Emerging Legal Hold Practices Under the New Electronically Stored Information (ESI) Rules

Transcription

1 CGOC Legal Holds Luncheon Emerging Legal Hold Practices Under the New Electronically Stored Information (ESI) Rules Thomas A. Lidbury Litigation Partner Mayer, Brown, Rowe & Maw

2 Do I Need An ESI Discovery Program? YES

3 Risks Are Too High To Ignore Zubulake v. UBS Warburg 2004 WL (S.D.N.Y.) U.S. v. Philip Morris USA 327 F.Supp.2d 21, 26 (D.D.C. 2004) In re Intel Microprocessor Antitrust Litigation (D.Del. 2007) In re NTL Securities Litigation 2007 WL (S.D.N.Y.)

4 Case Law Requires Affirmative Steps Zubulake v. UBS Warburg 2004 WL (S.D.N.Y.) Typical legal hold notice; little follow up Adverse inference costs $26 million it is not sufficient to notify all employees of a litigation hold Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched

5 Case Law Requires Affirmative Steps ESI Amendments Codify Zubulake holding that affirmative steps are required for preserving ESI Protection from sanctions for routine, good faith operation of systems But comments explain good faith may require intervention in routine operations Need plan of action to intervene promptly

6 Amendments Require Early ESI Disclosures Must disclose ESI preservation issues at outset Rule 26(f) Initial Meet and Confer Must confer on any issues relating to preserving discoverable information Must confer on any issues relating to disclosure or discovery of ESI Rule 16 Initial Hearing Must advise judge of any ESI issues at initial hearing Court s initial scheduling order may include provisions for disclosure or discovery of electronically stored information

7 Amendments Force Transparency Must disclose limits on discovery efforts Litigants have traditionally limited internal evidence searches to reasonable efforts Now litigants must disclose such limits Must disclose ESI that is potentially relevant but that is not being searched because it is not reasonably accessible Even absent inquiry from adversary Transparency raises stakes on legacy data

8 Not Just For Big Cases Size and complexity may impact the scope of evidence to preserve and produce But the duty to preserve applies

9 Ok ay -- so wh s ho a t af uld firm I ta a ti v k e? e s t ep s

10 Information Systems Landscape Determine active retention profiles & backup schedules & IM Servers File Servers Application Servers Identify legacy data Phone Systems Other systems

11 Tighten Up Backup Recycling Backup recycling < 30 days 30 days more than sufficient for disaster recovery Prohibit longer retention absent GC sign off Old backups: Defeat records management policy More likely to have unique ESI for holds and discovery Get on track going forward Deal with legacy backups later

12 Transitioning Employees & Systems Establish process for checking legal holds for Transitioning employees Desktop/laptop retirement and upgrades Systems retirement and upgrades Set retention policies for applications/databases Require ability to retain data for holds Require IS supported applications to be tracked

13 Standard IS Disclosure Scope determined by need to identify and resolve preservation issues Retention profiles for active systems Backup schedules What is NOT being done to preserve evidence Legacy data that won t be searched Don t detail specific data unless it is relevant and won t be preserved Investigate and preserve case-by-case Build systems map as you go

14 Written Legal Hold Protocols Promptly serve IS disclosure Promptly issue legal holds Follow up to identify Shared drive data Data key employees can t control Other key employees & 3rd parties Capture ESI of key employees Investigate & preserve other ESI

15 Systems and Support Resources should be in place to promptly implement legal hold protocols Turn off auto-deletion functions Turn on journaling or IM logging Suspend backup recycling (in rare cases) Capture ESI of key employees Preserve other systems Track and validate compliance

16 Journaling & IM Logging Captures /im for selected employees Useful for cases in which ongoing operations are relevant, not just historical operations Superior to retaining server backups No gaps as with backups No redundancy as with backups No company-wide scope as with backups No accessibility/searchability problems

17 Enterprise ESI Collection Tool Capability to search and collect targeted data over the network Forensically sound collection Audit trail Scalable from full forensic image to single file and all points in between

18 Legal Hold Management Tool Capability to issue and manage legal hold notices and ESI collections Manage all aspects of issuing legal holds Manage all aspects of ESI collection Track all aspects of process for future defense of process

19 Legacy Data Remediate Or disclose and resist forever Potentially large costs to both options

20 Questions?