Transcript Slide 1

A PROACTIVE
APPROACH TO E-DISCOVERY
March 4, 2009
Presented to the Corporate Counsel Section of
the Tarrant County Bar Association
Carl C. Butzer
Jackson Walker L.L.P.
[email protected] • 214-953-5902
Procedural Rules
• Federal Rules: Scheduling Order (16),
Initial Disclosures (26), Discovery Plan
(26), Discovery (34), Safe Harbor (37),
Subpoenas (45)
• Texas Rule 196.4: “discovery of data
or information that exists in electronic
or magnetic form”
Discovery
• “All documents and things that relate to
document retention or destruction policies
of Defendants for the last 6 years.” Keithley
v. Homestore.com, Inc., 2008 U.S. Dist.
LEXIS 103296 (N.D. Cal 2008)
• “[T]raining documents . . . relating to
document retention policies.” Kingsway Fin.
Servs. v. Pricewaterhouse-Coopers LLP,
2008 U.S. Dist. LEXIS 105222 (S.D.N.Y.
2008)
Discovery
• “Plaintiffs now seek to depose a
corporate representative regarding
document retention practices and
potential spoliation issues
surrounding the lack of a document
retention notice . . .” In re Zurn Pex
Plumbing Prods. Liab. Litig., 2008 U.S.
Dist. LEXIS 96356 (D. Minn. 2008)
Getting Control of ESI
• Understand and manage the
company’s universe of data
• Records Retention Policy
• Litigation Holds
The Plan
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Core Group
IT
Collect Existing Overview Documents
Created Detailed Documents – People,
Places, Things
• Create/Revise Document Retention Policy
• Create a Litigation Hold Process
• Create a Strategy for PreservationCollection-Review-Production
Importance of IT Professionals
• Creating network diagrams
• Identifying the company’s various file
servers, e-mail servers, fax servers,
shared drives, home/personal
directories; who has access to what;
and their geographical locations
• Technological limits
Importance of IT Professionals
(cont’d)
• Generating lists of software
applications, systems, databases
• Locating servers storing inactive data
• Identifying and putting a price tag on
cost savings
Existing Information About the
Company’s Data
• Network architecture drawings: graphical overview
of information technology
• Legacy (old and possibly out-dated) computer
systems
• Organizational charts
• Identity of software applications and databases
used in the organization
• Descriptions of product and service processes
Existing Information About the
Company’s Data (cont’d)
• Contracts with third parties for the
hosting and/or storage of company
data
• Discovery responses, documents, and
testimony related to company
litigation
Org Charts & Data Maps
• Prerequisite
• Don’t reinvent the wheel
• IT, Corporate, Legal
Records Retention
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Retention Periods
Interviews
Destruction
Mechanism for Suspending
Technology for Implementation
Training
Monitoring
Enforcement
Updating
Litigation Hold: The Law
• The duty to preserve is triggered when the party
“reasonably anticipates litigation.”
• A party reasonably anticipates litigation when the
party is on notice of a credible threat it will become
involved in litigation or anticipates taking action to
initiate litigation.
• What must be preserved is “all relevant documents
(but not multiple copies) in existence at the time
the duty to preserve attaches, and any relevant
documents created thereafter.”
Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)
Litigation Hold: The Process
• Identify key players
• Send a litigation hold letter to the key
players in which you identify the types of
information that should be preserved and
how it should be preserved
• Monitor compliance with the litigation hold
• Re-issue the litigation hold letter as a
reminder
Litigation Hold: The Repeatable
Process
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Data Maps
Organizational Charts
Point Persons
Preservation Letter
Documentation
Follow-Up
Litigation Hold Letter
• Identify the matter and the parties
• Preserve relevant information; do not
destroy
• Current and future information
• Sufficient description
• Consequences of the failure to comply
• Point of contact
• Identify other custodians, third parties
• Procedure for preservation (?)
• Acknowledgement (?)
I’ve Got Plans, But I’ve Got No
Partner: Convincing Management
• Reduction in operating costs: volume, efficiency,
technological improvements
• Risk reduction: statutory retention periods,
spoliation charges, litigation
• “If, on the other hand, it is viewed as a Six Sigma
project started with a Kaizen meeting designed to
provide a lower TCO (total cost of ownership) for a
litigation matter by showing a positive ROI (return
on investment) for the purchase of new
applications, then it is likely to be well received.”
Bringing E-Discovery In House (Jake Frazier)
Summary
1. Avoiding litigation costs and
sanctions through use of prelitigation policies and procedures;
2. Document and email retention
policies; and
3. Pre-packaged litigation holds.
E-Discovery Resources
• www.sedonaconference.com
• www.e-discoverylaw.com
• www.electronicdiscoveryblog.com
• “Managing Electronic Discovery: A Pocket
Guide for Judges” available at www.fjc.gov