Up Front

Below is the latest news, trends, and analysis from the January-February 2011 issue of Information Management. At the end of each item is an "END" mark just in case you need to step away and pick up where you left off.

PRIVACY

Do Corporations Have Privacy Rights?

The U.S. Supreme Court’s decision in AT&T v. FCC will determine whether corporations are extended even more
rights than they already have been given by the court in the past few years.

In this case, the court must determine whether AT&T should be protected from unwarranted privacy violations under the Freedom of Information Act (FOIA). Under Exemption 7(C), FOIA exempts records or information collected for law enforcement purposes from mandatory disclosure when such disclosure could reasonably constitute an unwarranted invasion of personal privacy. The question in the case is whether that exemption protects the privacy of corporations.

The case stems from a FOIA request filed by CompTel, an industry trade group that represents some of AT&T’s competitors. The request sought records related to the FCC’s 2004 investigation into AT&T’s billing practices under ERate, which is a government program aimed at improving Internet access in schools, according to Bloomberg.

AT&T objected to the release of the documents, citing Exemption 7(C), arguing that disclosure of the sensitive documents would reveal trade secrets and infringe upon the corporation’s “personal privacy” under the act.

The FCC denied AT&T’s request to prevent disclosure, explaining that Exemption 7(C) does not apply to corporations. The FCC had released some of the information under an open records request, but withheld some, citing FOIA exemptions that cover trade secrets and privacy rights.

AT&T appealed to the Third Circuit Court of Appeals, which reversed the decision, finding that a corporation is a person under the definition of Exemption 7(C).

So the FCC, joined by the Obama administration, appealed the ruling to the Supreme Court. AT&T urged the court not to hear the case, arguing that “corporations, like individuals, face the prospect of public embarrassment, harassment and stigma based on their involvement in such investigations.”

In a brief filed by then-solicitor general, Elena Kagan, the Obama administration argued that the lower-court ruling “will result in the withholding of agency records to which the public should have access, including records documenting corporate malfeasance.” Kagan didn’t take part in the court’s decision agreeing to hear the case.

In addition, supporters of AT&T’s position worry that such FOIA requests may be used by competitors to access sensitive data provided to the government or by consumer advocates to harass corporations. Those individuals who
oppose the Third Circuit Court’s decision argue that if corporations can use privacy as an excuse to withhold documents, then they may hide information that the public has a right to know and cover up bad behavior. END

GOING GREEN

86% of UK IT Experts Rely on Paper

An overwhelming majority – 86% – of IT professionals in the United Kingdom still rely on paper records, with 51% stating they are “very reliant,” according to a survey.

Document management software company Version One also found that 13% of those individuals surveyed were just “occasionally reliant” on paper, while only 1% said they hardly ever depend on paper.

Equally surprising, 20% of companies surveyed said they need further proof that electronic evidence saves money before they transition to electronic records. Thirty-two percent cited improving customer service as enough of a reason to upgrade their digital storage systems.

Forty-eight percent said they are not convinced that electronic records management provides adequate security, according to the survey. END

SURVEY

ESI Policies Outdated, Survey Says

More companies than ever before have implemented an e-discovery plan, but they may not know what it entails or when it was last updated, according to a Kroll Ontrack survey.

That means whatever steps companies have taken to protect and locate data may be trumped by their inability to review their policies after they are created, the survey of 200 corporate IT and legal departments suggests.

The survey found more than 52% of companies in the United States have an electronically stored information (ESI) strategy for responding to litigation or investigations. While 24% of companies said they have updated policies to reflect mobile devices and privacy laws, 55% either have not updated policies at all or do not know if updates have occurred.

Kroll Ontrack’s “Fourth-Annual ESI Trends Report” also found that:

• Nearly 79% of companies in the United States have a document retention program.
• About three in five companies have an archiving technology platform in place to manage ESI storage and destruction in an automated way.
• Approximately 67% of IT and 58% of legal are aware of their corporation’s implemented archiving technology.
• Only 40% of respondents agree and 23% of respondents strongly agree that their organization’s ESI discovery strategy is repeatable and defensible.
• While 38% of respondents have tested their policies, 45% don’t know if their policies have been tested.

