What You Should Know About ediscovery

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1 KPMG FORENSIC What You Should Know About ediscovery By Pamela Quintero February 18, 2009

2 What Guidelines Are Available?

3 The Sedona Canada Principles Working Group 7 (WG7) The purpose and intent of the Sedona Canada principles are to: Provide guidance for discovery of electronic documents Create a platform for debate, refinement, and acceptance of conventions related to ediscovery Provide principle based guidance, and not rule based 2

4 Sedona Principles: Applicability To Which Cases are the Principles Applicable? The answer is: all civil litigation cases involving discovery of electronic information. There continues to be a misconception that e-discovery issues are mainly applicable to big law firms and large document cases, like class action suits. Electronically stored information is rapidly becoming a feature of even the most routine of civil cases as well as cases in family and criminal litigation. 3

5 Sedona Principles Principle #3 As soon as litigation is reasonably anticipated, parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information. The general obligation to preserve evidence extends to electronically stored information but must be balanced against the party s right to continue to manage its electronic information in an economically reasonable manner. 4

6 Sedona Principles Principle #4 Counsel and parties should meet and confer as soon as practicable, and on an ongoing basis, regarding the identification, preservation, collection, review and production of electronically stored information. Depending on the nature of the discovery project, preparation should include collecting information from people within the client organization. These people may include a business manager familiar with the operational areas involved in the litigation, someone familiar with the organization s records management protocols, and the IT manager familiar with the organization s network, and other systems. 5

7 Sedona Principles Principle #11 Sanctions should be considered by the court where a party will be materially prejudiced by another party s failure to meet any obligation to preserve, collect, review or produce electronically stored information. The party in default may avoid sanctions if it demonstrates the failure was not intentional or reckless. 6

8 What Rules Govern? What Court Rules Govern Electronic Document ( e-document ) Production in Canada? In Canada, the rules for documentary production are codified by each province s rules of civil procedure or rules of court. Ontario, BC, Alberta and Nova Scotia have published rules in the last few years. Alberta s rules are covered in Civil Practice Note 14: Guidelines for the Use of Technology in any Civil Litigation Matter Civil Practice Note 14 can be found at the following address: British Columbia s rules are covered in the Supreme Court s Practice Direction RE: Electronic Evidence which can be found at: 7

9 What is ediscovery? Electronic Discovery is the process of collecting, preparing, reviewing and producing electronically stored information (ESI) for issues where facts, people and organizations don t agree or where financial and other business related behavior may not comply with expectations. 8

10 Where does ESI exist? 9

11 Everywhere.. Where does ESI Exist? Removable Disks Voic Recycle Bin CD s & DVD s Solid State Storage Fax Machine Printer Tapes PDAs & Cell Phones Scanner IP Telephone Mainframes & Storage Servers PCs & Workstations Ipods/Mp3 players Copier Notebooks Building Access Cards 10

12 Why is it important to preserve electronic data? 11

13 Importance of Preservation Data can rapidly change Prevents potential spoliation Hard copies don t preserve all the information Metadata Temporary Files Comments and Formulas Unallocated and Slack Space Instant Messaging Logs 12

14 What is the ediscovery process? 13

15 E-Discovery Process The ediscovery Process Plan Collect Filter Process Review Produce A Thorough Suite of E-Discovery Products 14

16 E-Discovery Process Understand the information technology structure Establish parameters for each stage of the ediscovery process including capture, filtering, review, production Minimize disruption to the organization Assistance with meet and confer with opposing counsel 15

17 E-Discovery Process Image hard drives of custodian computers Conduct custodian questionnaires Extract information from network/ servers Image other storage media (CDs, PDAs,..) Backup tape restoration Secure and integrate hardcopy records 16

18 E-Discovery Process Elimination of non-reviewable information Filter by keywords, dates, custodians, file types Suppression of duplicates and near-duplicates 17

19 E-Discovery Process TIFF or PDF conversion Text extraction (allows documents to be searchable) Metadata extraction Processing of corrupt or password protected files Creation of load files (Summation, Concordance, others) 18

20 E-Discovery Process Secure data hosting via internet access Training using the review tools Responsiveness / privilege decisions Redactions, issue coding, bookmarks, annotations 19

21 E-Discovery Process Electronic productions CD/DVD/external hard drive Native files, TIFF images, PDF documents, extracted text and metadata Hardcopy productions Bates stamping Production histories 20

22 What are the goals of ediscovery? 21

23 Goals of Electronic Discovery Satisfy discovery obligations Identify documents that support or refute your position Maximize the efficiency and effectiveness of the document review process 22

24 Who are the key players in ediscovery? 23

25 Key Players Corporate counsel External counsel Records management personnel IT personnel Business leads Custodians Litigation management team Business leads/key decision makers External service providers 24

26 Assessing An Organization s Forensic Practice 25

27 Assessment Forensic Practice Familiar with best practices and guidelines Sedona Principles BC Practice Direction Electronic Data Reference Model (www.edrm.net) Methodology/Discovery Plan (on- and off-site) Equipment Write-block devices Various data sources Software Experience 26

28 What should you know about the costs associated with ediscovery? 27

29 Understand The Costs Understand the ediscovery process Determine the scope of the project Request Information Request Proposals Understand that costs will vary Fixed, Incentive, Strategic, Volume Based or Fee Based 28

30 Decisions That Influence Cost Custodian selection Media selection Filter selection De-duplication Converting data to TIFF or PDF for review Selection of review tools Determine what can be done in-house Determine if all phases of ediscovery is required Not seeking advice from the experts 29

31 What is the future of ediscovery? 30

32 Future of ediscovery Wider use of experts, consultants and specialized counsel Advanced technology in litigation support Faster response More data 31

33 Questions? Pamela Quintero Senior Manager KPMG Forensic

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