Sean Byrne Head of ediscovery Solutions Michael Lappin Director of Archiving Technology

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1 Sean Byrne Head of ediscovery Solutions Michael Lappin Director of Archiving Technology

2 ediscovery for Legacy Archives

3 Today s Panel Michael Lappin Director of Archiving Technology Nuix Therese Craparo Counsel Reed Smith Stephen Stewart Chief Technology Officer Nuix July 30, 2015 COPYRIGHT NUIX

4 Agenda Introduction What is an archive? Relevant case law and rules affecting archive discovery Archive-related ediscovery challenges Archive collection with Nuix Migration technology Case studies Questions? July 30, 2015 COPYRIGHT NUIX

5 What is an archive? A disk-based repository of aging (aka legacy) data that: Is moved from active inbox and indexed or search and retention purposes Has retention rules /an expiration date for all contents Is stored in a proprietary format Is NOT generally a back-up or used for DR/BC purposes Is often used for regulatory retention purposes Typically offers add-on ediscovery tools (although mileage can vary) July 30, 2015 COPYRIGHT NUIX

6 Archiving Benefits July 30, 2015 COPYRIGHT NUIX

7 Poll 1: In your current role do you: July 30, 2015 COPYRIGHT NUIX

8 Discovery of Legacy Archives ESI is subject to the test of undue burden Does the cost and difficulty of collecting ESI create an undue burden to do so? Is the data stored in outmoded format or otherwise "inaccessible"? Is it proportional to the matter at hand? What is reasonable? July 30, 2015 COPYRIGHT NUIX

9 Common Weaknesses When Arguing For / Against Burden Lack of specificity Lack of legal precedent (most discovery disputes resolved without a written opinion) Burden arguments are not typically effective when your client is a target of a law enforcement investigation o As the FTC s Bureau of Competition has stated, in some cases the search of even a small portion of the parties archive and backup systems produces valuable information that is helpful to the staff s investigation." July 30, 2015 COPYRIGHT NUIX

10 Making a Burden Argument Tell a simple, straightforward story supported by facts Describe ESI sources relevant to the discovery request # of physical sources - workstation(s), laptop(s), mobile device(s), server(s), cloud server(s), archive(s), etc. Provide detailed breakdown of estimated costs to collect from each one This will usually show that workstations and servers are much less expensive to collect from than, say, legacy archives July 30, 2015 COPYRIGHT NUIX

11 Making a Burden Argument (cont.) Provide detailed breakdown of estimated costs to process ESI Discuss volume of duplicative information in archive and small % of unique data Provide detailed breakdown of estimated costs to review filtered ESI Bring an expert to explain why procedures outlined in estimate are required to complete task and help court understand nuances Offer an alternative way of obtaining substantially the same information July 30, 2015 COPYRIGHT NUIX

12 Must Establish Good Cause Thermal Design v. Guardian Building Products, 2011 WL (E.D.Wis. Apr. 20, 2011) (Randa, J.) After receiving 1.46 million pages (91 GB) of ESI, the Plaintiff requested that the Defendants search all archived accounts and shared network drives without narrowing the scope by custodian. The Defendants demonstrated that this ESI was not reasonably accessible as it would have taken several months and an additional $1.9 million dollars to meet this request. The Plaintiff s argument that the Defendants had considerable resources was not enough to establish good cause under the Rules in large part because the Plaintiff did not explain how the importance of the extensive amount of information sought would have justified imposing an extreme burden on the Defendants. July 30, 2015 COPYRIGHT NUIX

13 Be Prepared to Split Costs Clean Harbors Environmental Services v. ESIS, 2011 WL (N.D.Ill. May 17, 2011) (Cox, M.J.) The Court performed a thorough analysis of cost-shifting factors at the Plaintiff s request and ultimately split amongst the parties the cost of backup tape restoration and search. In addition to the eight Wiginton (N.D. Ill. 2004) factors, the Court noted that analysis of the parties negotiations regarding cost sharing was perhaps more important as courts are always encouraging parties to cooperate and work together to come to agreements before coming into court. July 30, 2015 COPYRIGHT NUIX