Also significant, 44% of legal and IT department respondents said they believe the responsibility for developing and enforcing their firm’s ESI discovery strategy should be shared, up from 35% last year, according to the survey. END

E-DISCOVERY

Judge Orders Prison Time for Spoliation

Recent trends reveal that individuals who engage in e-discovery misconduct are often slapped with large fines by judges. However, a judge in one recent case has upped the ante.

Calling it the “single most egregious” case of discovery violations he had seen in his almost 14 years on the bench, Chief U.S. Magistrate Judge Paul Grimm recommended jail time for the defendant unless it pays the plaintiff’s attorney fees and costs.

In the copyright case Victor Stanley v. Creative Pipe, Grimm found the defendants, Mark Pappas and his company, Creative Pipe, intentionally destroyed relevant electronic data. In fact, the defendants did not even try to follow spoliation rules: they destroyed e-mails, ran programs, such as “Disk Cleanups” to erase damning information, and even returned drives full of relevant information to OfficeMax.

Pappas admitted to the destruction. Grimm cited defendant Pappas for behaving so badly over many years and said sorting out all the lies and fraud for purposes of the case had consumed hundreds of hours for himself and his law clerk.

In his 103-page opinion, Grimm wrote: “Pappas’s zeal considerably exceeded his destructive skill and his judgment in selecting confederates to assist in his efforts to destroy ESI without detection. While Pappas succeeded in destroying a considerable amount of ESI, Plaintiff was able to document this fact and ascertain the relevance of many deleted files. At the end of the day, this is the case of the ‘gang that couldn’t spoliate straight.’”

Grimm ruled in favor of the plaintiff and found the defendant’s willful destruction of relevant electronic data was tantamount to contempt. He recommended a two-year prison term “unless and until” the defendant pays the plaintiff’s attorney’s fees and costs.

Grimm also added this was not a case of negligence and should not make other litigators nervous. It was a case of “willful, bad-faith” spoliation. Still, it is the stiffest penalty yet for the intentional disregard and apparent flouting of discovery requests and court orders – and perhaps a sign that federal courts are getting tougher on e-discovery shenanigans. END

INFO TECHNOLOGY

Federal CIO Cites High-Risk Projects

About 26 IT projects across 15 federal agencies are considered high-risk and will be closely scrutinized by the Office of Management and Budget (OMB) and agency chief information officers (CIO).

In a memo, Vivek Kundra, the federal CIO, wrote that agency CIOs should recommend programs be dramatically changed or terminated if it is doubtful their improvement plans will succeed.

“We need to end a culture in Washington where we continue to throw good money after bad money,” he said, citing a Department of Veterans Affairs financial modernization program that was started in 1998, killed in 2004, restarted in 2005, and then terminated again recently.

OMB has relied on the new IT Dashboard – a publicly accessible website that compiles data on agencies’ IT programs – to provide information about projects, but the site lacks critical information, including the programs’ contractors in some cases, according to The Washington Post. The Government Accountability Office has criticized the inaccuracy of the site.

The 26 identified projects include:

• Homeland Security Information Network – Department of Homeland Security: The department’s unifying information-sharing platform, meant to allow federal, state, local, tribal, and private sector partners to collaborate and share sensitive but unclassified data
• Incident Management, Analysis and Reporting System – Interior Department: A department-wide information collection, analysis, and reporting system meant to improve collaboration among law enforcement activities nationwide
• FBI Sentinel – Justice Department: The bureau’s automated, web-based case management system meant to improve information sharing, search, and analysis capabilities
• Benefits 21st Century Paperless Delivery of Veterans Benefits – Department of Veterans Affairs: It will consolidate veteran benefits activities in areas like data integration, messaging, and correspondence in an effort to enable paperless claims processing
• Electronic Records Archives Program – NARA: It would offer web-based access to all types of electronic records and include tools for managing classified data and for implementing more efficient storage END

CLOUD COMPUTING

DHS Embraces the Cloud

The Department of Homeland Security (DHS) is implementing a private cloud infrastructure to better streamline and manage its IT infrastructure.

