1 Digital Government Institute Managing E-Discovery for Government: Integrating Teams and Technology Larry Creech Program Manager Information Catalog Program Corporate Information Security Information Technology U.S. Postal Service Daniel Lim Senior Director Assistant General Counsel Guidance Software, Inc. E-Discovery, Records & Information Management Conference March 4, 2010 Washington, DC
2 Discussion Topics P A G E 1 Common misconceptions about E-Discovery requirements for Federal agencies Recommended ways to structure sustainable E-Discovery programs How to put together the right team of agency professionals that will impact implementation success Overview of the available tools and how to integrate technology types to meet specific requirements How a measure of knowledge and planning up-front will reduce risk and time-consuming future efforts Lessons learned Q&A
3 A 2004 Prediction: Zubulake V P A G E 2 Now that the key issues have been addressed and national standards are developing, parties and their counsel are fully on notice of their responsibility to preserve and produce electronically stored information. * * * This Court, for one, is optimistic that with the guidance now provided it will not be necessary to spend this amount of time again. It is hoped that counsel will heed the guidance provided by these resources and will work to ensure that preservation, production and spoliation issues are limited, if not eliminated.
4 P A G E 3 First Things First A Dose of Reality
5 Six Years Later: Pension Committee P A G E 4 Once again, I have been compelled to closely review the discovery efforts of parties in a litigation, and once again have found that those efforts were flawed.... By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records paper or electronic and to search in the right places for those records, will inevitably result in the spoliation of evidence.... This case does not present any egregious examples of litigants purposefully destroying evidence.
6 Factors for gross negligence Pension Benefit P A G E 5 failed to institute a timely written litigation hold failed to collect or preserve any electronic documents prior to 2007 continued to delete electronic documents after the duty to preserve arose did not request documents from key players delegated search efforts without any supervision from management destroyed backup data potentially containing responsive documents of key players that were not otherwise available submitted misleading or inaccurate declarations
7 A Dose of Reality: A Few Common Myths P A G E 6 SOME COMMON MYTHS: Federal entities must now keep every FALSE Federal entities must use archiving FALSE Federal entities must organize their data in a particular way FALSE Federal entities must map their systems FALSE The Rules Changed the Duty to Preserve FALSE The Rules Made Electronic Data Discoverable FALSE
8 A Dose of Reality: Understanding Requirements P A G E 7 What is Required by the Rules? Preservation; Form of production of your ESI; Be able to produce in an agreed upon form or one that is reasonably useable.
9 A Dose of Reality: Understanding Requirements P A G E 8 What are the Practical Implications of the Rules? UNDERSTAND: Need to understand your systems to engage in discussion with opponent; PRESERVE: Need to understand your systems to properly preserve ESI when the need arises; MANAGE A GROWING RISK/COST: Need to develop efficiencies in the method by which you will identify, preserve, review and ultimately produce ESI.
10 A Dose of Reality: Incredible Flexibility P A G E 9 GROW what makes sense for your organization. It Depends On: Litigation profile; How OGC / DOJ is utilized; Internal legal resources; Internal IT resources; General setup of IT systems.
11 Wellness Check: Where are you today? Solution to Conduct Forensically Sound Collection, Preservation & Processing P A G E 10 IN ORDER OF IMPORTANCE Understanding Where Your Data Is and When it Gets Destroyed Establish an ediscovery Department. This is NOT ad hoc work. Strategic Management of ediscovery Knowledge Advanced Planning on Litigation Positions Outside Vendor and Attorney Management
12 Current Issues P A G E 11 Ad Hoc ESI Search and Collection Processes Most OGC Can Point To A Process That Is Defensible. Issue Now Is Streamlining / Improving Efficiencies Self-Collection / Collect and Preserve in Every Case???? Coordination Between Legal & Technology Key Word v. Concept Searching FRE 502 Privilege Considerations
13 Recent Government Cases: Aguilar v. ICE / DHS 2008 WL (S.D.N.Y. Nov. 21, 2008) Changes in Sedona Conference Principle default was no obligation to produce 2007 production should be made in the form in which information is ordinarily maintained or reasonably usable, taking into account the need to produce reasonably accessible metadata that enables the receiving party the same ability to access, search, and display information as the producing party Emphasis on accessibility and functionality Rule 26 Note to Rule 34 - If ESI is ordinarily stored in searchable format, it should not be produced in a form that removes or significantly degrades this feature. Case Law Courts generally have ordered the production of metadata when it is sought in the initial document request.... Emphasis On A Party-Oriented Process Sedona Conference Cooperation Proclamation P A G E 12
14 Recent Government Cases: SEC v. Collins & Aikman Corp. P A G E WL (S.D.N.Y. Jan ) Cannot just make a blanket refusal to produce s No showing of any attempt to negotiate search protocol Ability to search and review viewed as a routine aspect of modern discovery Cost of a search is too high argument an effort must be made to document the cost or likelihood that a search would produce relevant, non-privileged material. The concept of sampling to test both the cost and the yield is now part of the mainstream approach to electronic discovery.
