RIM in the Age of E-Discovery

FIRM Summer Program June 23, 2009 Christina Ayiotis, Esq., CRM Group Counsel– E-Discovery & Data Privacy, CSC Adjunct Professor, George Washington University

 Records, Information, Data, Documents, Content, ESI, Web 2.0

 Full life-cycle management of information– from creation/receipt to final disposition  Proper and Thorough Destruction (Media Neutral)  Privacy Laws/E-Discovery

Records and Information Management (RIM)—Setting the Stage

 Definition of “Litigation Preparedness”  Consistent, Auditable RIM  Legal Hold Process/Management ◦ Must be able to demonstrate preservation obligation is fulfilled  Records in the Ordinary Course ◦ “Routine and Repetitive” Activity

Coordinating RIM Strategy with Litigation Preparedness

 Nationally and internationally ◦ Global systems should be configured to account for cross-border restrictions  Protecting certain data types ◦ Private data, export-controlled data  Incorporating compliance requirements at the front end

Corporate Strategy for Meeting Compliance Requirements

 Discovery is Discovery  Less Information = Less Cost to Review  Version Control- Best Evidence  Authenticity/ Trusted Time Stamps – Admissibility, SOX compliance, etc.

Interplay between E-Discovery and Enterprise Information Management

 System of Record ◦ Deduplication ◦ ◦ Hashing Hold Management  Defensibility of Process ◦ Collection (Forensically Sound) ◦ ◦ Preservation (In Situ or on Secure Server) Chain of Custody

Interplay between E-Discovery and Enterprise Information Management

 Have a RIM policy but don’t implement it  Plan a system without considering authenticity requirements  Maintain strict divisions between IT, RIM and Legal  Deploy systems without C&A process  Have a RIM program but don’t audit it

TOP TEN Enterprise Information Management and E-Discovery DONTs

 Deny requests to search E-Mail due to cost burden without justification  Claim privilege without justification  Produce records in any format you like  Refuse to meet and confer regarding ESI  Forget to use sampling as a way to validate keywords and limits costs

TOP TEN Enterprise Information Management and E-Discovery DONTs

SEC v. Collins & Aikman Corp. (S.D.N.Y. Jan. 13, 2009), 2009 U.S. Dist. LEXIS 3367 ◦ Whether identifying responsive documents that have been organized by the producing party invades the protection accorded to attorney work-product and how a government agency—acting in its investigative capacity– must respond to a request for the production of documents  SEC claimed compilation is attorney work product  Even if not work product, is how “maintained in the usual course of business” ◦ Key to dichotomy is the assumption that in either case he documents would be organized– that records kept in the usual course of business would not be maintained in a haphazard fashion

The FRCP and Government

SEC v. Collins & Aikman Corp. (S.D.N.Y. Jan. 13, 2009), 2009 U.S. Dist. LEXIS 3367 ◦ Whether a government agency may unilaterally restrict the scope of its search based on an assertion of an “undue burden” on limited public resources  “Like any ordinary litigant, the Government must abide by the Federal Rules of Civil Procedure. It is not entitled to special consideration concerning the scope of discovery . . .” ◦ “The calculus might differ where the Government must defend against allegations that may have little merit but can be enormously expensive to litigate.”  General scope– any nonprivileged matter relevant to any party’s claim or defense … relevant to the subject matter involved … reasonably calculated to lead to the discovery of admissible evidence

The FRCP and Government

SEC v. Collins & Aikman Corp. (S.D.N.Y. Jan. 13, 2009), 2009 U.S. Dist. LEXIS 3367 ◦ Whether a government agency may unilaterally restrict the scope of its search based on an assertion of an “undue burden” on limited public resources  “The SEC’s blanket refusal to negotiate a workable search protocol responsive to these requests is patently unreasonable.”  Sedona Conference Cooperation Proclamation ◦ “[U]rges parties to work in a cooperative rather than an adversarial manner to resolve discovery issues in order to stem the ‘rising monetary costs’ of discovery disputes.”

The FRCP and Government

SEC v. Collins & Aikman Corp. (S.D.N.Y. Jan. 13, 2009), 2009 U.S. Dist. LEXIS 3367 ◦ How much information the Government must disclose in order to allow an adversary– and the court– to assess an objection based on the deliberative process privilege  “In order to qualify for the privilege, a document must be ‘predecisional’ and ‘deliberative.’”  SEC’s privilege log was deficient  SEC must submit documents for in camera review with a short memorandum explaining why each document is entitled to protection

The FRCP and Government

SEC v. Collins & Aikman Corp. (S.D.N.Y. Jan. 13, 2009), 2009 U.S. Dist. LEXIS 3367 ◦ Whether a government agency may unilaterally exclude its own e-mail from document production on the ground that most– but not all– will be privileged  “It is now well-established that electronically stored information is subject to discovery.”  “The concept of sampling to test both the cost and the yield is now part of the mainstream approach to electronic discovery.”  Parties are “directed to meet and attempt to negotiate a reasonable search protocol.”

The FRCP and Government

 Relationship between RIM and Legal ◦ Regular open communication ◦ Strategize before systems are set up to ensure authenticity of content and ease of reproducing it ◦ Work with IT to calculate true cost of storage (incorporate cost per gigabyte of attorney review time)

Best Practices

 Collaborate, collaborate, collaborate  Communicate, communicate, communicate  Train, train, train  Audit, Audit, Audit ◦ Judge Facciola will not consider a RIM program legitimate unless it is implemented and audited

Best Practices