It also hopes to consolidate data centers in an effort to cut its facilities from 24 to two, according to Data Knowledge Center. Richard Spires, DHS chief information officer (CIO) and the department’s eighth CIO in eight years, is leading the charge.

“We really are trying to act as a private cloud, moving to a services-based pricing model,” he told Data Knowledge Center. “We are early in this, but making good progress. The current offering includes full virtualization capabilities, a multi-tenant environment, and is paid for as a service. One advantage of the new system is that it makes it easier to manage chargebacks for users within the sprawling DHS purview.”

One big challenge is that 80-90% of DHS’s data is classified, so it can host only a small amount of its records outside the firewall. END

STUDY

Digital Sound Files in Danger

Analog recordings made more than 100 years ago are more likely to survive than digital recordings created today, according to a recent study by the Library of Congress.

The first comprehensive study of the preservation of sound recordings in the United States also found that many historical recordings already have been lost or can’t be accessed by the public. That includes most of radio’s first decade from 1925 to 1935, the Associated Press reported.

In addition, recent history, including audio recordings from 9/11 and the 2008 election, are at risk because digital sound files can be corrupted, and widely used CD-R discs last only three to five years, according to study co-author Sam Brylawski.

The study reveals that while public institutions, libraries, and archives hold about 46 million recordings, big gaps in America’s recorded sound heritage exist because of files that have deteriorated or are not accessible. Only about 14% of pre-1965 commercially released recordings are available from rights holders, the study says.

Sound can be easily recorded and transferred to digital files, which require less space. But they require continuous maintenance and backup as technology changes, Brylawski said. Old analog files, in contrast, are more physically stable and can survive longer. Still, changes in technology required to play back the recordings is a problem.

The study recommends several solutions, including:

• New training and college degree programs for audio archivists. Currently, no universities offer degrees in audio preservation.
• Changes in copyright law to enable more preservation. Brylawski said current copyright restrictions make most audio preservation initiatives illegal.
• Increased coordination among preservationists to prioritize projects and develop methods that can be used by smaller institutions

The Library of Congress plans to follow its study with a National Recording Preservation Plan. It also plans to launch a National Jukebox online after securing a license to stream sound recordings controlled by Sony Music Entertainment. END

HEALTH RECORDS

DoD Wants to Replace $2 Billion EHR System

After spending $2 billion to upgrade its electronic health system (EHR), the U.S. Department of Defense (DoD) has declared it unsuccessful and wants a new system, according to a Government Accountability Office (GAO) report.

Back in 1997, DoD began upgrading and adding capabilities to its legacy record system in a project called the Armed Forces Health Longitudinal Technology Application (AHLTA), according to Federal Computer Week (FCW). The system manages records for more than 9 million service mem-bers and their families.

Users of the system have complained about its slow speed, poor usability, and unavailability of portions of the system, as well as overall fewer capabilities than expected, GAO said. In addition, no comprehensive project management plan or tailored systems engineering plan existed for AHLTA.

According to FCW, DoD plans to improve and stabilize AHTLA through 2015 while it acquires the new EHR system, Way Ahead. However, the GAO warns the department must figure out what went wrong with the first system – and fix it – before moving on to another.

The new system will resolve performance problems, provide comprehensive medical documentation, capture and share medical data electronically, and provide existing information sharing with the Veterans Affairs Department, FCWsaid. In September, the DoD set up a planning office for Way Ahead.

