted or blank tapes which are being carefully stored nonetheless.

All of this makes Index Engines an extremely affordable (at least by Enterprise standards) alternative to restoring and reviewing tapes individually.

I asked Jim McGann whether Index Engines resembled dentists who teach patients good dental hygiene and, if successful, will wind up putting themselves out of a job. If Index Engines’ appliances succeed in indexing, de-duplicating, and extracting all of the stored tape in existence, while ever more affordable hard drive storage replaces tape storage, won’t the company be out of a job?

Jim pointed out that, for certain organizations which currently rely on tape storage, substituting hard drives for tape drives is simply not a viable option. Costs associated with re-routing system data and human work flows, as well as the risk of downtime during a transition, mean that many organizations won’t switch even after disk drives become less expensive. And Index Engines takes away much of the cost incentive for switching that would otherwise be driven by eDiscovery and compliance requirements. Finally, Jim says, Index Engines can be used to index almost all of the information customers have, not just tape data, which enables users to find non-tape information that must be reviewed for eDiscovery.

The other approach to the problem of tape storage (to be explored in more detail in a future blog post) involves near-line hard drive solutions. Leading hard drive storage vendors such as Isilon Systems claim that their “near line” solution is priced nearly as low as tape while offering higher performance and reliability. But advocates of tape, including the Boston-area based Clipper Group (in a whitepaper offered on tape drive vendor SpectraLogic’s web site) claim that the total costs of ownership of disk storage, taking into account factors such as floor space requirements and electricity, is still many, many times higher than tape.

So, as tapes look like they will be around for some time to come, companies with tapes will continue to need technologies like Index Engines’. And most will not be able to avoid discovery of tapes for much longer, if they are even still able to do so, thanks in part to the availability of these technologies.

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