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1 Anti-Fraud Analytics and Electronic Discovery: Bridging the gap between Legal, IT and Audit IIA and ISACA Orange County Chapters March 11, 2013 Matthew L. Miller, Esq.

2 Fraud An Expensive Issue Barclays was fined 290m by for its role in the Libor fixing scandal (The Guardian, August 29, 2012) GlaxoSmithKline to pay $3 Billion in fines for criminal and civil violations involving 10 drugs (NY Daily News, July 3, 2012) US Expands Probe Of Lilly's Compliance With Anti-bribery Law (The Wall Street Journal, February 23,2010) Alcatel to Pay $137 Million to Avoid US Prosecution (Business Week, February 18, 2010) Stanford convicted and sent to jail for $7 Billion fraud case (Boston Globe, June 29, 2009) Halliburton to Pay $559 Million To Settle Bribery Investigation (The Wall Street Journal, January 27, 2009) Bribery Case Will Cost Siemens $1.6 Billion (The New York Times, December 16, 2008) Page 2

3 Current environment The perfect storm for fraud & business corruption Companies are downsizing and decentralized which has an immediate effect on internal controls Opportunity Budgets are decreasing. Companies and organizations are doing more with less. Large construction and vendor project relationships Market levels remain low Opportunity to Commit Fraud Stressed and disaffected employees may have greater ability to rationalize improper actions Regulatory focus increased at State and Federal level Pressure Internal and External Pressure Internal Controls Rationalization Page 3

4 The Fraud Tree Risk areas Asset Misappropriation Corruption / FCPA Financial Misstatement Cash Disbursements Cash Larceny Fake Vendors General Ledger Materials Management & Inventory Control Purchase Order Management Salaries & Payroll Fraud Theft of Assets Inventory/ Accounts Receivable / Fixed Assets Travel & Expenses Fraud Vendor Management Payment Cards Bid-Rigging Bribery Charity Payments Conflicts of Interest Contract Compliance Customs Payments Gifts & Entertainment Government Customers Illegal Gratuities Kickbacks Payments to Agents Petty Cash Procurement Rigging Accounts Payable Account Receivable Deposits GAAP General Ledger Non-financial Reserves Analysis Revenue Recognition Sales Analysis Page 4

5 What is impact for the three types of Fraud Types of Fraud Category Description Examples % of all cases* Average Loss Asset Misappropriation Schemes in which the perpetrator steals or misuses an organization s resources. Fraudulent invoicing Payroll fraud Skimming cash receipts Forging company checks 86.7% $120,000 Corruption Schemes involve the employee s use of their influence in a way that violates his or her duty to the employer for themselves or someone else. Accepting or paying a bribe Extortion Undisclosed conflict of interest 33.4% $250,000 Fraudulent Statement Fraud Schemes involving the intentional misstatement or omission of material information in the financial reports. Booking fictitious sales Recording expenses in the wrong period Concealing liabilities 7.6% $1,000,000 Source: ACFE Report to the Nation 2012 *sum of %s in this chart exceeds 100% because several cases involved schemes from more than one category Page 5

6 Page 6

7 Components of an effective anti-fraud and compliance program Assess Improve Code of Ethics Setting the ProperTone Corruption & Fraud Prevention Policies Communication and Training Risk Assessment Proactive Analytics/ Controls/ Monitoring Reactive Incident Response Plan Monitor Communicate Action Action Action Action Action Action Action Develop A detailed Anti-corruption work program Raise awareness and understanding of corruption risks and laws Conduct a Corruption risk assessment Continuous Monitor effectiveness of Corruption controls through analytics Review results and develop action plan to address FCPA /corruption issues Respond to incidents and alegations ofbribery and corruption Communicate To Stakeholders Page 7

8 How is fraud detected? 50.3 % by tip or accident! *ACFE 2008 Report to the Nation On Occupational Fraud Source: ACFE Report to the Nation 2012 Page 8

9 Who is reporting fraud? *ACFE 2008 Report to the Nation On Occupational Fraud Source: ACFE Report to the Nation 2012 Page 9

10 Page 10

11 Is your sample seeing the picture? Page 11

12 Data sources Selected examples Unstructured Data Instant Messages Text/Mobile Device Messages Phone Records Social Media Trade Press and Commentary Structured Data Financial Records T&E Claims Data Purchase Orders Inventory Records Employee and Vendor Lists Public Databases Page 12

