Transcript ConferenceCode_SessionCode

Is E-Discovery IT’s Great Unfunded
Mandate?
French Caldwell
Notes accompany this presentation. Please select Notes Page view.
These materials can be reproduced only with Gartner's official approval.
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… but first a word from our lawyers
The information contained in this presentation is intended to place the
IT issues involved in e-discovery in the context of an evolving legal landscape.
It does not constitute legal advice and should not be taken as such.
Consult with and obtain the advice of legal counsel before taking significant
action in any pending or anticipated litigation.
Here We Go Again! (?)
Client Server
E-Commerce
E-Discovery
Y2K
Dot.com Boom!
What Is Discovery?
Discovery:
The act of, or process of,
finding or learning something
that was previously unknown. It
is the compulsory disclosure, at a
party's request, of information that
relates to the litigation.
Black's Law Dictionary — Eighth Edition
The Discovery Process
Request
 From plaintiff, administrator or regulator
Preservation
 At the hint of demand, this becomes No. 1
Identification
 Custodians as well as time period
Collection
 Preserve chain of custody
Review
 For privilege, production or redaction
Production
 Agree on format
New Court Rules for E-Discovery
Federal Rules of
Civil Procedure
Went into effect
1 December 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
The Clock Ticks Quickly Under The New EDiscovery Rules
Inventory — Be prepared to
know what information is
potentially available for discovery
– and where it’s located -- for the
early meet and confer sessions
(90 to 120 days) All data is
potentially discoverable.
Custodians — A person who may
have discoverable information.
Mapping information to individuals
could save huge amounts of time
and money.
Subject — Is there a taxonomy in
place that can limit the amount of
data to be produced to the subject
of the cause for action? ( i.e.,
contract dispute, employment
agreement, discrimination, etc.
Prepare For Discovery Ahead of Time

Legal / IT staff exchange

Develop and enforce
document retention policy

Prepare to communicate
preservation hold effectively

Monitor and enforce
compliance of
preservation hold

Prepare a 30(b)6 witness

Help legal prepare for
incoming production
There is reasonable and unreasonable
information you may have to produce

Reasonably accessible
information:
–
–
–
–

Active
On-line
"Near-line"
Off-line archives
Inaccessible information is
generally considered:
– Back-up tapes for disaster
recovery
– Legacy data from obsolete
systems
– Fragmented data

However, courts can compel to
produce "not reasonably
accessible" information
Creating the Electronically Stored
Information Inventory

Who generates the
record?

Who controls the record?

How is it used?

Where is it stored?

When does the record
become obsolete and
can be destroyed?

Who is responsible for its
destruction or retention?
What about attorney-client privilege in a
digital environment?

A very serious problem in
e-discovery
– Volume
– Metadata

New rules attempt to
address what to do if it
happens
– Notice
– Claw back

Best Practice: Review
metadata before production
– Avoid "quick look"
The Two Faces of Metadata
As Evidence

Must be available
per discovery
production terms

Must be reviewed
for privilege
In Practice

Must not be
turned over to
opposing
counsel
(attorney/client
privilege)

"Mining" for it
viewed by some
as an ethics
violation
Production Format Considerations

Producing party wants to turn
over discovery material in the
most locked-downed format

Demanding party wants
material in native format so
that it can mine meta data

Early meet and confer must
yield production formats
– Otherwise judge orders
production in format used in the
normal course of business

Metadata issues need to be
resolved in meet and confer
Retention Policy: Who Decides?
Senior Executives
Outside Counsel
or Specialists



Ultimate responsibility
Finance Executives

Specific legislative mandates
Pre-packaged schedules
Specific experience
IT
Business Users

Technical needs
Legal Team

E-mail managers


Retention schedule
Approvals

Business process needs
Not all data is created equal: Depending upon its
content, it may be more important than it looks



Create processes to decrease the amount of content that is saved
Deploy the right systems to support these processes
Acknowledge some may cross all categories
Wikis
IM
Employee data
IP-related
Architectural drawings
Software documentation
E-mail
Insurance policies
Contracts
E-mail
Blogs
Lab notebooks
Public infrastructure
IM
Sales forecasts
E-mail
Tax records
Transactional data
Birth, death, marriage
Medical
records
Nonrepository documents, hard drive,
Regulatory E-mail
Tech documents
file stores
Marketing documents
Ephemera
100%
<1 year
Business Continuity
Life
50%
7-10 years
Life Plus Infinity and Beyond
30%
>10 years
Forensics and E-Discovery
Electronic Evidence
E-Discovery
Computer
Forensics

