EDI 2009 Hot Topics In Corporate E-Discovery-Risk Managment and Cost Control
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EDI 2009 Hot Topics In Corporate E-Discovery-Risk Managment and Cost Control EDI 2009 Hot Topics In Corporate E-Discovery-Risk Managment and Cost Control Presentation Transcript

  • Hot Topics In Corporate E-Discovery Risk Management & Cost Control The Advanced E-Discovery Institute November 12-13, 2009
  • Overview/Agenda
    • Should a company bring e-discovery in-house?
    • Four case studies: MMC, DuPont, State Farm & Nationwide
    • Other cost control issues
    • Take Aways
    Corporate Ediscovery 11/13/2008
  • Corporate Ediscovery 11/13/2008 DuPont Nationwide MMC State Farm
  • Information Management: Nationwide Solution
    • Cost of doing business meant a paradigm shift
      • Discovery Management Unit – 2002
      • Restructured RIM team – 2005
    • Note the order: addressing the discovery problem came first. Why do it this way?
      • Immediate cost benefits.
      • Developed information acquisition strategy quickly.
      • Developed program to address issues of response uniformity.
      • Developed holds methodology.
      • Experience from the discovery phase allows perspective and prioritization in RIM.
      • Comprehensive RIM requires a long lead time.
    Corporate Ediscovery 11/13/2009
  • Information Management: Decision Process
    • Sprint vs Journey – important to decide which is which
      • You do need to sprint quickly for prioritized items
        • Medium to high risk objectives that are accessible to you.
        • Those objectives with quick ROI.
        • Those objectives that impact overall corporate litigation profile.
      • You should allocate others to a well thought out, longer term plan
      • Examples from the systems perspective:
        • Storage Management – tapes, tape rotation schedules, etc.
        • Email management – archives, foldering, uniform policies.
      • One conclusion: Discovery and litigation SME’s should proactively get their hands dirty in systems issues.
    • Consider developing a benchmark against what other companies are doing
      • DuPont – mail management
      • State Farm – imaging paper / records management
      • Ely Lilly – records management
    Corporate Ediscovery 11/13/2008
  • Information Management: Decision Process
    • Sprint vs Journey – important to decide which is which
      • You do need to sprint quickly for prioritized items
        • Medium to high risk objectives that are accessible to you.
        • Those objectives with quick ROI.
        • Those objectives that impact overall corporate litigation profile.
      • You should allocate others to a well thought out, longer term plan
      • Examples from the systems perspective:
        • Storage Management – tapes, tape rotation schedules, etc.
        • Email management – archives, foldering, uniform policies.
      • One conclusion: Discovery and litigation SME’s should proactively get their hands dirty in systems issues.
    • Consider developing a benchmark against what other companies are doing
      • DuPont – mail management
      • State Farm – imaging paper / records management
      • Ely Lilly – records management
    Corporate Ediscovery 11/13/2009
  • Information Management: Impact on Bringing Discovery In-house
    • As you’ll hear today, a spectrum exists between totally outsourced discovery and completely in-sourced discovery. Where does your company fall?
      • One possible critical element: how big are you and what do you wish to take on?
      • We decided early what our core competencies were
        • Applying discovery expertise to litigation management.
        • Vendor management.
        • Systems expertise.
        • Records management expertise.
        • Lit support expertise – document production, etc.
      • We also examined what we could do with available resources and whether technology could improve productivity given the cost
        • Document processing
        • Legal holds
        • Collections
      • Unresolved question: better to buy tools on the legal side to deal with what are inherently systems limitations or put that same money into fixing the actual problem?
    Corporate Ediscovery 11/13/2009
  • Litigation Hold - MMC
    • Fortune 200 company with operations in more than 100 countries.
    • Five global subsidiaries, each with different cultures, a different litigation docket, and technology systems.
    • Some employees are subject to SEC recordkeeping rules, others are subject to other regulatory requirements.
  • MMC Legal Hold Implementation Workflow Legal Dept. issues notice Identify relevant servers Locate and preserve backup tapes
    • Make files “read only”
    • Image laptops/PCs
    • -Store hardware
    Records Mgmt -offsite files -extranets IT HR & Payroll Track terminations, leaves of absence Facilities -building access -label files Compliance & Sr business leader Vendors Data Security Outside counsel Triggering event lawsuit, subpoena, Investigation, audit, other event Ediscovery Manager Employees
  • Litigation Hold: MMC
    • Forming your e-discovery team – success of your discovery readiness plan hinges on it.
    • Identify all business functions that have a role in preserving documents
      • Some are obvious (Information Technology, Human Resources)
      • Some might not be (payroll, business liaison)
    • Training and education
      • Basic education about electronic discovery law
      • Train your e-discovery team, employees, and outside counsel about the law, the Legal Department’s expectations, and the role that team members play in the process.
      • Try a mock legal hold exercise
    • Enforcement
      • Consider a dotted line reporting relationship
      • Endorsement of senior management
      • Recognition for team members
    Corporate Ediscovery 11/13/2009
  • Collection : State Farm Problem - Big Numbers
    • State Farm insures approximately one in five cars in North America;
    • State Farm insures more than 15,000,000 U.S. homes;
    • 75,000,000 North American policies;
    • Receives between 8 and 10 million claims / year
    • 150,000 lawsuits pending at any time.
