November 04, 2009
Bring eDiscovery In-house While Avoiding Pitfalls
InsideCounsel offers some tips for those interested in bringing eDiscovery in-house while avoiding pitfalls, including some comments from yours truly. Check out "Inside Job" in InsideCounsel's November issue, published in the monthly Technology section.
It's truly a challenging time for companies, but it's doable with the appropriate vision and approach. Many GC's and AGC's are under significant pressure to reduce their litigation and eDiscovery spend. Along with other approaches, more and more this usually includes looking inward to insource and automate repeatable and defensible processes as well as gaining greater control over their information management. Increases in efficiency and effectiveness in identifying, preserving, and culling down the data in-house in earlier stages should translate to lower review and hosting costs, and hopefully shorter review cycles related to the decrease in volume.
However, it's not just about bringing in technological solutions. I see technology as enabling processes and improving efficiency when done right. But before that can happen, companies need to discern the impact that various policy and technical choices will have on their ability to manage, identify, and cost-effectively work with their corporate data in eDiscovery, investigative, and compliance contexts. There's also the question of scale, as many small to mid-sized companies may not have either the volume or types of litigation or perhaps the internal human capital to justify some of these investments. For larger companies, the concerns typically fall at the other end of the spectrum, such as will their insourced solutions scale appropriately and cover the desired data types through all the hand-off points? Thus I think it's safe to say that for most companies, insourcing will be a multi-year effort, with iterative cycles of designing effective and defensible workflows to connect all the dots.
October 27, 2009
10 Tips for Safe Social Networking for Attorneys & Experts
LinkedIn. Facebook. Twitter. Blogs. Bob Ambrogi, always on the forefront of web technologies and their impact, recently published two helpful "Top 10" articles - one each for attorneys and experts, with some great tips for those navigating online communities for networking and socializing.
One such tip is to separate professional and personal contacts into different networks. However, don't fall prey to the myth of anonymity or that restricted social networks will necessarily protect you. It isn't always clear which content is restricted to just your approved network contacts. Others have been known to seek invitations or sign up for accounts solely for getting at the "good stuff". As always, be ever mindful of what you post online.
Not surprisingly, the best and number one tip is to use good old fashioned common sense. However, given some of the gaffes Bob used as examples, it's easy to agree with his observation that it "sometimes seems to be in short supply these days".
Definitely good fodder for any law school ethics curriculum, since these are among the modern day challenges lawyers face while building both their practices and professional reputation online.
August 18, 2009
Legal EHR Summit: Thoughts & Impressions
From the many presentations and discussions at the AHIMA sponsored Legal EHR Summit in Chicago, it's clear that healthcare records and records management in the U.S. are changing. (In case you were wondering, "EHR" = Electronic Health Record). In George Paul's (Lewis & Roca) keynote, he shared how the U.S. government is pouring money into healthcare records via incentives in the ARRA and HITECH acts. Several presenters referred to these changes as the biggest change to healthcare privacy and security rules since HIPAA was enacted. Indeed, even as we discussed these developments, new security breach notification rules were due out yesterday. Also discussed in several sessions, these new laws will likely require many business associate contracts to be renegotiated.
It's also interesting to note that as much as some think of U.S. healthcare as high-quality and high-tech, the underlying HIT and records management systems and professionals are struggling with addressing these new changes, challenges, and ramifications, especially with respect to the legal aspects. For instance, many HIT systems are not geared toward the legal aspects of preservation (think dynamically changing databases on a daily basis) and production. Not surprisingly, their focus is on enabling the healthcare professionals and organizations in the provision of their services. Several cases were mentioned where the plaintiff's attorney wanted to see the data and screens of what the doctor saw when he/she was treating the patient. The response I heard throughout was that this wasn't possible due to the constantly changing nature of the data in these systems. It doesn't take much imagination to sense how well this goes over in litigation, and the need for creative solutions. Much discussion also centered around records management and creating/refining document retention policies, and just as importantly, complying with them.
