Technical Evidence Management Theory: The early application of technology to reduce dispute resolution costs

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1 Technical Evidence Management Theory: The early application of technology to reduce dispute resolution costs

2 Today s topics 1. Technical Evidence Management Theory 2. Enterprise Archiving to Reduce Costs 3. Four (4) Stages and Tools from Archival to Production 4. The Evidence Factory 5. Worst Case Study 6. Cost Comparisons & TEMT Proof 7. Calculating the TCOL 8. TEMT and Fixed Fee Engagements

3 TEMT Defined: The earlier and more appropriately technology is applied in litigation, the lower the ultimate litigation costs and greater control of evidentiary materials will be achieved.

4 TEMT in Practice: TEMT can be employed to model the overall cost of any given litigation and provide key risk assessment information.

5 Enterprise Archiving a Case Study Reducing the length of time and amount of ESI kept by the bank produced material cost savings. 03/2010 Gartner Study ID Number: G documents bank s creation of an enterprise information archiving solution to address compliance and storage capacity optimization requirements.

6 Enterprise Archiving A Central Repository Bank created a centralized repository for all enterprise s and loose files Meets knowledge management needs Meets compliance team s needs Required for electronic discovery and auditing needs Divided by Department and User Shares Facilitates quickest definition of Evidence Map

7 Enterprise Archiving Policy and Results Bank s archive policy designed to eliminate unnecessary ESI e.g. any Microsoft Office files more than two weeks old are archived, and graphics and media files are archived immediately, on a daily basis due to their large sizes. Reduced overall and loose file storage needs by 60-76%. Maintaining the smallest ESI population acceptable = lowest enterprise and dispute solution costs.

8 The Evidence Factory The enterprise evidence control operation responsible for ESI related dispute resolution cost control. TEMT techniques used to measure total costs of disputes and ROI for technology investments. Required Tools: Stages 1-4 tools, one each, plus related hardware Required Direct Personnel: Factory Head Project Manager(s) Data Analyst(s) Required Indirect Support: IT specialist Accounting/operations specialist

9

10 KNOWLEDGE MANAGEMENT Litigation Hold Compliance Hold KM IDENTIFICATION AND MAINTENTANCE TOOL ESI FILTERING TOOL ESI REVIEW TOOL ESI PRODUCTION TOOL EVIDENCE PRODUCED TO OUTSIDE

11 Four (4) Stages and Tools from Archival to Production STAGE 1: Knowledge Management identification and maintenance tool Symantec s Enterprise Vault and Iron Mountain s Mimosa system can index and identify ESI for SIS archiving TRIGGERING EVENT = TIME TO DEFINE/ IDENTIFY THE EVIDENCE MAP STAGE 2: ESI filtering tool to separate by custodian, date, concept, and relevance to dispute (non-responsive, pot. responsive, privileged) EnCase Enterprise, Kazeon and Clearwell STAGE 3: ESI Review tools to finalize responsive production population KCura s Relativity, Catalyst CR and iconnect. STAGE 4: ESI Production tool convert responsive ESI subset to Rule 26(f) ESI protocol production format IPRO, LexisNexis LAW

12 The Evidence Map: Triggering event begins duty to identify and preserve ESI for litigation hold: Structured data accounting databases Loose Files Laptop/desktop Blackberries Loose Media Archive tapes Web based ESI

13 International Corporation Worst Case Study We will do it ourselves to save money Corporate client using Microsoft Exchange, begins with 36GB of s and an $30,000 estimate from 3 rd party vendor. To save money corporation has own two internal IT staff work through the weekend to search their exchange server for s responsive to 100+ Key Words. Ends up with 136GB of responsive s as Exchange cannot de-duplicate search results.

14 International Corporation Worst Case Study We will do it ourselves to save money 136GB of responsive s now cost $90,000 to have 3 rd party vendor process compared to the earlier $30,000 estimate. What happened to the savings? Corporate IT generally does not understand or have tools to measure cost benefit of evidence factory investment. Stretched IT budgets often lead to use of wrong tool(s) and most costly solution.