15 P A G E 14 Picking the Right Team
16 Structuring Sustainable E-Discovery Programs Internal Resources P A G E 15 Centralized Control of Cases De-Centralized Control of Cases External Resources
17 Picking the Right Team: Defining Roles P A G E 16 Primary Members: Internal ediscovery Coordinator Internal IT Liaison OGC - ediscovery Counsel
18 A Few Notes on the Internal ediscovery Coordinator P A G E 17 Internal ediscovery Coordinator: Involvement in Litigation (not just policy but how it is implemented); Sufficiently Senior to Effectuate Change; Some litigation & IT savvy.
19 A Few Notes on the Internal IT Liaison P A G E 18 Internal IT Liaison : Fact Witness & 30B6 Certifications Deposition Prep. Aid in Policy Development & New Technology
20 A Few Notes on the ediscovery Counsel P A G E 19 External ediscovery Counsel: Allows you to have a uniform voice across cases; Potential for Significant Cost Savings; Aid in Policy Development; Recognition of the Specialized Nature of this area (legally and technically)
21 Overview of Approaches and Technologies P A G E 20
22 Current Technologies and Approaches P A G E 21 Self-Collection Litigation Hold Search and Collection Enterprise Content Management Systems Archive & Search Tools Data Collection & Service Providers Data Processing Tools / Data Analytics ESI Management and Review Tools Case Management Tools
23 P A G E 22 Managing ediscovery Issues: Best Practices
24 Preservation Obligation P A G E 23 The duty to preserve ESI BEGINS when you reasonably anticipate litigation, for EVERY case. First decision Is this a case, yet? Next - Scope and Method WHAT needs to be preserved? HOW should it be preserved? Key Consideration - Accessibility Difference between what needs to be PRESERVED and what needs to be REVIEWED AND PRODUCED Tiered approach
25 Sedona Conference Recommendations Not about Perfect Searches P A G E 24 Practice Point 5 The use of search and information retrieval tools does not guarantee that all responsive documents will be identified in a large data collections.... [T]here is no requirement that perfect searches will occur only that lawyers and parties act reasonably in good faith performance of their discovery and legal obligations. - Sedona Best Practices Commentary On the Use of Search and Information Retrieval Methods in E-Discovery, Sedona Conference Journal, Vol. 8, Fall 2007 Principle 11 [a] responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to contain relevant information. - The Sedona Principles, Second Edition (2007)
26 E-Discovery Recommendations Reversal of the EDRM Model START with an eye towards what is to be presented at trial Assume You HAVE To Preserve In Every Case NOT Collecting Everything IS Defensible (and Cost Effective) With The Right Approach and Technology Don t Be Guided By Fear Of The Unknown Issue driving decisions uncertainty about environment Use Early Case Assessment capabilities Attorney Diligence Find Out What The Client Has OGC Needs To LEAD The Cause For Cooperation OGC Needs to Have ACTIVE Involvement in Implementing And Improving ESI Collection and Preservation Practices IT, Info Sec, Legal, RM ALL need to be involved Stay Informed on Current Standards P A G E 25
27 Case Study: Government Collection P A G E 26 Situation Large federal entity facing several class action lawsuits Almost 800 custodians across multiple locations Collected all user-created files with date filters and keywords using full Boolean search criteria De-duplication and rolling deliverables after the processing stage Solution Collection and secondary culling from multiple sites all completed on-site in a secure environment Only 8 GSI staff needed to execute the collection 146 TBs scanned in less than 2 months Results Collected 17 TBs utilizing upfront filtering Processed the data to approximately 7 TB shipped with content searching and deduplication.
28 QUESTIONS? P A G E 27
29 Contact Us P A G E 28 Daniel Lim Senior Director Assistant General Counsel Guidance Software, Inc Larry Creech Program Manager Corporate Information Security U.S. Postal Service