There were also some pretty scary stories relating to Iatrogenesis, or the patient harm caused by the use of computer systems, and the lack of transparency and sharing of those problems by the software vendors.
There's also the issue of creating the necessary interoperability and sharing of information across different HIE's (Health Information Exchanges) - from local to regional to state to national levels. So there's a fair amount of catching up and transformation that needs to happen in this industry. The good news is that these issues are being discussed in depth across multiple disciplines - IT (HIT), Records Management, Legal, Risk Management, and Compliance, just to name a few.
With respect to the summit itself, this was the first time I attended an AHIMA conference. It's been well organized and everyone at AHIMA has been very helpful and friendly. There is definitely a spirit of cooperation and collaboration among everyone here, including the attending HIT, records and risk managers, consultants, and attorneys. Indeed, there is a high degree of interest in addressing and resolving these issues through better understanding of the legal issues by health information professionals, better definition of standards (for instance, what constitutes the "Legal Electronic Health Record"?), and transforming the records management systems and processes.
August 13, 2009
Blogging at the Legal EHR Summit in Chicago Next Week
What do e-Iatrogenesis, HIT, CPOE, EHR, and eDiscovery all have in common? They're just some of the many medicolegal and technological terms and issues being discussed next week at the Legal EHR Summit at the Chicago Marriott Downtown. The summit is organized by AHIMA, the American Health Information Management Association.
As our nation's healthcare industry becomes even more computerized and integrated, partly due to ARRA (the American Recovery and Reinvestment Act of 2009), the intersection of healthcare, electronic records, records management, and legal issues (including litigation and eDiscovery) will likely explode as well.
I'll be attending and blogging as time and Wi-Fi access permits. Please feel free to look me up as I enjoy the many opportunities for discussions at these events. For the uninitiated, I've put together a quick cheat sheet for a few select terms below, along with their sources on the Web for more in-depth definitions:
HIT: Health Information Technology
CPOE: Computerized Physician/Provider Order Entry - An electronic system that healthcare professionals can use to enter drug prescriptions and diagnostic orders, among other things.
EHR (aka Legal EHR): Electronic Health Record
e-Iatrogenesis: "Patient harm caused at least in part by the application of health information technology."
Stay tuned for more blog posts on these topics . . .
August 05, 2009
“Moldy” Twitter Post Draws Lawsuit
Yet another twitter post, this one by a Chicago tenant referring to an allegedly moldy apartment, draws a $50,000 lawsuit against the Twitterer for defamation. As the tweet was reposted within Twitter and around the world, it provides a wealth of evidence as to not only the post itself, but its far reach across the Internet.
Both sides are going to lose in this suit, though. According to the article, the original poster could very well lose the suit. Even if she ultimately prevails, it's going to cost her dearly in defense fees. Likewise, the realty management firm's statement to the the Chicago Sun-Times that "We're a sue-first, ask-questions-later kind of an organization" resulted in a "firestorm of criticism." It's a harsh lesson that companies sometimes learn the hard way in responding to customer complaints in the online arena. "This could generate bad press for them for years, and that wasn't (Bonnen's) doing," said Sarah Milstein, co-author of the just-released "The Twitter Book." Who's going to want to rent from or otherwise do business with a a self-admitted "sue-first" company?
There are lessons to be learned from both sides. First, don't make posts on public or social networking sites that are intended for a particular individual, especially when you are peeved at something or otherwise under emotional stress. Public postings on social networking sites amplifies the dangers of bad e-mail decisions by several orders of magnitude. Far too many people are either unaware of or forget to change their privacy settings so that only those users can see the post. You might as well be shouting it to the Washington Post, New York Times, your adversary and their counsel. There is some very good advice in the SFGate article cautioning posters about this.
