Electronic Discovery How can I be prepared? September 2010

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1 Electronic Discovery How can I be prepared? September 2010 Presented by Brian Wilkinson, Director of ediscovery & Computer Forensics

2 Table of Contents Page 1 Electronic Discovery Overview 1 2 Electronic Discovery Reference Model 7 3 Common Pitfalls 10 4 Preparing for Electronic Discovery 13 5 Q & A 19

3 Section 1 Electronic Discovery Overview

4 Section 1 Electronic Discovery Overview Electronic Discovery Defined Process of identifying, preserving, collecting, searching and producing electronic documents for legal proceedings. Amendments to the Federal Rules of Civil Procedure (FRCP) in 2006 address consideration of Electronically Stored Information (ESI) in the discovery process Electronic Discovery is commonly referred to as: ediscovery EDD ED Electronic Discovery How can I be prepared? 2

5 Section 1 Electronic Discovery Overview Triggering Events Companies have a duty to preserve when legal action is pending, imminent or reasonably anticipated. The duty to preserved can be triggered by any of the following: Discovery request Judicial order Employee complaints (e.g., discrimination, harassment) Regulatory inquiries Government Investigations Reasonably anticipation of litigation Electronic Discovery How can I be prepared? 3

6 Section 1 Electronic Discovery Overview Data Types Unstructured Data Structured Data Communications User Files Meta Data Transaction Data (incl. deleted) File Server Internet History General Ledger Archives Content Management Document Revision History Sub ledgers Voice Mail Workstations Printing History Cash Disbursements Backup Tapes Recoverable Deleted Files Deletion Trend Analysis Legacy Systems Instant Messaging Backup Tapes CRM Data Social Networking Security Information Backup Tapes Electronic Discovery How can I be prepared? 4

7 Section 1 Electronic Discovery Overview Electronic Discovery Players The reality of electronic discovery is it starts off as the responsibility of those who don t understand the technology and ends up as the responsibility of those who don t understand the law. Craig Ball, The Plaintiff s Practical Guide to E-Discovery, Part 1, April 2005, Electronic Discovery How can I be prepared? 5

8 Section 1 Electronic Discovery Overview Electronic Discovery Players IT External ediscovery Vendors Information Security Corporate Legal External Counsel Records Management Functional Business Leads Electronic Discovery How can I be prepared? 6

9 Section 2 Electronic Discovery Reference Model

10 Section 2 Electronic Discovery Reference Model EDRM Electronic Discovery How can I be prepared? 8

11 Section 2 Electronic Discovery Reference Model EDRM Information Management Identification Preservation & Collection Processing, Review & Analysis Production & Presentation Development of information management process and procedures to help limit the quantity of documents retained past their useful business life. Mitigates legal risk and costs. Locating potential sources of ESI relevant to the matter. Capturing ESI and ensuring it cannot be modified or deleted Reducing the volume of ESI by applying filters, loading the relevant ESI to review tool and evaluating it for responsiveness. Operate New Organisation and Implement Continuous Improvement Electronic Discovery How can I be prepared? 9

12 Section 3 Common Pitfalls

13 Section 3 Common Pitfalls Common Pitfalls Cause Data proliferation/over retention Effect Preclusion of evidence Improper Evidence Preservation Adverse inference Lack of collaboration between groups High costs Lack of repeatable/defensible process Spoliation Sanctions Poor development or execution of keywords Agitated employees Not understanding costs Neglecting departing employees Risk of additional lawsuits Electronic Discovery How can I be prepared? 11

14 Section 3 Common Pitfalls Relevant Case Law Aliki Foods, LLC v. Otter Valley Foods, Inc., 2010 WL (D. Conn. July 7, 2010) Case was dismissed after finding the Plaintiff acted willfully and in bad faith in repeatedly violating its discovery obligations and [the] Court s orders A & M Florida Props. II, 2010 WL (Bkrtcy.S.D.N.Y. Apr. 7, 2010) Monetary sanctions granted based on plaintiff s counsel lack of understanding of the IT infrastructure which caused delays in document production. Electronic Discovery How can I be prepared? 12

15 Section 4 Preparing for Electronic Discovery

16 Section 4 Preparing for Electronic Discovery Records Management 1 2 Information Risk Backup Tapes Management Strategy Record Retention Schedule Timely disposition of data Train employees Audit compliance Archive Technologies Standard rotation period Disaster recovery use only Break the IT/Attorney knowledge gap Develop policies and procedures for data on legal hold Electronic Discovery How can I be prepared? 14

17 Section 4 Preparing for Electronic Discovery Understand IT Infrastructure Connect IT & Legal and ensure someone can communicate across the groups Communicate the importance of accurate and timely data collection Develop a Litigation Data Map Electronic Discovery How can I be prepared? 15

18 Section 4 Preparing for Electronic Discovery Standardize ediscovery Process Consider building a ediscovery response team that crosses all functional areas Develop ediscovery process and procedures that are consistent, repeatable and can be defended by legal Ensure preservation notices are sent out promptly and employees are periodically reminded of their obligations Develop clear guidelines for placing documents on legal hold and removing them from the deletion schedule Develop a process to lift the legal hold Electronic Discovery How can I be prepared? 16

19 Section 4 Preparing for Electronic Discovery Discovery Plan Questions It assessment Data accessibility Defensibility & reasonableness How can we be sure that we have an accurate accounting of all the ESI my client holds? Vendor risk How do we minimize likelihood of ediscovery vendor mistakes or omissions? Do we know which responsive data is reasonably accessible, and which isn t? Discovery Plan Are we able to demonstrate that our client s ediscovery is defensible and reasonable? Process improvement Are there improvements my client could make that would greatly reduce the cost and burden of EDD? Market knowledge Global challenges Resource management Are we current enough on the latest ED offerings to know that we have the right tools for the job? Are we prepared to handle the logistical and privacy-related issues of EDD over a global enterprise? Do we have the resources to make sure best practices are followed on every case? Electronic Discovery How can I be prepared? 17

20 Section 4 Preparing for Electronic Discovery Control Costs Control the amount and type of data you store Determine what capabilities you have in-house for certain ediscovery activities Implement technology that can both assist IT and Legal Electronic Discovery How can I be prepared? 18

21 Section 5 Q & A

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