The department has requested $302 million in the fiscal 2011 for Way Ahead. It still has to choose a technology solution and set a schedule for acquisition. END

DATA SECURITY

ChoicePoint Data Breach Victims Receive $18.17

In 2005, ChoicePoint suffered a massive data breach that exposed the financial records of more than 163,000 consumers.

The data aggregation firm was found guilty of violating consumers’ privacy rights and federal law and was ordered to pay $10 million to the Federal Trade Commission (FTC) and $5 million in restitution to affected consumers. As part of that settlement, ChoicePoint agreed to maintain procedures to ensure sensitive consumer reports were provided only to legitimate businesses for lawful purposes, to maintain a comprehensive data security program, and to obtain independent assessments of its data security program every other year until 2026, according to the FTC.

It apparently failed to do so, because in the spring of 2008, an unauthorized person accessed its database and conducted unauthorized searches. The next year, ChoicePoint settled charges that it violated the 2006 order and agreed to a modified court order that expanded its data security assessment and reporting duties and required it to compensate affected consumers for the time they may have spent monitoring their credit or taking other steps in response.

So what do the 14,023 victims get for their suffering? A check for $18.17 has been mailed to each of them by the FTC as reimbursement for their financial records being compromised yet again by ChoicePoint due to lax database security. END

ARCHIVES

Former NARA Worker’s Home Raided

In late October, law enforcement officials and special agents from the National Archives and Records Administration’s (NARA) Office of Inspector General raided the home of a recently retired employee, removing two truckloads of material.

As Information Management went to press, he had not been arrested or charged with a crime. In fact, no one is saying what the seized material might include or why the Rockville, Md., home, owned by Leslie Waffen, was raided. NARA’s inspector general, Paul Brachfeld, said investigators and U.S. marshals executed a sealed warrant at the home, so he could not discuss the case.

Waffen worked at NARA for 40 years, most recently as head of the motion picture, sound, and video unit, before retiring in June.

U.S. Marshals Service spokesman David Ablondi said his agency helped investigators from NARA’s Archival Recovery Team serve a search warrant at Waffen’s home. The team investigates missing and stolen federal documents.

A law enforcement official told the media that agents arrived with a moving truck and a list of items they were seeking. Archives investigators located boxes of materials and “identified [the items] right away as theirs” in a basement room. The items were loaded onto the truck.

After the raid was reported by media sources, U.S. Archivist David Ferriero issued a memo to all employees in which he praised the work of agents in returning stolen property to NARA. He said he could not comment on the investigation.

According to Ferriero’s memo, “The security of the holdings of the National Archives is my highest priority. I will not tolerate any violation of the law that protects both records and property that belongs to the U.S. government and the American people.”

Interestingly, the raid took place just days after a GAO report criticized several federal agencies, including NARA, for security system weaknesses. For example, one source said Archives’ workers in the area are not routinely searched when leaving the facilities.

But Ferriero said officials are making changes, including putting in place a holdings protection team that is working closely with archival units to design improved training techniques, instituting new policies and procedures, and purchasing new equipment to safeguard Archives holdings. END

PRIVACY

United States Moving Toward Online Privacy Rules

Currently, there is no comprehensive U.S. law that protects consumer privacy online. Businesses have fought regulation, preferring to police their own actions. Past administrations have chosen not to enter the fray for fear of being accused of stifling innovation.

But as incidences of online monitoring of consumers by marketers, buying and selling of consumers’ most  information, and identity theft continue to skyrocket, the government apparently has decided to take action.

The Federal Trade Commission (FTC) polices Internet privacy issues now, but unless the action violates privacy and is considered “deceptive” or “unfair,” it can’t do much. Recent initiatives may change this and mark a real turning point in Internet policy for the United States.

The FTC and the Commerce Department will soon release separate, and possibly conflicting, reports addressing online privacy, according to The Wall Street Journal (WSJ). Both have said publicly they want tougher privacy standards. However, top Commerce officials have hinted that their department favors voluntary but enforceable standards. The FTC, on the other hand, is expected to push for stricter rules for consumers, including a “do not track” option for websites similar to the “do not call” phone lists.