Likewise, companies also need to be very mindful of their reactions and public responses to such incidents. They often damage themselves in the public's eye far worse by how they responded to such a posting, than the original posting caused in the first place. Sometimes lawsuits can be avoided, and sometimes they can't. Regardless, it's important for businesses to avoid kneejerk responses that only serve to reinforce public opinion that they are the villains. They may win the suit, but then can lose even more business in the process by generating additional reputational harm whether they realize it or not. So which was the better business decision?
July 24, 2009
Enterprise Information Management Issues to Consider in the Convergence of eDiscovery and eCompliance
Karthik Kannan, VP of Marketing and Business Development at Kazeon, just published a very helpful article on SC Magazine's site discussing the convergence of eDiscovery and eCompliance. As you'd expect, it's a marketing and business development article, so let's get that out of the way early. But regardless of whichever technology and process solutions one may prefer, I found the following to be an excellent summary of the issues and requirements one is likely to encounter when addressing the litigation readiness, information management, and compliance challenges in many organizations:
Certainly some of the points are subject to debate. For instance, the decision of which information or types of information should be subject to in-place holds is often an interesting and sometimes even a pointed discussion around the table. Also, while the article doesn't directly mention e-mail archives, many of the above principles would certainly apply. Overall I found it a helpful list of topics and features to consider when attempting to address enterprise eDiscovery and eCompliance initiatives.
I think it's even more important to remember that capability lists like these are most helpful when taken in the context of building a comprehensive information management and compliance program. Supporting policies and processes must also be developed to address the specific legal, records management, compliance, IT, and end business unit and users' needs and responsibilities. The resulting solution needs to make sense in the context of that organization's unique circumstances. It's in this context that these are excellent items to discuss and from which we can draw valuable insight in shaping those solutions.
July 09, 2009
Google to Offer Chrome OS – Cloud Computing Tie-in Seems Likely
Setting aside the Mac vs. PC debate for a minute, how about Chrome OS as your next OS choice? News.com reports that Google is moving beyond its Chrome web browser and Android smartphone operating system, and is actively developing a lightweight PC operating system based on Linux and Web standards for personal computers. It will also be based on Google's Chrome browser.
More info is available on this earlier report at News.com - that "lower-end PCs called Netbooks from unnamed manufacturers will include it in the second half of 2010. Linux will run under the covers of the open-source project, but the applications will run on the Web itself. In other words, Google's cloud-computing ambitions just got a lot bigger." (my emphasis added)
There is certainly a lot of buzz surrounding Netbooks and cloud computing, and tech pundits have been talking about the return to thin clients for years. For better or worse, Netbooks have been the first real manifestation of that prediction for mainstream users, or at least the first commercially successful one. A lot obviously depends on what Google ultimately delivers to us in Chrome OS, and the integration with their online apps.
As it is based upon Linux, I can see where Chrome OS could also end up as an alternative OS on mainstream PCs, probably set up by users in a multi-boot fashion much like Ubuntu, another Linux OS that's been designed to be more user friendly. Given the reduced computing ability of Netbooks and the likely phasing out of Windows XP, a lightweight OS such as Chrome could be a compelling Netbook successor - if it offers the right mix of what Netbooks users are looking for.
The Netbook market is a great focus for Google for several reasons. First, since Netbooks currently lack sufficient computing power to run heavier applications, they are best used as web clients, aligning with Google's online world and business model.
I also think Chrome OS already has too much competition on the mainstream OS front, from Microsoft, Apple, and even other Linux variations. So far, my impressions are that I have yet to see the Android OS take off as a serious smartphone contender (especially in light of the iPhone and Palm Pre, and new BlackBerry offerings coming from RIM). I still see the Chrome browser as somewhat of a tech curiosity rather than a mainstream browser, as most people are still using some flavor of IE or Firefox as their main browsers. That's not to say that Chrome hasn't introduced some nice features, such as tear-away tabs and better stability resulting from improved memory management. But it's been uniformly criticized as having too few features to compete head-on with leading browsers, an observation with which I tend to agree.