13 Data Mining: Techniques Unstructured Emotive Tone Analysis Document Classification Topic Modeling Concept Induction Fact Pattern Analysis Social Network and Actor Analysis Predictive Modeling Structured Data Fraud Scenario Tests Temporal Analysis Anomaly Detection Cluster Analysis Integrated Predictive Modeling Transaction Analytics Behavior Modeling Page 13

14 Forensic analytics maturity model Beyond traditional rules-based queries consider all four quadrants Low Detection Rate High Structured Data Matching, Grouping, Ordering, Joining, Filtering Traditional rules-based Queries & Analytics Anomaly Detection, Clustering Risk Ranking Statistical-Based Analysis Unstructured Data Keyword Search Traditional Keyword Searching Data visualization, Drill-down into data, Text Mining Data Visualization & Text Mining High False Positive Rate Low Page 14

15 Finding hidden money Duplicative / split payment analysis Different Vendor ID Same Date Exact Same Amount Different Invoice # Same Reference / Job Code Similar names Some with same address Page 15

16 Vendor / employee conflicts of interest Vendor Master and Employee Master should not overlap. Analysis of phone numbers and fuzzy address matches. Page 16

17 Transaction Risk Scoring Review breaches on targeted analytics Filter by selected analytics Page 17

18 Apply various weightings to each test Based on case specific relevance (e.g., scale of 1 to 3 importance) Adjust weightings for analytics per relevance criterion Page 18

19 Who calls it bribe expense? Page 19

20 Keyword Search Summary Analyze Keyword Hits by Term, Custodian and Date Analyze effectiveness of keywords. Understand the effect of keyword hits by custodian and timeframe to prioritize review and analyze keyword hits. Page 20

21 Text Mining: Disbursements Analysis Page 21

22 Anti-Bribery & Corruption Analytics Who said what, where and how much? Page 22

23 Travel & entertainment Who entertained whom, where, what for and for how much? Page 23

24 Communication Analytics Who ed whom, when, what and why? WHO ` WHAT WHEN WHY SocialN etw orking Concept Clustering Com m unication Over Tim e Sentiment Analysis Who is talking to whom? about what? over which time period? how do they feel? People-to-people analysis Top words mentioned When communications occur Positive vs. Negative Sentiment Entity-to-entity analysis Map communication lines to organization chart Key concepts / topics Top or unusual dollar amounts Sensitive words / phrases Communication spikes around key business events Top 10 negative journal entries Top 10 angry s Top 10 most concerned s Customer survey analysis Employee survey analysis Page 24

25 New Research: Fraud Triangle Analytics Page 25

26 The Fraud Triangle* Applying theory to electronic communications * Donald R. Cressey's Fraud Triangle ; Incentive/Pressure, Opportunity and Rationalization are present when fraud exists. 1.nald R. Cressey's Fraud Triangle ; Incentive/Pressure, Opportunity and Rationalization are present when fraud exists. Page 26

27 EY / ACFE library of keywords (Over 3,000 terms in a over a dozen languages so far ) Rationalization Incentive/ Pressure Opportunity I deserve it nobody will find out gray area they owe it to me everybody does it fix it later the company can afford it not hurting anyone won t miss it don t get paid enough make the number don t let the auditor find out don t leave a trail not comfortable why are we doing this pull out all the stops do not volunteer information want no part of this only a timing difference not ethical special fees client side storage off the books cash advance side commission backdate no inspection no receipt smooth earnings pull earnings forward Page 27

28 Fraud Triangle analytics Calculation Joint EY and ACFE Research Project Page 28

29 Fraud Triangle Analytics Research Bribery Case Keyword hits as a percentage of total s Incentive/Pressure Terms Opportunity Terms Rationalization Terms Investigation timeframe, September 2006 to March 2007 Page 29

30 Interactive dashboard Fraud Triangle Analytics Interactive Dashboard Page 30

31 Electronic Discovery ediscovery Page 31

32 Electronic Discovery ediscovery - FACTS Fact: Average number of connected devices per knowledge worker is expected to reach 3.3 by This is up from an average of 2.8 in 2012 Fact: The deadly cost of ignoring big data: $71.2 Million in lost revenue per year Fact: Through 2013, more than 60% of enterprises will have some form of Cloud adoption, and the majority will be exploring Cloud techniques Fact: Total ediscovery costs per gigabyte reviewed are generally around $18,000 Page 32