    • Hundreds of law firms defending SF nationwide .
  • Collection : Decision Process
    • Document collections and databases controlled by the enterprise with dedicated centralized staff
    • The documentation of due diligence through a formalized information gathering process and structure within the enterprise
    • The tracking of document collection, review and production through an evidentiary document management system
    • The Master Library – the reuse of previously gathered information
    • Browser based communication with outside counsel
    • The Multi-Case Platform
  • Collection : Litigation Support Concept Repository Newly Scanned Databases Legacy DBs Transcripts Exhibits Production History Witness Preparation Case Folders Draft Pleadings Motions Affidavits
  • Master Library Smith v. SFMAIC (CA) Jones v. SFMAIC (MS) RESPONSIVE DOCUMENT Confidential – For Internal Use Only Stevens v. SFF&CC (IL)
  • Life of a Document Access to review folder given to Retained Counsel to review for Production Confidential – For Internal Use Only Discovery served on SF Existing Master Library documents are copied into electronic folder New documents copied to case folder Sent to LSS Review Folder RFA Sent to Dept Contact Contact identifies responsive documents Signed Response returned to LSS Discovery Discovery Docs are QC’d Gatekeeper notifies Case handler docs are ready for append to folder New documents sent for imaging into Master Library or case folder
  • Document Review: Problem – Offshore/Outsource? DuPont Offshoring Partner Long-term Strategic Partner
    • DuPont Wants:
    • Team Concept applied to discovery
    • Outside counsel has input and seat at the table
    • Decisions are made internally to assure proper control, consistency, and risk analysis
    • Inside litigation team, Outside Counsel and PSPs work together to ensure success
    • 2. Changed conservative legal approach to a more proactive, data
    • driven, and disciplined risk management process
    • Reasonability in Discovery process
    • Don’t look under every rock
    • Reduce the top of the funnel
  • Document Review: Decision Process
    • Intended to take away work from outside law firms and drive efficiencies, quality, and cost reduction opportunities .
    • DuPont has a long business history with India
      • 1996: DuPont Legal sets up an in-house department in India
    • Selected Office Tiger, LLC (an R.R. Donnelley Company)
      • U.S. based company with overseas offices in India, Philippines, Sri Lanka, etc.
      • Comfortable with Office Tiger offshoring review
        • reviewing documents for responsiveness
        • relevancy, privilege, work-product and issue coding
    • Have utilized the Philippines the most often
      • Found that the Philippines has better language and legal similarities and availability of qualified candidates, particularly in area of document drafting
      • Philippines: trained in Philippine law schools, dedicated team, familiar with US legal standards, training, attorney law review
    • Important factors in selecting offshore provider :
      • Cost, quality, speed, relationship
  • Document Review: Solution
    • 2006 - 5 review projects conducted offshore with a net savings of approx. $500,000
    • Specific case example – Insurance claim
      • Over 2MM pages of scanned images
        • No OCR
        • Very little context other than source and case name
      • Database development to link pages with information on key claims
      • Worked at direction of domestic damages expert
      • Entire analysis piece completed in 3 months
      • Assisted collection team in identifying gaps in documentation
      • Prepared litigation team to present evidence years ahead of normal pace
      • Successful case outcome within one year’s time
      • Scalability can create leverage and an “offensive weapon”
  • Document Review: Solution
    • 2006 - 5 review projects conducted offshore with a net savings of approx. $500,000
    • Specific case example – Insurance claim
      • Over 2MM pages of scanned images
        • No OCR
        • Very little context other than source and case name
      • Database development to link pages with information on key claims
      • Worked at direction of domestic damages expert
      • Entire analysis piece completed in 3 months
      • Assisted collection team in identifying gaps in documentation
      • Prepared litigation team to present evidence years ahead of normal pace
      • Successful case outcome within one year’s time
      • Scalability can create leverage and an “offensive weapon”
  • Document Review
    • Foster an outsourcing environment
      • Makes it easier to accept offshore capabilities if
      • already comfortable with letting certain things go
    • Get comfortable with your provider
      • confidentiality, security
    • Implement “team” discovery concept
      • Engage outside law firms to train, QC and partner with the offshoring attorneys.
      • Build confidence in quality
    • Educate in-house legal department on cost &
    • quality benefits of offshore work
    • Encourage domestic providers to partner with
    • Offshore resources
  • Document Review
    • Dedicated support
      • Create trusting relationship to overcome risks
    • • Operational flexibility
      • Tailor individual matters to proper offshoring options
    • • Domestic may be better than offshore for certain matters
      • Export control issues
      • Sensitivity
      • Locations
      • Technology
  • Discussion
    • Risks/risk mitigation with in-house discovery management
    • Role of outside counsel
      • Litigation counsel
      • Ediscovery counsel
    • Other cost control
      • Arbitration
    Corporate Ediscovery 11/13/2009
  • Lessons Learned
    • Focus on critical issues for your company
    • Re-engineer existing processes to get resources
    • Team with other organizations and hold them accountable
    • Continually review and optimize processes