Gather, filter, evaluate
and produce

Investigative and
detailed analysis

Volumes of data from
active and archived
sources


Someone else does
analysis to build case
Focused on who,
what and when of
a document
or device

Results in expert
witness testimony
The Rule 37(f) "Safe Harbor" may be more
of a "Shallow Pond"


"… lost as the result of
the routine, good-faith
operations of an
electronic information
system."
"Absent exceptional
circumstances, a court may
not impose sanctions under
these rules on the party for
failing to provide electronic
stored information … "
What are the e-discovery preservation obligations
beyond the firewall?
Intricate
x
Lawyer comfort: 2012 y
Lawyer comfort: 2007
x
Lawyer comfort: 2009
Keyword/custodian
presence
Conventional
(formal)
XX zzz
yy aa
Statistical analysis
N-dimensional relevancy
modeling
Transparent
≈
XXXX
yy
zzz
Web
a
z
Incorporation of external
data sources
Social networking
analysis
Exploratory
Is E-Discovery IT’s Great Unfunded
Mandate?
John Bace, CCEP
Notes accompany this presentation. Please select Notes Page view.
These materials can be reproduced only with Gartner's official approval.
Such approvals may be requested via e-mail — [email protected].
What Is EDRM?
Electronic Discovery Reference Model
www.edrm.net
Processing
Preservation
Records
Management
Identification
Review
Production
Presentation
Collection
Analysis
Volume
Relevance
Source: Socha Consulting and Gelbmann & Associates. Copyright 2005-2006. All rights reserved. Used with permission.
 Six-step
methodology broken into nine processes
 Developed
by a large and diverse group, including vendors, law firms
and corporate legal departments
 Common
definitions and a working glossary are available in public
domain
 Additional
work is under way to develop metrics and XML schema
Preparing for E-Discovery Through
Records Management
Who: Information Management Steering Committee, Corporate
and Divisional Records Directors, House Counsel
What: Develop a process and solution for declaring, classifying
and managing an organization's documents
When: Immediately
How: As a discipline, records management is completely
independent of technology that must address, in this
order: people, processes and technology.
Processing
Records
Management
Preservation
Identification
Review
Production
Presentation
Collection
Analysis
Volume
Source: Socha Consulting and Gelbmann & Associates. Copyright 2005-2006 All rights reserved. Used with permission.
Relevance
Proactive Identification of IT Assets
Who: Primary responsibility of the IT department
What: All hardware, software and storage,
backup and recovery, information retention
and deletion policies
When: Within 90 to 120 days of the cause for action
How: IT asset management software, forensics,
policy management, records management,
content management
Processing
Records
Management
Preservation
Identification
Review
Production
Presentation
Collection
Analysis
Volume
Source: Socha Consulting and Gelbmann & Associates. Copyright 2005-2006. All rights reserved. Used with permission.
Relevance
Preservation and Collection of Evidence
Who: IT, acting on the advice of legal counsel or other advisors
What: All data and metadata in all systems by custodian,
date range and subject matter
When: If you believe information is going to be requested,
or immediately upon request
How: Content and records management systems, policy
management systems, litigation support databases,
information access technologies, forensics
Processing
Records
Management
Preservation
Identification
Review
Production
Presentation
Collection
Analysis
Volume
Source: Socha Consulting and Gelbmann & Associates. Copyright 2005-2006. All rights reserved. Used with permission.
Relevance
Processing
Who: IT, acting on the advice of legal counsel and using
the appropriate tools, third-party provider
What: Reduce the overall set of data you have collected
by setting aside files that are duplicates,
nonrelevant file types
When: Upon receipt of interrogatory or subpoena
How: Deduplication technology, forensics, litigation
support vendors, e-mail archiving
Processing
Records
Management
Preservation
Identification
Review
Production
Presentation
Collection
Analysis
Volume
Source: Socha Consulting and Gelbmann & Associates. Copyright 2005-2006. All rights reserved. Used with permission.
Relevance
Review and Analysis: Key Technology
Differentiators
Who: Legal professionals, document review software,
content analytics
What: Review documents for relevancy, privilege and
redaction
When: Deadlines agreed to in meet and confer
conference and set by the court
How: Search and information access tools, content
analytics, tagging
Processing
Records
Management
Preservation
Identification
Review
Production
Presentation
Collection
Analysis
Volume
Source: Socha Consulting and Gelbmann & Associates. Copyright 2005-2006. All rights reserved. Used with permission.
Relevance
Production and Presentation
Who: Legal professionals, third-party specialists, IT
What: The transmittal of relevant material to
opposing counsel and the display of evidence
during proceedings
When: As soon as material is analyzed for production
How: Mutually agreed upon format, or in the manner
it is used in the normal course of business
Processing
Records
Management
Preservation
Identification
Review
Production
Presentation
Collection
Analysis
Volume
Source: Socha Consulting and Gelbmann & Associates. Copyright 2005-2006. All rights reserved. Used with permission.
Relevance
E-Discovery Tools for IT
Electronic Discovery Reference Model
www.edrm.net
Processing
Records
Management
Preservation
Identification
Review
Production
Presentation
Collection
Analysis
Volume
Relevance
Source: Socha Consulting and Gelbmann & Associates. Copyright 2005-2006. All rights reserved. Used with permission.