33 Top Ten Reasons You Need to Know More About ediscovery 10: Your organization has an ediscovery project budgeted for 2013/ : You are tasked with developing a business case to justify an ediscovery project for 2013/ : Your organization does not have an established ediscovery Team. 7: Your organization does not have archiving or is looking to buy a system. 6: Your organization is currently going through a Merger/Acquisition/Divesture. 5: Your organization is saving all their backup and recovery tapes forever to address litigation issues 4: Your organization has recently issued a legal hold, but is not adequately enforcing the hold. 3: Your organization has in-house ediscovery related software, but has technology gaps or uses outside 3 rd -party vendors and/or manual data collection methods 2: Your organization has more than 10 major cases per year, and/or has a wide dispersed network with thousands of potential custodians. 1: Your organization has made the front page of the Wall Street Journal and not in a good light. Page 33

34 Why Do Corporations Care About ediscovery? Why does the Legal department care? On average, American businesses are spending between $2.5 and $4.0 million -Wants to defend the corporation per year for e-discovery, per billion -Avoiding Sanctions dollars in sales making e-discovery the -Mitigating Risk largest controlled cost in American -Minimizing Costs business. 1 -CFO pressure -Wants fewer lawyers doing review saving time and money Why does the IT department care? -It s their network, hands off! -Time -Resources -They will end up doing the work operationally 1 Source: Cohasset Associates. The Eternal Charter: Improving Corporate Governance through Compliance and Assured Records Management. June Page 34

35 ediscovery - What Every IT/Audit/Compliance/Legal Professional Should Know Why do the Courts care about Electronically Stored Information (ESI)? More than 95 percent of all information is now electronic: ESI is normally stored in much greater volume than are hard copy documents. ESI is dynamic, in many cases modified simply by turning a computer on and off. ESI can be incomprehensible when separated from the systems that created it. ESI contains non-apparent information, or metadata, that describes the context of the information and provides other useful and important information. IT professionals need to understand the Rules of Evidence and Rules of Civil Procedure as much as they do the server technology and storage area networks Lawyers, on the other hand, need to understand how IT professionals manage their business and at a high level, what is on the network and where. The confluence of IT and Law has subsumed litigation in the U.S. Page 35

36 ESI Sources Going Beyond (and attachments) 80% General office productivity documents 60% Database records Invoices and other customer records Financial statements Phone call recordings & other audio files Digital images Instant messages Video files 49% 41% 36% 29% 25% 21% 16% Laptops Desktops File Server Server Other 5% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% Page 36 Source: ESG Research Report, Electronic Discovery Requirements Escalate, November, 2007

37 How much potentially relevant data do you have on your network? CD = 650 MB = 50,000 pages. DVD = 4.7 GB = 350,000 pages. DLT Tape = 40/80 GB = 3 to 6 Million pages. Super DLT Tape = 60/120 GB = 4 to 9 Million pages. *************************** Page Estimates: 1 MB is about 75 pages; 1 GB is about 75,000 pages (pick-up truck full of documents). Aver. pgs. per (100,099 pages per GB). Aver. pgs. per word document: 8 (64,782 pages per GB). Aver. pgs. per spreadsheet: 50 (165,791 pages per GB). Aver. pgs. per power point: 14 (17,552 pages per GB). *************************** For the average.pst or.nsf File: 100 MB.PST file is 900 s and 300 attachments. 400 MB.PST file is 3,500 s and 1,200 attachments. 600 MB.PST file is 5,500 s and 1,600 attachments. A 1.00 GB.NSF file is 9,000 s and 3,000 attachments. A 1.5 GB.NSF file is 13,500 s and 4,500 attachments. *************************** Note: Many variables will affect ALL of the actual numbers above, including especially large image and video files, and recursive files. *************************** Bits and Bytes Sizes: 8 bits are equal to 1 byte (one or two words), 1,024 bytes are equal to 1 kilobyte (KB). 1,024 kilobytes (KB) are equal to 1 megabyte (MB or Meg). 1,024 megabytes are equal to 1 gigabyte (GB or Gig) (truck full of paper). 1,024 gigabytes are equal to 1 terabyte (TB) (50,000 trees of paper). *ACFE ,024 Report terabytes to are the equal Nation to 1 petabyte On Occupational (PB) (250 Billion Fraud Pgs. of Text). 1,024 petabytes are equal to 1 exabytes (EB) ( bytes). Page 37