14 8 Factor Test (1) the specificity of the discovery requests; (2) the likelihood of discovering critical information; (3) the availability of such information from other sources; (4) the purposes for which the responding party maintains the requested data; (5) the relative benefit to the parties of obtaining the information; (6) the total cost associated with production; (7) the relative ability of each party to control costs and its incentive to do so; and (8) the resources available to each party. July 30, 2015 COPYRIGHT NUIX

15 The Standard is Reasonableness, Not Completeness In re Plasma-Derivative Protein Therapies Antitrust Litigation v. CLS Limited, et al., 2013 WL (N.D. Ill. Mar.4, 2013) (Keys, M. J.) The Court denied the Plaintiff s request to order defendant to recover all documents, including backup tapes, deleted by three particular custodians providing, in part, that [r]easonable preservation efforts do not require a potential litigation to preserve every single scrap of paper in its business. July 30, 2015 COPYRIGHT NUIX

16 Defeating a Burden Argument Challenge estimates of time, difficulty, cost Point out generalized statements of cost that lack detail Use an expert Point to retention/spoliation issues Ex. argue that scope of discovery should be expanded to legacy archives as only potential source of particular data July 30, 2015 COPYRIGHT NUIX

17 The Evolution of Technology ediscovery tech and processes generally evolve to make access less burdensome Once, was considered "inaccessible" Now, such an argument would be ridiculous and would likely draw sanctions How do you track the improvement in technology? At what point does it cease to be an undue burden to collect and preserve specific sources? One or two well prepared parties or a high profile case can shift the landscape seemingly overnight July 30, 2015 COPYRIGHT NUIX

18 Poll 2: In your experiences, what technologies do you think currently bring undue burden on discovery? July 30, 2015 COPYRIGHT NUIX

19 Archiving Challenges

20 Poll 3: Have you experienced the challenges of doing discovery from massive archives before? If so, what issues were you already aware of? July 30, 2015 COPYRIGHT NUIX

21 Other issues

22 Impact on ediscovery from Technical Standpoint APIs cause bottlenecks that slow data extraction to a crawl Poor search tools make in-place searching difficult Corrupted Indexes Cannot trust search results Searches can run slow Cannot know for certain that you ve extracted everything Lack of warning signs July 30, 2015 COPYRIGHT NUIX

23 Case Studies Well known hospital/healthcare system Company Profile Hospital Based in Mid West, USA Environment Legacy Repository: EMC Xtender Legacy Size: 200 TB (1.5 Billion s) Target Repository: Office 365 Impact They had fallen behind on ediscovery production deadlines substantially. The single ediscovery server would take weeks to run a simple search over several hundred archives Several large active matters brought their legal team to a grinding halt Massive 3 rd party subpoena burden Environment: Lotus Notes July 30, 2015 COPYRIGHT NUIX

24 Case Studies Multinational apparel company Company Profile Footwear and apparel company Based in NW, USA Environment Legacy Repository: AXSONE Legacy Size: 40 TB Target Repository: Office 365 Impact Many larger searches would crash the archive servers or takes weeks to complete. Other searches would simply "time out" days into a search leaving the legal team to restart the search from the beginning The sheer size (40 TB) of the archive coupled with the lack of robust searching (nothing more than keywords and names were allowed) prohibited the legal team from completing their work Heavy ediscovery profile Environment: Exchange July 30, 2015 COPYRIGHT NUIX

25 Case Studies Two companies Company Profile Agricultural company and a hospital Based in Austria and California Disaster Recovery Incident Environment Legacy Repository: Enterprise Vault Legacy Size: 3 & 12 TB Target Repository: None Environment: Exchange Impact Discovered that their archive's databases had been lost due to an accidental deletion. Wherein they were able to search their relatively small 3 terabyte archive they were unable to produce any data out of the system and utilize it in ediscovery matters. When they selected the items to export out of the system as being relevant to a matter, the system would return errors and say the data was missing from its original location. In reality, the raw data was still there. July 30, 2015 COPYRIGHT NUIX

26 Questions? July 30, 2015 COPYRIGHT NUIX

27 FIND OUT MORE: nuix.com twitter.com/nuix facebook.com/nuixsoftware linkedin.com/company/nuix youtube.com/nuixsoftware nuix.com/blog July 30, 2015 COPYRIGHT NUIX

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