The Obama administration has already begun preparing for a new approach and new laws to protect Internet privacy. It plans to create a new online privacy office and watchdog position to manage the effort, according to the WSJ. The White House also has put together an interagency task force to help move the recommendations into policy. It will focus on ways to protect consumers while making U.S. companies more competitive internationally, according to The New York Times.

The administration may find rare bipartisan cooperation from Congress, as members of both parties have recently criticized companies for massive data breaches. Rep. Joe Barton (R-Texas), co-chair of the Congressional Privacy Caucus and ranking member of the House Energy and Commerce Committee, said he welcomed the administration’s privacy initiative.

The Commerce Department’s report is expected to be released before the FTC’s report. What comes after that will be worth watching for U.S. Internet users. END

DATA SECURITY

EU to Overhaul Privacy Laws

The European Commission (EC) said it will update its data protection laws to better protect Internet users’ personal information, in light of recent data breaches involving Facebook and Google.

EC Commissioner for Justice, Fundamental Rights and Citizenship Viviane Reding said the commission will overhaul the European Union’s (EU) data protection rules to address social networking, targeted advertising, and other online services that have heightened privacy concerns. The new legislation, which is expected to be introduced this year, will replace current laws that were passed in 1995, according to The New York Times.

The commission said it wants the new law to allow users to:

• Be informed “in a clear and transparent way” about how their information will be used
• Be able to fully and permanently delete digital data, such as social networking profiles
• Receive an alert when their information has been used in an unlawful manner

Recent concerns in several EU member nations over Google’s Street View online mapping service have prompted the EC to review current privacy regulations. Officials in several EU member countries are still investigating Google’s actions, which included inadvertently collecting unencrypted e-mail and password information when it was gathering pictures for its Street View service.

Facebook, meanwhile, said some of its social networking applications had shared personal information with online advertisers without users’ knowledge.

The EC announced that it would accept comments from privacy advocates, technology companies, and other interested parties until January 15, 2011. END

SOCIAL MEDIA

NARA Instructs Agencies on Social Media

A recently released National Archives and Records Administration (NARA) bulletin warns agencies that social media content could be federal records requiring full archival treatment.

“Guidance on Managing Records in Web 2.0/Social Media Platforms,” released in October, says that if third-party hosted social media content is a duplication of records found elsewhere, then the duplicate content may be deemed a non-record. However, if an agency hosts a social media platform on its own website, then the records require a schedule, regardless.

The content in question also requires a records schedule if the platform adds value, such as better indexing and public comment or other collaboration opportunities, the bulletin states.

The bulletin also cautions agencies to be careful when using private sector social media platforms because the service provider could stop providing the service or delete information from an agency’s account, according to Fierce Government IT. NARA said agencies should make sure a standard records management clause is included in any contract it signs with a social media provider.

Before using a third-party service, the bulletin adds, agencies should consider whether they will have direct access to content.

The bulletin’s appendix includes a flowchart (below) to help agency staff determine if thirdparty social media requires a new records schedule. END

STUDY

Survey Reveals Interest in Records Management Is Up

In August, AIIM polled 650 business people not involved in records management (RM) about RM and published the findings in the report “E-Discovery and ERM: How is Records Management Performing in the New Spotlight?”

The survey reveals the priority given to records management over the past two years has risen in 80% of companies, more than half of whom also said they planned to increase spending on RM software. In nearly half the cases, businesses said they had implemented RM across departments, with 17% saying they had applied it across the entire enterprise. Seventeen percent said they had achieved return on investment within two years.

The survey wasn’t all good news, however. For example, it revealed that businesses struggle with retention policies when it comes to Enterprise 2.0 and social media. While 86% of them include office documents among their electronic records, only 12% said they are including Enterprise 2.0 and social media content.

