Transcript Slide 1

Xact Data Discovery
People
Technology
Communication
make discovery projects happen
XACT DATA DISCOVERY
Because you need to know
www.xactdatadiscovery.com
eDiscovery Best Practices and the
Role of Information Governance
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Electronic Discovery Best Practices http://www.edbp.com/
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eDiscovery and Information Governance
Key Concepts for Discussion:
• What is eDiscovery?
• Why is Information Governance key to successful
eDiscovery?
• What are the building blocks to successful Information
Governance?
• How does Information Governance inform eDiscovery?
• Who needs to be involved in eDiscovery process?
• What does Legal need to know about Information
Governance?
• What does Information Governance need to know
about Legal
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Step 1: Litigation Readiness
• Successful eDiscovery starts with Preparation
– Sets the stage for Preservation
• Managing Risk – Records Management Program
– Establish a team
• Buy-In of key stakeholders – executive sponsor, records management,
legal, IT, compliance
– Develop program and define strategic plan
– Develop mission and vision
• Mission: purpose of program
• Vision: 2-3 years down the road
– Senior management support
– Define services performed “in-house” and consultants
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Litigation Readiness
• Conduct Records Inventory
– Records: recorded information created or received by your organization in
pursuance of legal obligations or in the transaction of business, and has
value requiring its retention
– Non-Records:
reference materials, personal papers, junk mail,
publications, convenience file, duplicate copies
– Vital records: records which would be needed immediately after an
emergency to continue your organization’s operation
– Archival records: historical records of enduring value that are preserved
and stored in your organization's archives
• Establish records management policies and procedures
• Develop records retention program
• Implement records management training program
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Litigation Readiness
• The Cost of not being Prepared…
– examples of information governance failures:
• $171 MILLION: Out-of-pocket remediation costs to a data
breach affecting 100 million persons.
• $8.5 MILLION: Sanctions for failure to locate and produce ESI in
litigation.
• $1 MILLION: Fine for failure to retain immigration records per
regulation.
• $11 MILLION: settlement with the U.S. Government for recordkeeping violations under the Controlled Substances Act
– Source: The Sedona Conference® “Principles of Information
Governance”
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The Importance of Best Practices
– “eDiscovery is a Discipline”
• “In short, this is a complex, high-risk task that requires
specialized skills and experience. It is not something one does
once a year and gets good at.” LeClairRyan partner Dennis Kiker.
– Potential ethical violations
– Expectation of competence
– Standard ESI Orders being adopted by courts in an attempt to
standardize certain practices
– Courts stress – Communication, Proportionality, Cooperation
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Reminder: An Attorney’s Ethical Duty
• ABA Model Rule 1.1 – Competence
– A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the
representation.
• Comment
– To maintain the requisite knowledge and skill, a lawyer should keep
abreast of changes in the law and its practice, including the
benefits and risks associated with relevant technology…
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“The difference between best practice and malpractice is where
the red line of unreasonable negligence is drawn.”
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Importance of Ethics & Duty of Education
• Model Order Relating to the Discovery of Electronically Stored
Information (ESI) and Checklist for Rule 26(f) Meet and Confer
Regarding ESI (Sept. 20, 2013)
– http://www.mied.uscourts.gov/pdffiles/SteehEsiOrderChecklist.pdf
– Duty of counsel to pursue eDiscovery education
• Potential for Legal Malpractice resulting from eDiscovery mistakes:
– J-M Manufacturing Company, Inc. v. McDermott Will & Emery (California
Supreme Court, Los Angeles County — Central District, Case No.: BC
462832)
• Sample Order on Professional Responsibility and Conduct
– The State of California Standing Committee on Professional Responsibility
and Conduct Formal Opinion Interim No. 11-0004
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Step 2: Preservation Activities
• Working toward proper Preservation:
– Communication - determine the who, what, where, why and how
• Establish a process in-house
• Involve outside counsel
• Tracking
– Identify the key players
• IT
• Information Governance Manager
– Identify relevant ESI
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Where is ESI stored
Identify sources
Are there retention/deletion schedules in place?
Determine whether ESI is accessible
Back-up tapes?
Available on other sources?
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Preservation - Your Obligation
• Ethical Duty – “The obligation to preserve electronically stored
information requires reasonable and good faith efforts to retain
information that may be relevant to pending or threatened litigation.”
(The Sedona Principles – Principle 5)
• The Duty:
– “The obligation to preserve evidence arises when the party has notice that the
evidence is relevant to litigation or when a party should have known that the
evidence may be relevant to future litigation.” Zubulake IV
• The Scope of The Duty:
– Identify the Who – who are the custodians
• Who has discoverable information related to claims
• Who prepared documents
• Third-parties? Former employees?
– Identify the What – what form of ESI
• All relevant documents that existed when the duty attached
• All documents created since – that are relevant
– Where is ESI stored?