38 New Court Rules for ediscovery Federal Rules of Civil Procedure Went into effect: December 1, 2006 Requires meetings to discuss e-discovery Requires production of all potentially relevant reasonably accessible data Defines "electronically stored information" Deals with inadvertent waivers of privilege Enables requesting party, in first instance, to specify desired production formats Sets up possible "safe harbor" for lost data *ACFE 2008 Report to the Nation On Occupational Fraud Page 38

39 What are the ediscovery requirements from the FRCP? Rule 16 Court orders regarding electronic discovery much earlier Rule 26 Early discussions and disclosures of electronic information. Pre-meeting must occur between teams at companies involved in a lawsuit. Companies must represent where and how data is stored. Technology must be in place to provide access to requested information Rule 33 Responding to interrogatories by providing access to systems Rule 34 Electronically stored information (ESI) gets its own category. Organizations must deliver files & s in the format requestors define. Formats are usually native to retain hidden metadata (which must be extracted). This rule precludes most search solutions that convert or do not extract metadata Page 39 Rule 37 Sanctions and good faith. Codifies legal hold standards to ensure automated systems don t delete evidence. Companies cannot delete files or s involved in an ongoing lawsuit. Precludes search solutions that don t include data classification or management

40 What are the ediscovery requirements from the FRCP? ediscovery Electronic Discovery - is the compiling, storing and securing of digital electronically stored information, such as , files and other data. Electronically Stored Information (ESI) is a digital file, document, or record that was originally created on a computer or a paper document that has been scanned. FRCP Rule change Specifically address ediscovery; add references to electronically stored information (ESI); codified principles set forth in Zubulake Defensible Process. The amendments underscore the importance of a systemized ediscovery processes. Organizations need to establish a repeatable and defensible ediscovery process. The Duty to Preserve ESI Applies Only to Relevant Data. The Advisory Committee Notes provide that preservation efforts need only be reasonable and narrowly tailored to relevant information. Early Attention Requirement. Rules 16(b) and 26(f) require a pre-trial conference, Meet and Confer, about ediscovery. Rule 34(b) Production Requirement. Rule 34(b) permits the requesting party to specify the form of production; however, absent specification, must produce information in a form in which it is ordinarily maintained. *ACFE 2008 Report to the Nation On Occupational Fraud Page 40

41 ediscovery - What Every IT/Audit/Compliance/Legal Professional Should Know Generally after a lawsuit and before the trial there is a period of time referred to as Discovery where each party asks questions about the claims and defenses to avoid surprises at trial. Evidence collected during Discovery is used to prove or disprove claims. If a party withholds information (evidence), it may be penalized by sanctions, adverse inferences, and losing the trial There are four primary categories of Discovery: 1. Written questions referred to as interrogatories; 2. Requests for the production of documents and things; 3. Requests for admissions; and 4. Oral testimony called depositions. Page 41

42 ediscovery - What Every IT/Audit/Compliance/Legal Professional Should Know Interrogatories are questions: ex., "Describe the procedures for daily backup of the system, List all employees who had passwords to the Oracle Financial database between Jan. 20, 2003 and May 9, 2005 Document: ex., All.doc,.xls and.ppt with any of these 50 keywords ; All e- mails from certain individuals during a defined time period, all reports from a certain financial system, or copies of correspondence between specific individuals or departments. For purposes of this notice, Electronically Stored Information shall include, but not be limited to, all text files (including word processing documents), spread sheets, files and information concerning (including logs of history and usage, header information and deleted files), Internet history files and preferences, graphical image files (including.jpg,.gif,.bmp and TIFF files), data bases, calendar and scheduling information, computer system activity logs, and all file fragments and backup files containing ESI. Request for admissions are a series of questions to admit true or deny. For instance, "Admit or deny that all s sent by Jane Doe were not saved between June 27, 2001 and Sept. 10, 2003 Depositions Under the discovery rules, IT professional can be deposed by a category of "the person or persons most knowledgeable" about lists of things like , backups, databases, Web sites related to the lawsuit, and the like. *ACFE 2008 Report to the Nation On Occupational Fraud Page 42

43 ediscovery for Compliance Enforcement/Audit erecords Management Auditing - Conduct proactive records management audits to identify all records that are in violation of your policy, if documents match the search criteria, they should be preserved as evidence for later use. Need the ability to search, collect any file types or combination of search terms for collection of electronic evidence Need the ability to reveal confidential documents anywhere on your network and collect it for evidentiary purposes. Protect your company's Intellectual Property and assist with maintaining accurate financials Page 43

