Preservation orders and the rules on Electronically Stored Information (ESI) are complex areas for policy makers and also IT folks. Some of these issues I have raised in my article and also briefly during my talk at BCS in November 2011. Both these are available on this page.

Personally I find the term, ESI a confusing term in the context of electronic discovery/disclosure (edisc). In edisc it is not only the digital/electronic information in storage that the rules/laws are addressing. The word ‘stored’ implies storage media/medium/devices and the data in storage is ‘at rest’. Hard to imagine that emails are ESI. In my talk I stated that edisc folks tend to address edisc by talking about discoverable media/medium/devices which is not the case in edisc. So now the proposed FRCP is addressing ‘discoverable information’ instead of just ESI.

When I said ‘old’ it’s over 20+ years aged Sony TV. Still working fine except the remote sensor is not working. Anyhow I cancelled my TV licence yesterday via e-mail and wasn’t too sure what I need to do to ‘disconnect’ my set. Phew! I am glad it’s a simple disconnect of cables from my set (to ‘show’ that I won’t be using my TV for recording or receiving programmes). Amazing…it’s not something I imagine doing i.e. disconnecting my TV…sounds rather weird in this age of gadgets and the likes.

Maybe soon the ‘TV’ set (like my ‘old’ TV) will be revamped or re-classified to be something else to cater for the ‘digital TV’. Will TV still be ‘TV’ and not ‘HD TV or digital TV or something TV’?

Classification sounds easy but is it?

In ediscovery/edisclosure, searching for ESI assumes that the data has a hook or a ‘name’ or being indexed or classified to denote the nature of the ‘data’. As the nature of ‘data’ changes and also the storage of it or the gadgets that hold it changes, classification requires far more imagination than simply throwing out the ‘old’ ( like me cancelling my TV licence via e-mail. Oh! the physical cancellation paper to follow ).

Beyond my TV room, apparently there’s an ongoing trade dispute due to ‘old’ or outdated Informational Technology Agreement (ITA) whereby the ITA is obsolete due to problems with classification of new multifunctional digital devices (like the new digital TV). For old and still relevant news, do check out the report at egov. A pretty long winded article to report on a problem with classification of digital devices, not easy eh?

Will classification of data or ESI become a matter of dispute in the ediscovery space? So far, from the list supplied by Kroll Ontrack Inc. in their ‘Year In Review’ report (the US ediscovery landscape), classification issue is not on their top charts (yet).

I suspect the majority of blog readers/subscribers are aware that the platforms in the clouds such as facebook (e.g. the landmark case in Australia) and twitter (big companies using this to connect and tweet with their customers) are sources of ESI. As mobile technology gets more integrated with these clouds of information the ‘Future Year in Review’ list (like the list compiled by Kroll Ontrack Inc.) will not just be ‘process-oriented’ but also ‘platform-oriented’ or rather infrastructure related. No doubt the question of classification will emerge with the discoverable or reasonably accessible issues like the disputes around the obsolete ITA. It will be tweets against search criteria or algorithm. Now the 140 characters tweets or twitters are surely more accessible than the zillion of e-mails, right? Well…like I say classification sounds easy…

I will invade the twitter dome this year for some fun.

Just recently my friend, Martin (another ex-student of QM) pointed out another article in the International Journal of Arbitration, Mediation and Dispute Management, Vol 74, Number 1, February 2008 issue, the title; ‘Confronting the Matrix:Do the IBA Rules Require Amendment to Deal with the Challenges Posed by Electronically Stored Information? by Nicholas Tse and Natasha Peter.

As expected, the answer is a simple ‘yes, the IBA Rules require amendment’ (like the 1st article). The solutions though are not so simple. For me, the solutions are not within the IBA Rules. That’s another story.

Although the second article provided guidance from the English and US amendments and strategies for dealing with problems posed by ESI, the challenges posed by ESI for arbitrators and parties are still in the making or rather unconfronted.

Can one confront the Matrix and maintain a ‘flexible’ IBA Rules?

If you can distinguish ESI from RIM (just one area where IT and Legal terms are potential grounds for misunderstanding) and curious about whether one can truly predict the landscape for electronic discovery by examining (& predicting) the Record and Information Management arena (instead of landscape) try the online Record and Information Management (RIM) training.

I have not taken the online training as I much rather read my weekly horoscopes (& they’re free & with lots of nice pictures and dreamy words to lighten up my spirit).

If anyone has taken the online training, please do comment & share your views here.

Thanks!

It would be interesting to see what topics and/or papers will be generated.