As for e-mail retention, 18% of businesses said they store them on exchange archives, while 9% still keep them on local drives. Five percent admitted to printing out and filing e-mails, and 16% have no policy at all.

AIIM also found that many businesses recognize the value of e-discovery software. The average e-discovery request takes 25 days for those companies without a RM system, while it takes only 12 days with such a system. END

FOIA

Watchdog Group Sues NARA for Clinton Tapes

Judicial Watch has filed a lawsuit against the National Archives and Records Administration (NARA) to obtain access to tapes containing 79 recorded conversations between former President Bill Clinton and historian Taylor Branch.

According to The Washington Post, Clinton invited Branch to the White House, often late at night, to confide in him details of his presidency from 1993 to 2001. Branch did not keep the tapes, which he gave to Clinton at the end of each conversation. But Branch dictated his own recollection of the conversations, which was the basis for his 2009 book, The Clinton Tapes.

The conservative watchdog group says the tapes are official presidential records subject to the Presidential Records Act (PRA), however, NARA maintains the tapes are not official presidential records but rather personal papers of Clinton.

The PRA states: “[P]residential records” are documentary materials created by the president “in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the president.”

Judicial Watch’s complaint, filed October 28, 2010, with the U.S. District Court for the District of Columbia, states: “These audiotapes preserved not only President Clinton’s thoughts and commentary on contemporaneous events and issues he was facing as president, but, in some instances, recorded actual events such as presidential telephone conversations.”

According to media reports, the tapes, which were recorded between Jan. 20, 1993, and Jan. 20, 2001, cover topics, including Clinton’s:

• Thoughts and reasoning behind foreign-policy decisions, such as the United States’ military involvement in Haiti and the possibility of relaxing the United States’ embargo of Cuba.
• Discussions with senators about voting against specific amendments, his reasoning behind entering into the North American Free Trade Agreement (NAFTA), and a conversation with U.S. Secretary of State Warren Christopher about Bosnia

Judicial Watch’s original FOIA request was filed in October 2009 with the Clinton Presidential Library, which is run by NARA. The library responded that the records were not subject to FOIA or the PRA. Then in November of that year, the group appealed to NARA, which responded in March that it did not consider the tapes to be presidential records.

Judicial Watch maintains in its complaint that Clinton unlawfully retained control of the tapes after leaving office. It wants NARA to maintain and release the tapes under the PRA, according to The Post.

Miriam Kleiman, a spokeswoman for the National Archives, told The Post: “Our prior response to Judicial Watch’s FOIA request was that these are personal papers of President Clinton, and the matter is now in litigation.” END

SOCIAL MEDIA

German Workplaces Ban Social Media

Fearing corporate espionage, some top German companies have banned social networking sites like Facebook and Twitter from the workplace. The firms, including VW, Porsche, and gas giant Linde, are worried employees might give away trade secrets and be less productive, according to a report in WirtschaftsWoche magazine.

Computer experts say social networking sites pose a large threat to company IT systems, and 56% of German firms cited security fears as the primary reason they have restricted such sites, according to a study by IT security firm Clearswift.

Thirty percent of German companies fear social networking sites will distract their employees if they are given unlimited access, the survey also revealed.

Social websites related to work, such as Xing and LinkedIn, still can be used by employers. END

HEALTH RECORDS

Patient Data for Sale in Texas

Texans’ most private patient information is being sold and given away without their consent – and the federal health information privacy law, the Health Insurance Portability and Accountability Act (HIPAA), doesn’t protect them.

According to a recent investigative report by The Austin Bulldog, the Texas Department of State Health Services (DSHS), which is required by law to collect detailed hospital-patient data from nearly every hospital in the state, has sold or given away hospital patients’ data since 1999. That’s more than 27.7 million individual patient stays from 1999 through 2008, according to DSHS’ “Public Use Data Files.”

Those files contain more than 200 data fields, which reveal patients’ insurance coverage or lack of, procedures performed, intimate details, such as “abortion performed due to rape” or a drugor alcohol-related diagnosis. The fields also divulge a patient’s city, state, county, race, and ethnicity.