So, given the "less is more" approach of the Chrome browser, I expect the same philosophy in Chrome OS, particularly as it will be based around its browser namesake. And which computing platforms have capitalized on and appealed to us as "less is more"? That's right - Netbooks and cloud computing. Thus I see Google sensing a critical opportunity in the Netbook OS market in the interim between the aging Windows XP Home and whatever is next from Microsoft. It is an opportunity to tie together two emerging markets that are heavily steeped in the Web - Netbooks and cloud computing - in a way that Google couldn't do as effectively by relying upon others' operating systems.
Google has a long history of making great applications that are particularly easy-to-use, whether they are PC or web-based, including Google Desktop, Picasa, Google Maps, Google Earth, and Gmail. It will be interesting to see how Google approaches their OS design, particularly with Linux as it can be daunting for non-techie users under the hood. However, they've certainly had ample dress rehearsal with it in developing the Linux-based Android OS for smartphones.
While it certainly remains to be seen whether Chrome OS will appeal beyond consumers to significant business use, it's always nice to have options, especially in these emerging tech markets where the lines of traditional computing tasks and collaboration tools are being blurred almost daily to generate more value to us, the end users. From current reports, look for Chrome OS being available on Netbooks in the latter half of 2010.
[7.21.09 Update: eWeek has a thought-provoking slideshow, "10 Concerns About Google Chrome OS", pointing out such interesting tidbits such as Google is not a platform vendor but a Web app developer, and wondering whether any Linux-based OS will ever catch on with consumers as a comfortable OS. My point above about Chrome OS having too much competition on the mainstream OS front was also mentioned.]
July 07, 2009
Improve Vista’s Performance With Fantastic Free Indexer Gadget
I've been meaning to blog about this handy tool for some time now. Unless you bought a Netbook or custom ordered your PC online, just about every Windows PC sold within the past two years came preloaded with some version of Windows Vista. While I prefer Vista's interface and built-in search features to the aging XP platform, Vista definitely leaves something to be desired in the performance department. I often found my hard drive thrashing at the most inopportune moments, slowing my system down when I needed it the most. There was seemingly no rhyme or reason for it - until I looked at the system processes and found that the indexer was running amok.
Having indexed files really speeds up performance when you're searching for content on your hard drive - especially when searching within Outlook. But how often do we do that over the course of a day? Perhaps just a few minutes or seconds at a time when we're looking for a specific document or e-mail. The problem is that the rest of the time, we want our apps to launch and run as quickly as possible.
The common cure is to turn off Windows' indexer service altogether, but then you won't be able to search for newly added content since it won't be indexed - which completely defeats the purpose of having an indexer installed in the first place. Sure, one could use an alternate desktop search tool, but if you're otherwise happy with the built-in Windows search service, it's nice to have it run on your terms.
Enter a fantastic Vista gadget that has significantly reclaimed my system performance and my sanity when using Vista:
BrandonTools offers the Windows Indexer Status gadget, which allows you to:
Just so you're aware, if you're running as a standard user account in Vista (which you should for security reasons), you'll need to enter an administrator password when starting or stopping the indexer service (via the "play" and "pause" buttons on the gadget). This is a very small annoyance to eliminate a much bigger one. The nice thing is you only need to run the Windows Sidebar when you want to start or stop the indexer service. Otherwise, you can close the Sidebar to free up memory and increase your CPU performance even further.
It works with Windows Search versions 3.0 and 4.0. Windows Search 3.0 comes built-in with Vista, and version 4.0 is available as a free download from Microsoft.
June 08, 2009
Free ILTA White Paper: Best Practices for the Legal Hold Process
I'm honored that ILTA asked me to contribute a white paper on best practices for legal holds. It's a topic near and dear to my heart, as I advise companies seeking to implement more effective hold policies and procedures. The legal hold process is a critical stage in eDiscovery. Implementing and executing a well-designed legal hold process can significantly reduce the risks and costs associated with eDiscovery and other compliance requirements.