IT can and should take responsibility for the "upfront" part
of the model.

Getting it right takes a mixture of policy and technology.

Process discipline is essential to a defensible legal and
regulatory position.
E-Discovery Tools for Legal Professional
Electronic Discovery Reference Model
www.edrm.net
Processing
Records
Management
Preservation
Identification
Review
Production
Presentation
Collection
Analysis
Volume
Relevance
Source: Socha Consulting and Gelbmann & Associates. Copyright 2005-2006. All rights reserved. Used with permission.
IT can work with legal to specify a review platform.
 The goal is to decrease the numbers of documents
reviewed by people.
 Legal advice and understanding are key to defensible
position, particularly in processing data.
 Getting it right can result in HUGE cost savings.

The First Insight to the Emerging
E-Discovery Market
Function and
Capability
Description
Sample Vendors
Analytics, Access Collect, analyze and produce
and Search records and data, provide
information access and search
Attenex, Aungate, Clearwell,
EED, Fios, Guidant, H5,
MetaLINCS, Stratify, ZyLAB
E-Mail Archiving Deduplication, data collection, eand Management mail archiving and restoration
EMC, Fortiva, Symantec, Zantaz
Enterprise Content Support the content life cycle, from
and Records creation to distribution to long-term
Management storage
Full-Service A range of offerings and products,
from consulting to data collection,
forensics, hosting, review and
production
Litigation Support Evidence management,
Database repositories for classifying and
producing documents as evidence
Policy Monitors employee compliance
with policies, frequently in real time
EMC Documentum, FileNet,
iLumin (CA), Interwoven, Open
Text, Zantaz
Daticon (Xiotech), DOAR, EED,
Fios, FTI Consulting, Iron
Mountain, KPMG, Kroll, Onsite³,
Xerox, Zantaz
Dataflight Software, Ringtail
Solutions (FTI), Summation
Legal Technologies
Autonomy, Entrust, Orchestria
Fast-Growing Market
E-Discovery Forecast, Worldwide
Revenue (US$M)
1,000.0
Percent
0.8
0.7
0.6
0.5
0.4
0.3
0.2
0.1
0
800.0
600.0
400.0
200.0
0.0
2004 2005 2006 2007 2008 2009 2010
Source: Gartner Dataquest (October 2007)
Total CAGR (2005-2011): 35.2%
Total Software
Revenue
Year-OverYear Growth
Recommendations
Assess your compliance
needs and determine the
litigation risk that your
organization faces
 Begin a dialogue with inhouse legal professionals
 Conduct an inventory of
information assets
 Develop a strategy for
e-mail management and
retention
 Educate users on the
consequences of
noncompliance

Is E-Discovery IT’s Great Unfunded
Mandate?
French Caldwell
Notes accompany this presentation. Please select Notes Page view.
These materials can be reproduced only with Gartner's official approval.
Such approvals may be requested via e-mail — [email protected].