13 in '13: Top Ediscovery Issues

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Social media, bring your own device (BYOD), technology-assisted review, new federal preservation rules-in 2013, how are in-house lawyers keeping up with these new challenges? From policies and prevention to litigation response, the time to hone your ediscovery protocols and freshen-up on this hyper-evolving area of the law is now. Here are thirteen tips that you can take back to your in-house legal and IT teams to help you prepare for the next time you need to collect email, dig into social media data or review thousands of electronic files.

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13 in '13: Top Ediscovery Issues

  1. 1. 2
  2. 2. Kroll Ontrack: By the Numbers 3 Industry’s Leading Technology Assisted Review Functionality Most Powerful Data Processing Platform Expertise Stemming from Ediscovery’s Inception Largest & Most Secure Data Center Broad Global Reach and Language Experience Deep Loyalty Among a Premier Client List 1+TB Processed Daily 7kFile Types 20PB of Active Data 4Data Centers on Three Continents 200+Fortune 500 Clients 90+AmLaw 100 Clients 140+Case Managers in Every Major Geography 17+Years of Managing Ediscovery Matters of All Sizes 30Locations 1.5mDocuments Reviewed by a Single Reviewer 14Days 98%Projects Involving Multilingual Data
  3. 3. 4 The ideal ediscovery horizon…
  4. 4. 5
  5. 5. 6 Big Data
  6. 6. 7 Cloud Explosion Big Data
  7. 7. 8 Cloud Explosion Big Data Mobile & Social Downpour
  8. 8. 9 Cloud Explosion Big Data Cost Flood Mobile & Social Downpour
  9. 9. 10 Cloud Explosion Big Data Mobile & Social Downpour Inefficient Solutions Cost Flood
  10. 10. 11 Case by Case Project Management
  11. 11. 12 Case by Case Project Management
  12. 12. 13
  13. 13. 14 To transform ediscovery… From Art
  14. 14. 15 To transform ediscovery… To Science
  15. 15. 16 Best Practices Policies …and Technology with…
  16. 16. 17 Data Management Policy Tips
  17. 17. 18 #1: Information Management  Corporations balance legal and regulatory obligations with business efficiency » All organizations must find a way to retain required records, and also appropriately dispose of non-essential data to free storage space and prevent risks associated with over-retention  Keep tabs on data with a comprehensive list of potential data sources, including: E-mail accounts Computers, iPods, flash drives Phone calls, voicemail, Skype Databases, cloud services Network servers, structured data systems Social media sites Text messages, instant messages Document management tools Business and Personal:
  18. 18. 19 #2: Preservation and Litigation Holds  The bottom line: litigation holds remain valuable, despite the changing landscape » Large organizations are able to track a multitude of custodians storing data on complex IT systems » Even if rules are updated, implementing litigation holds are a factor in determining whether you satisfied your duty  Traditional Preservation Rule: failure to implement a litigation hold constitutes negligence per se  However, recent trends suggest a departure: » Chin v. Port Auth. – depending on the facts, a party may fulfill preservation obligations if it acts reasonably and in good faith to preserve documents » Proposals to amend the FRCP recommend a factor-based approach to determine if sanctions for failure to preserve are appropriate (willfulness, reasonableness, substantial prejudice)
  19. 19. 20 #3: Bring Your Own Device (BYOD)  As BYOD (and BYOC) grows in popularity, attempts to ignore or restrict it will likely do more harm than good » According to Gartner, half of employers will require employees to supply their own device for work purposes by 2017  Although there is no “one size fits all” approach to BYOD, a sound policy should: » Harmonize with existing information governance policies » Address security issues presented by increased number of devices connecting to the corporate network and leaving the workplace » Address device management issues to ensure that devices with comingled personal and private data retain the right information
  20. 20. 21 #4: Social Media  Develop a social media policy that clearly identifies what is and is not acceptable  Possible elements to include: » Clear guidance and on proper use: avoid unrealistic mandates-employees will use social media whether or not you allow it! » Consequences of non-compliance: clearly identify what can happen if an employee fails to follow the policy and identify specific corrective actions, particularly if they could involve litigation » Specifics on what employees can and cannot divulge: set guidelines for disclosures—should individuals identify themselves as employees, include disclaimers on comments?  Technology, law and practices are constantly changing—stay abreast and update policies as needed