Texas hospital-patient data for the years 1999 through 2003 are available at no charge. Data for the years 2004 through 2009 can be purchased for a minimal cost, according to the investigation. Texas hospital-patient data is available from DSHS through its website for the Texas Healthcare Information Collection Center for Health Statistics.

Two versions of the files are available for purchase: (1) a research version, containing complete personal information, such as birth date and dates of hospital care; and (2) the de-identified version, which is free and does not contain as much personal information as the research version. DSHS has removed the patient’s dates of admission and discharge, but details about diagnoses and payment information remain, as well as zip codes and gender.

After August 2, 2010, patients’ street address was removed from the research version of the files, although zip codes, state, and county data remains, the investigation found. The research version is available to lobbyists, trade groups, private businesses, governmental agencies, and universities, as well as doctors and hospitals, according to the report.

DSHS said Social Security numbers do not appear in any version of the public use data files, and an alphanumeric identifier replaces a patient’s name.

According to Chris Van Deusen, assistant DSHS press officer, between January 2009 and July 2010, buyers paid to download 916 quarter-years of the hospital-patient public use data files years 2004 to 2009.

They paid $4,600 per year, or $1,400 per quarter, for the years 2007-2009, according to the data order form. For years 2004-2006, buyers paid $525 per quarter. All buyers also paid DSHS a processing fee of $100 per quarter year of data, he told The Bulldog.

Interestingly, individuals who download the free hospital-patient public use data files remain anonymous.

Austin psychiatrist and privacy advocate Deborah Peel, M.D., told The Bulldog that such data sales are “huge research loophole” in the federal laws established by HIPAA.

“The HIPAA research loophole allows any entity doing ‘research’ to be able to use patient data without consent. ‘Research’ is not defined in HIPAA or other regulations.”

Privacy experts say HIPAA originally did require patient consent to share medical information. However, the Bush administration removed the original consent requirement in 2003. Since then, no one needs a patient’s consent to sell his or her records, Peel said. Furthermore, the health services department isn’t a “covered entity” as defined by HIPAA, and so does not have to abide by the law’s privacy rule.

Experts like Peel say they fear that what is taking place in Texas will occur in more states on an even larger scale with the arrival of a nationwide electronic health record system. END

GOVERNMENT RECORDS

FBI Takes Over Sentinel Project

In July, the Federal Bureau of Investigation (FBI) decided to halt the last two phases of development on its Sentinel case management system. Now, the FBI has announced it will take over the project from its contractor, Lockheed Martin.

The agency has released a plan to complete Sentinel using agile development and internal resources, while reducing Lockheed to a supporting role, according to InformationWeek.

It’s a bold attempt by the agency to save the project, which is currently budgeted to cost $451 million due to rising costs and several delays. It was originally scheduled for completion in 2009, but it was pushed back to a target date of September 2011.

Chad Fulgham, FBI chief information officer, told InformationWeek that development on the project restarted in October and the goal now is to finish the project on budget and with no further delays. The plan still must be approved by federal authorities, including the inspector general, the Department of Justice, and the Office of Management and Budget.

The Sentinel project began in March 2006, following the much publicized failure of the Virtual Case File System, which was supposed to replace the FBI’s outdated system for managing case records.

With most of Sentinel’s hardware and software infrastructure in place, two of its four phases have already been completed, InformationWeek said. Despite the fact that more than 5,000 users now log into Sentinel weekly, much of the system’s functionality, including a new case management database and some reporting capabilities, has not been completed, and the existing outdated Automated Case Support system is still being used.

According to InformationWeek, most of Sentinel’s core functionality is comprised of commercial software, including EMC’s Documentum document management software, Oracle databases, IBM’s WebSphere middleware, Microsoft’s SharePoint, and Entrust’s PKI technology. Fulgham said Lockheed Martin will continue to be involved, primarily providing support to the capabilities it has already delivered.