Crafting, adopting and implementing legal hold best practices often raises the following questions:
You can download a PDF reprint here at LTG, which answers these increasingly important questions along with examples from recent key eDiscovery case decisions.
I also recommend downloading and reading the full white paper collection, made possible by the combined efforts of ILTA's Litigation Support, Records Management and Law Department Peer Groups. There are a number of great contributions on the subject which many should find quite helpful:
I frequently hear that what keeps GC's and AGC's awake at night is their legal hold preservation and collection process, or lack thereof along with the fear of sanctions for spoliation and other discovery violations. If your organization has issues with its legal hold and other discovery processes or you'd like to know how you can improve their repeatability and defensibility while reducing cost and risk, please contact me via either the e-mail link on this blog or the e-mail address in the white paper. I'd be happy to discuss.
May 29, 2009
Microsoft Exchange 2010 Adds E-Mail Archiving & Limited E-Discovery-Friendly Features
According to InformationWeek, the next version of Microsoft's e-mail server, Exchange 2010, "will include integrated archiving and multi-mailbox search capabilities at no extra cost, making it easier for companies to, for example, comply with e-discovery requirements. But Microsoft will have to be careful not to alienate third-party archiving vendors such as Symantec and Quest."
"Until this version of Exchange, companies seeking to archive their e-mail centrally have had to rely on third-party software. That costly proposition has hurt adoption, and according to Osterman Research, only 28% of companies currently have central e-mail archives."
From this report, Exchange 2010 will also include the ability to view e-mail discussion threads, and a button to ignore those threads. It will also feature speech-to-text transcription of voicemails, something that lawyers have struggled with in advising companies who wanted to implement more convenient services such as universal messaging, where voicemails get sent to your inbox.
Another interesting Exchange 2010 feature for legal departments:
"There's also new role-based administration, which means that Exchange administrators can delegate responsibility for some non-IT tasks to non-IT workers. For example, human resources managers could update employee information, the legal department could handle e-discovery and audits, and employees could create their own distribution lists." (emphasis added)
However, don't get overly excited at these new developments, at least not yet. Microsoft has a long history of working in and dumbing down features from competitors' offerings. The mimicked features often haven't had nearly the same range or depth as a competitor's fuller offering. However, in some cases, companies have recognized that it was "good enough" for their immediate needs and later purchased additional capabilities from other solution providers to fill the gaps as they were identified.
A hat tip to ARMA for their post pointing this out: "Analysts note that Exchange 2010 will not provide such advanced features as content analytics and archiving of multiple content types commonly found in higher-end products geared toward e-discovery." (emphasis added)
Thus a key question will be: What will cash-strapped organizations lacking e-mail archiving systems opt for in their next round of e-mail management purchase decisions? Some might start off with Exchange 2010 to see if it's "good enough", particularly if their eDiscovery needs are relatively light. E-mail archiving vendors may also need to step up their game by offering enhanced value-added tools such as advance search, deeper and more robust content analytics, and handling of diverse content types, as well as making it easier to identify and export data to other downstream eDiscovery systems for processing, analysis, review, and production.
I tend to think that organizations with more diverse, complex, and/or higher volume discovery tasks will still need additional tools and services than simply Exchange 2010. But it's good to see that Microsoft is recognizing the shifting role that e-mail is playing in organizations' compliance, discovery, and risk management programs and beginning to add more data management features.
Exchange 2010 is coming right around the corner, per InformationWeek: "The company plans to release Exchange Server 2010 in the second half of this year. The rest of Office is due in the first half of 2010, with limited test releases beginning the third quarter of this year. Outlook 2010 will come as part of the rest of the Office suite, though it's unclear when the next version of Outlook Mobile will be available."