15 Using TEMT to measure different approaches Evidence Factory for internal collection and filtering of ESI 3 rd Party collection of ESI followed by external forensic tool filtering

16 Corporate Evidence Factory Approach Evidence internally indentified and collected using EnCase Enterprise Internal and outside counsel filtering for relevance (privileged / non-responsive / potentially responsive) in Clearwell Potentially responsive ESI is converted to TIFF images by 3 rd party or outside counsel and loaded to external review platform. Final production subset is created and produced.

17 3 rd Party Collection followed by traditional filtering 3 rd Party collection followed by forensic tools to filter for user files 3 rd Party filtering of collected ESI by user files, key word, date range, and deduplication per 26(f) agreement Responsive subset is converted to native file format for responsiveness review in Relativity at 3 rd party. Production subset is converted to TIFF images including Bates numbering, redactions and final review for production per 26(f) ESI protocol specifications.

18 Cost Comparisons: Corporate Evidence Factory Approach Service Quantity Price 3 rd Party Total EnCase Enterprise identification of 50 Custodian s ESI Clearwell Filtering of Custodial data Provided to Outside Counsel for Review 1.5TB $250,000/year $250, GB $150,000/year $150, GB $300/GB $7, Hosting for 1 Year 25GB x 12 Mos. $30/GB $9, First Pass Review 75,000 docs $50/hour $37, Production Set Creation 7,500 docs / 3GB $800/GB $2, ESTIMATEDTOTAL: $456,400.00

19 Cost Comparisons: 3 rd Party Forensic Collection Service Quantity Price 3 rd PartyTotal Interview through Forensic preservation 50 Custodians data Forensic Filtering of Custodial data 1.5TB $900/Custodian $45, GB $125/GB $62, Processing for Native Review 50GB $300/GB $15, Hosting for 1 Year 50GB x 12 Mos. $30/GB $18, First Pass Attorney Review 350,000 docs $50/hour $175, Production Set Creation 3,000 docs / 1GB $800/GB $ ESTIMATEDTOTAL: $316,300.00

20 Leveraging TEMT for Fixed Fee Success Corporations are demanding fixed fee legal services for dispute resolution. TEMT proves that the early, appropriate application of technology is the only way to remain within a fixed fee budget. Outside counsel must use TEMT to insure that there is money left for substantial legal work after first pass review.

21 Fixed Fee Leveraging Technology Approach Service Quantity Price 3 rd Party Total Clearwell processing of Custodial data Potentially Responsive / Nonresponsive triage by outside counsel Final responsiveness review by outside counsel 500GB $350/GB $175, GB $500/hour x 200 hours $100, GB $500/hour x 1,750 hours $875, ESTIMATEDTOTAL: $1,150,000.00

22 Fixed Fee Without Technology Approach Service Quantity Price 3 rd Party Total First pass review by contract attorneys Final responsiveness review by outside counsel 500GB $50/hour x 35,000 hours $1,750, GB $500/hour x 1,750 hours $875, ESTIMATEDTOTAL: $2,625,000.00

23 Clearwell technology demonstration Three way filtering of ESI to defensibly and transparently reduce collection: 1) Non-responsive 2) Potentially Privileged 3) Potentially Responsive Transparent search Discussion threading Concept identification

24 Calculating the Total Cost of Litigation (TCOL) Total cost of a given litigation is not infinite Therefore, a given case s TCOL may be calculated by accounting for all evidentiary, human, software, and hardware costs. Universal evidence model (UEM) represents all evidence related to a given case, and the related costs generated as a result of said evidence.

25 Achieving Greater Control of the Evidence Risk Assessment Find out bad news sooner Clear evidence of willful internal patent infringement and worse. Wall Street Journal worthy employee misconduct. Find out good news sooner Patent infringement defense turns into theft of trade secrets counter claim.

26 Thank You Larry Lieb, National Director

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