A Pre-emptive Approach To E-Discovery: Mimosa System's NearPoint

Tuesday, April 1, 2008 - 01:00
Mimosa Systems

Editor: Please give our readers a brief background on Mimosa Systems and your background and experience which has figured in the success of your company.

Tolson: Founded in 2003, Mimosa Systems offers software-based solutions for archiving Microsoft Exchange email systems. Our clientele runs the gamut from very small to Fortune 100 companies.

I have had more than 17 years experience in product marketing and consulting in both the storage and archiving solutions market, having worked at Hewlett Packard, Iomega, StorageTek and Hitachi Data Systems. As a principal consultant and practice manager, I have been involved in the e-discovery and compliance consulting business, specializing in storage solutions, email archiving, enterprise content management and information lifecycle management. I have recently co-authored the book Email Archiving for Dummies.

Editor: Please discuss the next wave of e-Discovery technologies and the benefits these will provide.

Tolson: The trend for e-discovery technologies is for corporate legal departments to adopt a pre-emptive strategy for e-discovery. They are now looking at what electronically stored information (ESI) might be of discoverable interest to a potential litigant. More corporations are being pulled into litigation which in turn involves huge e-discovery costs looking for potentially responsive records within much shorter timeframes - a reactive approach. We believe that companies and their legal departments are beginning to understand that getting discovery-ready is a more cost effective and less risky way of doing business; they must put policies and systems in place that capture and make searchable all potentially discoverable information ahead of time so they have ready access to it - a pre-emptive approach.

Editor: Do you have any idea of the number of companies that are discovery-ready?

Tolson: There are few companies that are actually discovery-ready. There are a couple of reasons for that. The process by which either the IT group or the corporate legal group goes through the planning and budgeting process for discovery and archiving solutions is rather lengthy. Since the new amendments to the Federal Rules of Civil Procedure in 2006, some are just becoming fully aware of what they need to do to comply. This process has just started over the last year or so. Only a small percentage of the companies that we look at are actually completely ready. The other problem is that even those companies that thought that they were putting systems in place to manage their e-discovery needs are now beginning to learn that those systems, using older technology, are not really capturing all of the potentially discoverable information within their systems. These companies now have to go back and purchase new technologies to insure they can respond to a discovery request in a less costly and less risky way. In most cases they will have to replace their first generation systems to accomplish this.

Editor: Describe the landscape of e-discovery and the drivers for new technology solutions.

Tolson: The new amendments to the federal rules have been a big driver over the last year. Other drivers include retention requirements dictated by federal and state regulation and storage management issues. Most companies have some form of federal regulatory retention requirements. The most obvious regulations relate to the financial services industry and the health care industry, but any company that employs people has several federal employment related regulations, such as the Americans with Disabilities Act, etc. Another driver is basic storage management. When companies figure out that they are not managing their records, including emails efficiently, they start looking for systems that will better manage records storage including creating a "single instance" of records (that is, eliminate thousands of duplicates of records within the system). But, the biggest driver now is in preparing for litigation and discovery.

Editor: How does Mimosa streamline the e-discovery process?

Tolson: Let's consider two possible strategies: to be reactive or to be pre-emptive. In the reactive case, if a company is sued, it brings in their external counsel or hires an e-discovery company which looks for responsive records throughout the corporate infrastructure. This is a time-consuming and disruptive process. It entails a visit and search of every target custodian's workstation looking for potentially responsive records. The questions to ask yourself are: do they store records or PSTs on removable media like DVDs, CDs, or USB thumb drives? Have they moved them into the network share-drive? Have they ever forwarded their emails to their personal email account? With the Mimosa archiving solution (a pre-emptive e-discovery archiving solution) all potentially responsive records, emails and exchange objects, are captured in near real-time, fully indexed and placed in secure storage. If at any point in the future the company learns that it is facing litigation or is in fact being discovered, the secure central archive already exists enabling a very quick search for the responsive records making your response time to an e-discovery request almost instantaneous. This provides a huge cost reduction as well as a noticeable risk reduction from the reactive type of search strategy.

Editor: You spoke about "single instance storage." Could you elaborate on that?

Tolson: Single instance storage is a more efficient way of storing records so that they take up less storage space. An example of this is where a corporate HR department sends out an email to a thousand employees telling them that there's going to be a corporate picnic in three weeks and attaches a Google map describing the location, and the map happens to be one-megabyte JPEG in size. Within the email system there could be anywhere from five to ten copies of that message to literally 100s of copies of that one megabyte message, which would obviously take up a great deal of storage space. Within a centrally controlled Mimosa NearPoint archive, the system recognizes that it already has a copy of that map so that it is not copied into the archive over and over again. Instead of a thousand copies of the one-megabyte email, we have one copy of the one-megabyte email with a thousand pointers to the employee email addresses.

Editor: Is the Mimosa NearPoint archive actually housed in the customer's data center?

Tolson: The Mimosa NearPoint solution is considered an in-house solution in that the archiving solution is resident in the customer's data center on the customer's servers. The customer manages it and maintains it. We find that most companies prefer to keep their records internally in-house.

Editor: What is next on the horizon for e-discovery solutions? Are new procedures coming down the road?

Tolson: Currently, the biggest target of e-discovery is corporate email systems. In the future, all corporate communications, like faxes, instant messages, and voicemails will flow through the Exchange system, and because of that, will be discoverable in litigation. So ideally all those different types of data should be captured, archived, indexed and made searchable for discovery. Companies with a reactive archiving strategy will discover they have major problems.

Editor: Does this also include capturing metadata?

Tolson: Especially for state and federal courts, email metadata is extremely important in litigation because the metadata has important descriptive information in it which may pertain to the case. The new FRCP amendments specify that records should be turned over to opposing counsel with all associated metadata in its native format. The best practice is to store and secure files in their original format with all of their associated metadata.

Editor: Does your system also capture instant messaging?

Tolson: We are finding more and more companies using instant messaging systems for increased productivity. Instant messaging systems can be a huge trap for companies once they are on notice for litigation. Few companies are equipped to archive instant messages. Opposing counsel regularly target instant messages in their discovery requests knowing this. The Mimosa NearPoint system actually does have the ability to capture and archive the most popular instant messaging systems.

Editor: How are you distinguishable from other archiving systems?

Tolson: Our biggest differentiator is that all of our competitors use an older technology known as journaling within the Microsoft Exchange system to capture emails and attachments that are sent or received. This journaling function within Microsoft Exchange functions as a catch-all mailbox. Anytime an email is sent or received, a copy is dumped into this catch-all mailbox which is grabbed by our competitors' archiving system and put into an archive. This is a problem in that their archiving system is grabbing information from literally thousands of different mailboxes and putting data into a single catchall mailbox. This means that much of the discoverable data - like message attributes such as calendar entries, task lists and notes - are not captured at all. In some cases discovery requests can include data requests such as: was an email opened and when? When was it deleted? Who was it forwarded to? What did the custodian's calendar look like on a certain day? Should a plaintiff's attorney ask for a custodian's calendar on a given day, the customer would have to restore back-up tapes to get this level of information which is very costly and time-consuming. The Mimosa NearPoint System is the only system that captures all potentially discoverable information within a customer's Exchange server. We refer to the NearPoint archive as a single point of discovery. We capture everything that could be asked for and make it available very quickly. You only have to query our system and very quickly you have the response to your discovery request.

Please email the interviewee at wtolson@mimosasystems.com with questions about this interview.

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