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Electric Insurance RM and ESI

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Transcript

  • 1. Records Management And E-Discovery April 21, 2009 John J. Jablonski, Esq. [email_address] 716.566.5469
  • 2. Overview
    • Internal Hurdles to Effective Records Management
    • Preparing To Meet and Confer
    • Litigation Holds and Document Retention Policies
  • 3. Effective Records Management
  • 4. What Are Records?
    • “Information created, received, and maintained as evidence and information by an organization or person, in pursuance of legal obligations or in the transaction of business.”
            • - ISO 15489:2001
    Goldberg Segalla LLP
  • 5. Records Management 1.0 “Record” “Custodian”
  • 6. Then Came…
  • 7. And With it…
  • 8. Records Management 2.0 “custodian” “custodians” “custodian” “ESI”
  • 9. BUZZWORD
    • Electronically Stored Information (“ESI”)
    • All encompassing term formalized in the revised FRCP, ESI replaces “Data Compilations” and other various terms adopted throughout the years.
  • 10. ESI, ESI, EVERYWHERE
    • How much ESI are we talking about? …
  • 11.  
  • 12. Expanding Digital Universe
    • Latest Figures
    • 2007 est. = 281 Exabytes of ESI (294 Million Terabytes)
      • Library of Congress – 20 terabytes
      • Average of 45 GB per person on the planet
    • 95% of all business documents re created electronically
    • 80-95% of business documents are never printed
    • 70% of historic documents are stored electronically
    • By 2011, the digital university is estimated to be 10 times the size it was in 2006
      • Source: IDC-The Diverse and Exploding Digital Universe: An Updated Forecast of Worldwide Information Growth through 2001 (March 2008)
  • 13. Technophobia
    • “Fear or Dislike of advanced technology or complex devices and especially computers.”
  • 14. COST OF ELECTRONIC DISCOVERY
    • Budgetary planning is becoming more difficult.
    • “ Very few budgets survive first contact with the data.”
      • - Browning Marean, DLA Piper, Partner and co-chair of Electronic Discovery Readiness and Response Group
  • 15. Legal Obligations to Preserve ESI
    • Regulatory Obligations
      • FDIC
      • SOX (Sarbanes-Oxley)
      • IRS
      • SEC/NASD
      • OSHA
      • EEOC
      • Workers Compensation
      • Anticipated Litigation
      • Litigation
  • 16. Legal Obligations to Preserve ESI
    • Federal Common Law Obligations
    • “ 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 v. UBS Warburg (Zubulake IV)
  • 17. Legal Obligations to Preserve ESI
    • Federal Common Law Obligations
    • “ While a litigant is under no duty to keep or retain every document in its possession. . . It is under a duty to preserve what it knows, or reasonably should known, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request.”
    • Zubulake v. UBS Warburg (Zubulake IV)
  • 18. Spoliation
    • “ The destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”
  • 19. What’s the Big Deal?
    • Failure to prevent spoliation can result in draconian sanctions against litigants and their counsel.
  • 20. Companies have a duty to:
    • Know exactly how ESI is managed
    • Know how to prevent the computer system from destroying relevant ESI
    • Implement “Legal Holds” to prevent the destruction of relevant ESI when litigation is initiated, eminent or expected
    • Meet with key players to determine existence of ESI and stress preservation, Enforce Legal Holds
  • 21. Companies have a duty to:
    • Expand the scope of Litigation Holds if necessary
    • Retrieve and produce accessible ESI in a usable format
    • Identify not reasonably accessible ESI
    • Retrieve and produce not reasonably accessible ESI in a usable format if required by court order (there may be some cost shifting involved)
  • 22. Rule 26(f) Meet-and-Confer
  • 23. Preparing to Meet and Confer
  • 24. Rule 26(f)(3)(c)
    • 3. Discovery Plan. A discovery plan must state the parties’ views and proposals on:
    • (C) *any issues about disclosure or discovery of
    • electronically stored information, including the form or forms in which it should be produced;
  • 25. Results of Timeline
    • Option 1 – Proactive Planning :
      • Spend $$ now
      • Work in a controlled environment
      • Find the holes and plug them
    • Option 2 – Reactive Identification:
      • Spend $$$$ later
      • Rush, make mistakes, fix mistakes
      • Find the holes and beg for mercy
  • 26. What Forms of ESI Exist in the Enterprise?
  • 27. DATA MAPPING
  • 28.  
  • 29. Key Elements of a Data Map Storage Devices ESI Software Apps Custodian Population
  • 30. Litigation Readiness – R & IM
  • 31. Legal / Litigation Holds Are A Must “ The failure to implement a litigation hold at the outset of litigation amounts to gross negligence." Acorn v. Co. of Nassau , 2009 WL 605859 (EDNY 3/9/09)
  • 32. 1. Trigger Event 2. Analyze Duty To Preserve 3. Define Scope 4. Implement Hold 5. Enforce & Examine 6. Modify NO Implementation / Oversight / Training / Audit / Tracking / Legal Hold Releases Preservation Not Required YES 7. Monitor & Remove
  • 33. Questions?
  • 34. Contact Information
    • John Jablonski, Esq.
    • Goldberg Segalla LLP
    • 665 Main Street, Suite 400
    • Buffalo, NY 14203
    • (716) 566-5469 Office
    • (716) 812-5237 Cell
    • [email_address]