ESI Risk Assessment: Critical in Light of the new E-discovery and notification laws

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1 ESI Risk Assessment: Critical in Light of the new E-discovery and notification laws Scott Bailey, CISM Christopher Sobota, J.D. Enterprise Risk Management Group

2 Disclaimer This presentation is for informational purposes only and should not be construed as legal advice Be sure to consult your legal counsel regarding the implementation of any policies or procedures relating to electronically stored information, database security, or electronic discovery

3 IA, ITA and IT s Role Understanding E-Discovery rules and digital forensic procedures What to do if you are involved in the investigation Understanding your company s plan Verifying your company is following the plan (i.e. audit)

4 The Concept of Legal Discovery Discovery is the production of documents and things in the course of litigation through mandatory disclosures, inquiries, and other procedural requests between parties and other third parties that might have relevant information The goal of discovery is to obtain information leading to relevant admissible evidence

5 Electronic discovery State or Federal? Electronic discovery generally follows specific rules depending on the court: In Federal Court: Federal Rules of Civil Procedure (FRCP) addressing ESI effective 12/2006 In State Court: State court rules have been adopted or are proposed in most states These rules concern Electronically Stored Information (ESI) discovery procedures in litigation

6 Why Electronic Discovery? Electronic discovery exists because society has moved away from using paper records Most records are now electronically stored information Many organizations are now adopting the paperless office generating vast quantities of ESI

7 E-Discovery Reference Model Source:

8 Electronic Record Statistics Over 90% of business communication is done via electronic methods accounts for a vast majority of business communications Less than 3% of ESI will be converted to paper records

9 Where do you find ESI? Common ESI locations include: Desktop Computers / Home Computers Cellular Phones / PDAs Backup media and records Servers / Data warehouses Portable media including USB drives, smart cards, memory cards, compact flash cards Internal device memory Unified Messaging Systems

10 E-discovery As stated previously, the vast majority of records generated today are generated as ESI and other ESI will likely have to be produced in litigation, either by request or mandatory disclosure When litigation strikes, your organization must be prepared to respond to discovery requests timely and accurately

11 E-Discovery Why worry about this? Doesn t your Information Technology department have this covered? Most IT employees have no training in computer forensics, investigation, policy and procedure interpretations or chain of custody maintenance Many organizations fail to implement or enforce policies

12 Most Organizations are NOT ready Policies an organization should have: litigation hold policy document retention policy addressing ESI privacy policy Internet use policy use policy

13 What s The Danger? Your bottom line! Litigation involving electronic discovery can quickly cost your organization a lot of money The cost to respond to the electronic discovery request could easily be more than the cost of the amount in controversy in the litigation itself ESI that should have been destroyed by policy isn t destroyed this ESI is ripe for discovery and litigation

14 Settle cases to avoid E-discovery? A recent survey conducted by Pr- USA.net showed: 1 in 5 businesses have settled a lawsuit to avoid the cost of searching and recovering ESI Nearly half of the businesses stated they believed their legal teams could not respond timely to requests for relevant e- mails

15 Sanctions Examples Adverse instructions to the jury you can consider X s failure to produce the ESI as wrongdoing Paying the other side s attorney s fees and costs for having to bring a motion to compel production of the ESI Monetary fines to your corporation All of these sanctions harm your corporate image and cost you time and money

16 Forensics and ESI Forensics is defined as the process of collection, examination, analysis, and reporting When forensics is performed on digital equipment (i.e. computer), it is called digital forensics Used to find, recover and analyze electronically stored information (ESI) Digital forensics and high tech litigation are intertwined

17 Goals of Digital Forensics Support litigation Locating and securing potential ESI evidence Ensuring evidence can be admitted and authenticated (chain-of-custody) Failure to follow forensically sound procedures can spell disaster! Digital forensics can ultimately support or refute a matter in controversy

18 Forensic Examiner / Expert What kind of expert do you need Training, forensic certifications and technical certifications Confidentiality agreement Review their CV Ensure your expert has been qualified as an expert in other cases or has the proper qualifications to be qualified Written engagement letter Dealing with unrelated material Who should engage forensic examiner?

19 I Deleted It! Many people believe that deleting a file is the answer Deleted files can be recovered Deleted file contents could be used against you Never assume that because you have deleted a file that it is gone Formatting doesn t work either!

20 Common Mistakes Not seeking professional help in time Using own IT employees for investigation Not preserving potential evidence Not maintaining chain of custody information Self investigations Procrastination Not making the proper discovery requests Not analyzing all sources of potential ESI.

21 First Steps Contact your corporate counsel or outside legal counsel Place a litigation hold on all electronic records that you believe could be involved in the case Failure to request a litigation hold could cause important records to be destroyed within the ordinary course of business under an organizations document retention policy. (good for them, bad for you) Determine who should engage a digital forensic expert

22 First Steps (cont.) Secure potential sources of possible evidence Actions should be taken so the evidence cannot be changed Ask your forensic examiner to secure the evidence Special procedures must be followed for different devices Ensure you document everything that is done and the location of the evidence at all times to ensure a chain of custody

23 Information Needed by Examiner Legal counsel contact information Background information regarding the litigation Descriptions of computer systems: Hardware, software, operating systems Network diagram, remote connectivity, backups, logging, etc. Company policies: Document retention Litigation hold Acceptable Use Privacy

24 Information Needed by Examiner (cont.) system architecture Enterprise user applications Key individuals that could have information Information regarding people involved (user ID s, addresses, nicknames, etc.) Third party vendors involved with network or IT support Timeline of events Information being sought System/media to be examined Any other information

25 Database Security Why are we hearing about all of these database security breaches in the news? Database security breaches have been occurring since databases have been utilized New laws have mandated disclosure of database breaches

26 Conclusion Be prepared when you are asked Do policies and procedures exist? Are policies/procedures being followed? Storage Retention Security E-discovery audit program?

27 Thank You Presenters Scott A. Bailey, CISM Managing Principal, Enterprise Risk Management (248) office (248) cell Christopher Sobota, J.D., MSBIT Consultant Technology Risk Management (248) office

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