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Preservation Activities
• The Litigation Hold:
– Suspend routine document retention/destruction policies
– preserve and protect against destruction
– ID Key players – counsel, employees, IT, Information Management
• Advise on duty to preserve
– Issue a written litigation hold to key players, supervisors, former
employees, third-parties
– Periodically Reissue
– Attorney’s Duty to Monitor – Zubulake V
• “Counsel must become fully familiar with her client’s document retention policies, as well
as the client’s data retention architecture.”
• Must take affirmative steps to monitor compliance so that all sources of discoverable
information are identified and searched.
– Duty to supplement per FRCP 26(e)
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The Consequences…..
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Spoliation:
– Adverse Inference Instructions
– Dismissal of Claims
– Sanctions
E-discovery sanctions, such as an award of $8.5 million in monetary
sanctions against patent holder for willfully failing to produce tens of thousands
of discoverable documents
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Qualcomm, Inc. v. Broadcom Corp., No. 05cv1958-B (BLM), 2008 WL 66932 (N.D. Cal. January
7, 2008) vacated in part by Qualcomm v. Broadcom Corp., No. 05CV1958-RMB (BLM), 2008 WL
638108 (N.D. Cal. March 5, 2008); see also Day v. LSI Corp., No. CIV 11–186–TUC–CKJ, 2012
WL 6674434 (D. Ariz. Dec. 20, 2012) (awarding partial default judgment and attorney's fee
award of $10,000, resulting from the loss of information that should have been retained
according to both a document retention policy and a litigation hold that was not properly
enforced); Pillay v. Millard Refrigerated Servs., Inc., No. 09 C 5725, 2013 WL 2251727 (N.D. Ill.
May 22, 2013) (issuing adverse inference instruction against a company for failing to stop
the automatic deletion of employee productivity tracking data, which it had used as a
reason for terminating a disabled employee).
– Source: The Sedona Conference® “Principles of Information Governance”
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Proposed Amendment to Rule 37(e)
FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION
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If a party failed to preserve electronically stored information that should have been preserved in the
anticipation or conduct of litigation, the court may:
– (1) Order measures no greater than necessary to cure the loss of information, including permitting
additional discovery; requiring the party to produce information that would otherwise not be
reasonably accessible; and ordering the party to pay the reasonable expenses caused by the
loss, including attorney’s fees.
– (2) Upon a finding of prejudice to another party from loss of the information, order measures no
greater than necessary to cure the prejudice.
– (3) Only upon a finding that the party acted with the intent to deprive another party of the
information’s use in the litigation: (A) presume that the lost information was unfavorable to the
party; (B) instruct the jury that it may or must presume the information was unfavorable to the
party; or (C) dismiss the action or enter a default judgment.
– [(4) In applying Rule 37(e), the court should consider all relevant factors, including: (A) the extent
to which the party was on notice that litigation was likely and that the information would be
relevant; (B) the reasonableness of the party’s efforts to preserve the information; (C) the
proportionality of the preservation efforts to any anticipated or ongoing litigation; and (D) whether,
after commencement of the action, the party timely sought the court's guidance on any
unresolved disputes about preserving discoverable information.]
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More Preservation Activities: Collection
• Collection:
– Preserve and protect against alteration
• Determine if Forensic Data Capture is necessary
• Preserve Metadata
• Ensure proper collection tools are utilized – self-collection?
– Defensibility
• Attorneys cannot rely upon assurances from their clients, must
personally verify that all discoverable ESI has been identified,
preserved, gathered, and produced – the Attorney signs the
pleadings.
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Step 3 : Cooperation
• Goals:
– Reduce cost and increase efficiencies
– Communication with opposing counsel
– Proportional Discovery
• A Successful Meet & Confer:
– Be prepared to discuss the following:
• Preservation
• Systems that contain discoverable ESI
• Search and production
– Agree on production procedures and form of data
• Phases of discovery
• Protective orders
• Opportunities to reduce costs and increase efficiencies
– Cost sharing
– Predictive Coding
– Hosted Review
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Cooperation Proclamation
Sedona Conference, July 2008
A coordinated effort to promote cooperation by all parties to the discovery
process to achieve the goal of a “Just, speedy, and inexpensive
determination of every action.”
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Reverse the current legal culture of adversarial discovery.
Create model case management toolkits to facilitate Proportionality and Cooperation.
Create network of trained electronic discovery mediators nationwide.
877.545.XACT
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eDiscovery and Information Governance
Key Concepts for Discussion:
• What is eDiscovery?
• Why is Information Governance key to successful
eDiscovery?
• What are the building blocks to successful Information
Governance?
• How does Information Governance inform eDiscovery?
• Who needs to be involved in eDiscovery process?
• What does Legal need to know about Information
Governance?
• What does Information Governance need to know
about Legal
877.545.XACT
www.xactdatadiscovery.com
Xact Data Discovery
People
Technology
Communication
make discovery projects happen
XACT DATA DISCOVERY
Because you need to know
877.545.XACT
www.xactdatadiscovery.com
[email protected]