44 Electronic Discovery Reference Model *ACFE 2008 Information Report to the Nation Technology On Occupational Fraud Legal Page 44

45 Enterprise-wide ediscovery Technology Reduce Cost and Risk across the EDRM Electronic Discovery Reference Model (www.edrm.net) Processing Current Scope Preservation Information Management Identification Review Production Presentation Collection Analysis VOLUME RELEVANCE Identification Data Mapping, Early Case Assessment Metadata Scan Custodian, File Type, Date Range, Keyword Volume of Expected ESI Collection Location for Data Mapping Sampling Keyword Page 45 Testing Search, Collection & Forensic Preservation Processing By Custodian / SID Deduplication By Operator Privilege Forking By File Type Review Grouping By Keyword, Boolean, Proximity, Further Culling & Date Range, Pattern, Hash Value Filtering when By Metadata scope is narrowed By Location, range of IP Chain of Custody In any language and Authenticity IIA / ISACA Orange County Chapters Load Files or Native Review & Analysis Responsiveness Privilege Determination Confidential Hot Docs Concept Grouping Near-duplicates Quality Control

46 The ediscovery Funnel Page 46

47 Solidifying Your ediscovery Readiness Your ediscovery Program must: Mitigate Risks Reduce Costs and help you Gain Control over ediscovery and ESI. Your ediscovery Team must: Communicate Delegate and Maintain Control over ediscovery and ESI. Primary Technology Solutions ediscovery Data Classification Incident Response Forensics Archiving/Storage Other Related Technologies Policy & Configuration Management Data Loss Prevention Encryption and Key Management Security Page 47

48 Establish an ediscovery/compliance Team Successful CIOs should enhance their relationships with internal legal and corporate-affairs teams and be prepared to engage productively with regulators. They will need to seek solutions that meet government mandates at manageable cost and with minimal disruption. - McKinsey Quarterly, February 2009 Who better than the IT folks to know where ESI is? The team should be composed of both Legal and IT Large and small companies alike are assembling teams to lower cost and risk In order to make sure that everyone s on the same page, need a dedicated Legal person to deal with IT, and a dedicated IT person to *ACFE 2008 Report to the Nation On Occupational Fraud deal with Legal (or a liaison) Page 48

49 Establish an ediscovery/compliance Team Drivers for Working Together ediscovery and civil litigation FRCP Recent Case law International trends Compliance and regulatory issues Sarbanes-Oxley whistleblower hotlines, accounting systems, etc. HIPAA and policing health information PCI requirements need to be met for credit card numbers and information SEC and banking-regulated companies and all that they need to deal with FDA requires many pharmaceutical systems be validated Internal investigations Fraud Policy violations Firing Internal audit *ACFE 2008 Report to the Nation On Occupational Fraud Page 49

50 Translate to each others language Legal Help IT Understand ediscovery In-house legal teams should meet with IT (if they aren t already) to help them better understand the nature of ediscovery, particularly the upstream parts of the process (specifically, identification, preservation, and collection) which IT tends to be responsible for With an understanding of the nature of ediscovery, IT can improve its ability find the right documents, avoiding over-collection and reducing downstream processing costs. In addition, new ediscovery technologies are making it increasingly easy for legal to own more of the process, reducing the ediscovery burden on IT IT Help Legal Understand IT Reality Conversely, IT should provide advice and mentoring as legal seeks to bring ediscovery platforms in-house For legal teams, bringing ediscovery in-house may seem daunting, but enterprise software has been around for a long time, and learning from IT s experiences can make the process far less intimidating What is an achievable deadline for collection and production? Page 50

51 The Committee of Decision-Makers Corporate Legal Department Corporate Litigation Support Department Internal Audit Department Information Risk Department Compliance Department IT Department CIO CISO (may run the project from IT side) Corporate Security Manager Networks Desktops Servers Archive Back-Up Page 51

52 Establish an ediscovery/compliance Team ediscovery/compliance Teams In Action Focus on searching for and collecting ESI Enforce records management and compliance policies Police the data that s out there determining when it should be deleted or when it should be moved to storage, etc. Help companies minimize cost and also minimize risk Have increased consistency in terms of how they search because they re an internal team that does it all the time As such, they improve the quality of that search and collection, as well as increasing its responsiveness Page 52

