Massachusetts

Managing e-discovery and compliance: What would Eliot Spitzer do?

E-discovery - or electronic discovery - has many technical aspects. Questions of available tools, case law, regulations and scope are critical. One of the most important and often overlooked elements, however, is managing e-discovery and compliance.

As a senior manager at Putnam Investments, bizarre coincidences and convergence of fate with the soon-to-be famous marked my tenure. Few chapters embodied all these elements as thoroughly as the following e-discovery anecdote, for reasons that are obvious now, but were less so in 2003.

On Monday, Nov. 3, 2003, Putnam Investments fired its CEO, Larry Lasser, following a probe into market timing. Eliot Spitzer, New York’s attorney general, and William Galvin, the Massachusetts state regulator, had brought significant pressure to bear regarding market timing charges.

Spitzer, then known best as U.S. Attorney for the Southern District of New York, issued a subpoena two weeks later for Putnam documents. In the process, he indicated that criminal charges were being considered. From that day onward, senior managers at Putnam had a critical new IT project: managing e-discovery and compliance.

Unlike other IT projects, which include a feasibility analysis, budgeting and decision-making process prior to kickoff, e-discovery really starts from subpoena receipt. Spitzer’s reputation for a “take-no-prisoners” approach to investigations and prosecutions, not atypical for situations many firms face during litigation, had implications for IT.

From the moment a subpoena is received, senior technology managers should be called in. From IT’s viewpoint, e-discovery then becomes a new IT project on the list that requires reprioritization of existing resources.

The first step in managing e-discovery is to assign an IT project manager. Given that this will be a high-risk project, a seasoned individual is required. That means either hiring a backfill candidate for an existing project, or cancellation or delay of exiting work. E-discovery is usually a good example of a project that has no real, measurable ROI. This is a handy data point for all those IT projects that you, the IT manager, have to argue for each year during the budgeting process. That process demands an ROI even for operating system, database and other major software upgrades, which are also projects that evade calculating an ROI.

The next step in managing e-discovery is stakeholder and requirements identification. While vendor or tool selection usually comes later in the process, for a specialized project like e-discovery, identifying requirements should be fast-tracked from Day One. Firms and experts specializing in e-discovery are crucial for this type of project, which typically will be handled only once in a company’s lifetime – you’re lucky. Your staff is likely to lack experience with e-discovery, a reality best addressed by selecting an advisor immediately after selecting a project manager.

In the next post, I will address how to adapt standard project management techniques to the e-discovery project.

Questions? Write to editor@searchcompliance.com or reply to @SecuritySources on Twitter.

What will compliance with the Massachusetts data protection act mean?

A bill being discussed in the Massachusetts Senate proposes major changes to MA GL 93H, the Data Breach Notification Act. These changes could in turn result in revisions to 201 CMR 17.00, the data protection regulation promulgated by the Office of Consumer Affairs and Business Regulation (OCABR), including removal of specific encryption requirements and deference to federal statutes.

We wrote about it last week in “Mass. Senate seeks to amend, weaken data breach notification law.” As you know, we’ve been covering news on the nation’s most comprehensive data protection law since the beginning of the year, including a podcast with the OCABR CIO and general counsel:

•    Podcast: New Massachusetts data protection law mandates IT compliance
•    Panels describe risks of noncompliance with Mass. data protection law

Kevin Beaver, a contributor to SearchCompliance.com, offered his commentary on the situation nationally: “Are you out of the loop on state data breach notification laws?“

Sarah Cortes reminded the readers of SearchCompliance.com last week of  the risk of penalties for violating data privacy laws.

Anne McCrory, editorial director for the CIO/IT Strategy Media Group at TechTarget, also has rung in with her view: “It’s time for a federal data protection act,” following Scot Petersen’s take: “Red Flags Rule delay reveals troubling pattern developing.”

Our sister site, SearchSecurity.com, posted some additional advice:  Encrypt now to meet new Mass. data protection law.

So with all that out there, here’s what I’m wondering:

What do you think of the law?

What are your thoughts on the proposed revisions?

How are you approaching compliance with the regulation?

Do you have clients or partners that you are advising on the topic? What do they think?

I’ve been interviewing many of our readers on precisely these questions, including many thought leaders, CISOs, privacy officers and CIOs. I’d be grateful for your thoughts as well.

Please write to editor@SearchCompliance.com or directly to me at ahoward@techtarget.com.

As you know, you can also find us @ITCompliance on Twitter

How will the Massachusetts Data Protection Law affect IT compliance?

The Massachusetts Office of Consumer Affairs and Business Regulation established a significant new regulations in 2008, 201 CMR 17.00: Standards for The Protection of Personal Information. The strict new data protection law was set to take effect on January 1, 2009.

After the shift in the nation’s macroeconomic climate and strong resistance by state business leaders, however, the deadline for compliance with the basic provisions of the law was extended to May 1, 2009.

I’ll be traveling to Waltham to try to livestream the state’s public hearings on the legislation. Assuming that no technical difficulties occur in our use of uStream.com, you’ll be able to watch a webcast of the proceedings and ask question through the integrated chatroom. An archived version of the event will also be available for on-demand viewing.

We’re also preparing a podcast that will examines the new law from the perspective of a compliance software expert, a security expert and the Massachusetts Office of Consumer Affairs and Business Regulation MIS officer. You can expect the podcast to become available later this week.

Dr. John Halamka, CIO of CareGroup Health System and CIO/Dean for Technology at Harvard Medical School, provided some perspective on the relationship of the new MA data protection law to healthcare compliance on his blog.

UPDATE: Due to the expected 4-7″ of snow falling here in Massachusetts, the Greater Boston Network Users Group has cancelled today’s Q&A with David A. Murray, General Counsel and Gerry Young, CIO. Details are posted at the calendar at BNUG.org. We’ll update you when the next hearing is scheduled.