The change will not be easy or cheap, however. Justice Department Inspector General Glenn Fine said the FBI has already spent $405 million of the $451 million budgeted for Sentinel. A review conducted by a government-funded research firm estimates the system will cost another $351 million to complete, according to The Wall Street Journal. A Justice Department audit said the FBI’s plans “would raise questions about the cost and complexities of the FBI having to maintain two separate case management systems for the foreseeable future: an obsolete system for old cases and another system for new cases.” END

STORAGE

Slow Uptake for Storage Solutions

Three technologies have been tapped as ways to stem the tide of the data tsunami plaguing corporate storage systems, but few are trying them.

Experts say one de-duplication can cut operational costs by reducing multiple duplications of information. Others say de-duping data will save expenses related to litigation by reducing the total store of information that must be preserved and/or reviewed by legal counsel.

However, a recent InformationWeek survey of 437 business technology professionals reveals “low current adoption rates ... with just 24% of respondents using the technology.” However, the survey also found 32% of respondents were evaluating the technology. Only 10% said they would not consider using the technology.

Two other technologies pegged as ways to deal with data overload in corporate storage systems also have low adoption rates, according to the survey.

Thin provisioning, according to Computerworld, allows an organization to purchase minimal shortterm storage capacity and work with vendors to set thresholds that alert them when more is needed. It had been deployed by only 17% of the respondents; 15% said they had no intention of using it.

The use of a massive array of idle disks (MAID), according to SearchStorage.com, is a “storage technology in which only those disk drives in active use are spinning,” which “reduces power consumption and prolongs the lives of disk drives.” Only 12% said they had deployed it; 17% showed no interest in using MAID. END

E-DISCOVERY

Sedona Conference Issues Comments on E-Discovery Proportionality

The Sedona Conference® recently published its Commentary on Proportionality in Electronic Discovery. The commentary provides valuable insight and guidance on a hot topic in ediscovery today – proportionality – and is meant to be a framework for applying proportionality to all aspects of e-discovery, according to Electronic Discovery Law.

The publication identifies six principles of proportionality:

1. The burdens and costs of preservation of potentially relevant information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation.
2. Discovery should be obtained from the most convenient, least burdensome, and least expensive sources.
3. Undue burden, expense, or delay caused by a party’s action or inaction should be weighed against that party.
4. Extrinsic information and sampling may help determine whether requested discovery is important enough to warrant the potential burden or expense of its production.
5. Non-monetary factors should be considered when evaluating the burdens and benefits of discovery.
6. Technologies to reduce cost and burden should be considered in the proportionality analysis. The commentary in its entirety is available at www.thesedonaconference.org/publications_html.

E-DISCOVERY

Executive Pays $1.1 Million for Destroying Evidence

A former Citidel Investment Group executive has paid $1.1 million in sanctions for destroying evidence in a case resulting from a lawsuit brought by Citadel.

A Chicago judge ordered Mikhail Malyshev to pay the fine for “scrubbing” his computers despite a document preservation order. Malyshev admitted irretrievably deleting the files but said he was trying to destroy pornography and not evidence related to the case.

Judge Mary Rochford called Malyshev’s actions “more egregious than anything” she had ever seen.

“Malyshev has acted in disregard of the orderly administration of justice,” she wrote. “He improperly and significantly disrupted the discovery practice and impaired the truth-seeking process for all parties.”

Still, the sanction could have been worse for Malyshev. Citadel had asked for a $15-million penalty, which Rochford called punitive. The sanction she imposed covered only legal fees and costs. At Citadel’s request, the $1.1 million was donated to two Chicago charities.

Last October, Rochford entered an injunction against Malyshev and Jace Kohlmeier, another former Citadel high frequency trader, barring them from working on their new business, Teza Technologies, until their non-compete agreements expired. She also said they could not hire Citadel employees for one year. END