  21. 21.  The cloud can serve as a simple alternative to costly on- premise software programs, which require up-front investments (hardware, licenses, installation and IT training)  Mitigating Risks in the Cloud: 22 #5: The Cloud Risk Mitigation Tactic Location Keep data within specific data centers or countries Accessibility Understand the process for getting data out of the cloud; ensure confidentiality is protected from other cloud tenants Preservation Clarify service agreements for how litigation holds will be implemented in the cloud Security Ask who is going to have access to the data and what security measures will be provided Integrity Inquire about the company's experience, reputation, financial stability and disaster recovery plans
  22. 22. 6. CLO/CIO Relationship 7. International Ediscovery 8. Sanctions 9. Proportionality and Cost Control 10. Proposed Amendments to FRCP 23 Litigation Response Best Practices Tips
  23. 23. 24 #6: CLO/CIO Relationship » Frequent, in-depth policy conversations to identify underlying legal/IT issues and form solutions » Update the organization’s data map » Establish clear guidelines about litigation holds » Discuss pending and potential ediscovery projects » Communicate about data custodians, locations, data retention policies, and litigation hold procedures  “A meeting a month keeps the sanctions away!”
  24. 24. 25 #7: International Ediscovery Asia • Ediscovery rules developing in some countries (e.g., Singapore, Japan, South Korea) • Greatest impact: U.S.-based litigation needing to collect and produce data originating in Asia Australia • Established ediscovery rules (Practice Note CM6) • Standardized pre-discovery and pre- trial checklists are frequently used Europe • Limited ediscovery because of heightened privacy protections and civil law system UK • Established ediscovery rules (CPR 31, Practice Dir. 31B), but obligations less broad than US Canada • Provincial ediscovery rules (Ontario Civ. Pro. 29.1.03) • “The Sedona Canada Principles”
  25. 25. 26 #8: Spoliation and Sanctions  Courts today expect more sophisticated and tech- savvy litigants than ever before » In 2012, ediscovery opinions discussed sanctions more than any other topic, but opinions also scrutinized procedural issues, such as search protocols, cooperation, production, and privilege issues  Most of sanction orders now stem from counsel trying to keep pace with big data and evolving technologies » Sanction orders in 2012 were cautionary tales: Counsel must appropriately understand their client’s data before attempting to preserve or collect it!
  26. 26. 27 #9: Proportionality and Cost Control  Efforts to “tame the beast” of rising ediscovery costs in the spirit of proportionality are the focus of state rule changes  Most recently, Minnesota’s Amended Civil Procedure rules, which go into effect on July 1, 2013, alter the scope of discovery: » It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues. The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation. (New Minn. R. Civ. P. 1)  Rules aim to tighten the reins by emphasizing early preparation and cooperation amongst parties
  27. 27. 28 #10: FRCP Amendments  Update: Amendment package approved for public comment period to occur later in 2013  If passed as current proposal, amendments would include: » Cooperation: Rule 1 » Proportionality: – Scope: Rule 26(b)(1) – Limits: Rules 30, 31, 33, 34 & 36 » Discovery Costs: Rule 26(c) » Preservation Planning: Rules 16 & 26(f)  Finally, the Package also contains a replacement Rule 37(e) to address the issues of Spoliation and Sanctions
  28. 28. 11. Early Data Assessment 12. Technology Assisted Review 13. Portfolio Management Ediscovery Technology Tips 29
  29. 29. 30 #11: Early Data Assessment (EDA) The ediscovery process: EDA is CRITICAL. It aids in fact-finding and narrows the data scope: • Triages data into critical and non-critical groupings • Identifies and reduces number of key players • Tests key search terms • Identifies critical case arguments • Categorizes documents as efficiently as possible for production
  30. 30. 31 #12: Technology Assisted Review Document review is routinely the most expensive part of the discovery process. Saving time and reducing costs will result in satisfied clients. Traditional/Linear Paper-Based Document Review Online Review Technology Assisted Review
  31. 31. 32 Data Produce Collect Review Process Continuous Parallel Interdependent Iterative #13: Portfolio Management Best addressed with an integrated team and technology
  32. 32. 33 Ediscovery involves more than technology—instead it’s a combination of: • methodologies • that involve people, processes and • the right technologies. Parting Thoughts….

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