53 Establish an ediscovery/compliance Team ediscovery/compliance Team Responsibilities Orchestrating the relationship between IT and Legal Overseeing ediscovery, Compliance, Risk, Audit, & Cyber Security Ensuring third-party vendor compliance Developing strategies and tactics to manage risk Establishing privacy policies to advise organization on how data will be protected, identified, preserved, collected, processed and reviewed Creating a response plan in the event of a security breach *ACFE 2008 Report to the Nation On Occupational Fraud Page 53

54 Establish an ediscovery/compliance Team ediscovery/compliance Teams are being created across the board There s a perception that smaller companies aren t doing this, but that s not the case. A lot of small companies are heavily regulated, and if they re outsourcing e-discovery, that can be very, very expensive. Many companies are seeing huge savings by bringing this in house and controlling it. Page 54

55 ediscovery/compliance Team: Summary Don't wait for a security issue to introduce your IT and your legal departments. Be highly proactive. Use ediscovery to get a jump on information security issues. Consider hiring an Electronically Stored Information (ESI) Coordinator to help you bridge IT and Legal, as now recommended by a number of judicial districts. Consider enlisting outside, objective experts to handle tasks such as conducting a security assessment, preparing a crisis communications plan and reviewing the customer notification requirements. Their input will help you respond quickly to any breaches, and will help prove you did your best to provide reasonable and prudent safeguards. Don't get caught up in security theater, i.e., countermeasures that provide the feeling of security while doing little or nothing to actually improve it. For example, what we are doing today is good enough (it could be better!) Page 55

56 Legal Hold Business Challenges The basic principle that an organization has a duty to preserve relevant information in anticipation of litigation is easy to articulate. However, the precise application of that duty can be elusive. The Sedona Conference Commentary on Legal Holds: The Trigger & The Process, August 2007 Many current litigation hold solutions do not provide an integrated means to systematically collect & process data from custodians subject to litigation holds Ensuring that the legal hold is enforced Keeping custodians out of the mix Collect to Preserve vs Preserve in Place Page 56

57 Duty to Preserve - Legal Hold Notification Duty to Preserve Begins when counsel for a party reasonably anticipates litigation, i.e., knows or should have known, that evidence is relevant to existing or future litigation Legal Hold Notice Is a communication issued as a result of current or anticipated litigation, audit, investigation or other such matter Suspending the normal disposition or processing of records Legal holds can encompass procedures affecting active data and backup tapes 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 Page 57

58 Records Retention and the Legal Hold Records Retention Policies Because ESI has become fundamental to litigation, organizations need to have a records retention policy; otherwise, how can an organization without such a policy explain to a judge why certain ESI was retained and other deleted? Hit the PAUSE button on Records Retention Policy for a Legal Hold When you become aware that a lawsuit may occur, the records retention policy must be changed regarding relevant records to the litigation. The legal term for this is "litigation hold;" however, the rules of evidence have always required potential litigants to save evidence, and if they destroy critical evidence, they lose their case because of the intentional destruction which is call spoliation. Page 58

59 How to Select and Prepare the FRCP 30(b)(6) Deposition Witness in ediscovery His or her role is to testify not on the facts of the case, but on a company s operations, such as its IT infrastructure or accounting practices. Frequently referred to as the Voice of the Corporation, the 30(b)(6) witness s testimony represents the knowledge of the entity, not of the person being deposed. In the context of ediscovery, this witness is often called to testify on the steps the corporation took to find and produce responsive documents to ensure discovery was diligently completed in good faith. Topics can vary greatly Qualifications and organizational structure Information systems Software and Records management Alternative sources of electronic information Legacy systems Backup and restoration procedures Production of ESI in other lawsuits Location and access to ESI How ESI is maintained How this data was preserved for the subject litigation Page 59

60 The Rule 26(f) Meet & Confer FRCP 26(f) - A pre-trial conference provision mandates that the parties shall confer with regard to anticipated electronic discovery issues, and address these issues to court at the preliminary conference. Implementation of a data preservation plan Identification of relevant data Scope, extent and form of production Anticipated cost of data recovery and proposed initial allocation of such cost Disclosure of the programs and manner in which the data is maintained Identification of computer system(s) utilized Identification of the individual(s) responsible for data preservation Confidentiality and privilege issues Designation of experts Page 60

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