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Exploring Best Practices for Utilizing eDiscovery - Interview: Jordan Williams, NiSource Corporate Services Company - Chief Litigation Officer Summit
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Exploring Best Practices for Utilizing eDiscovery - Interview: Jordan Williams, NiSource Corporate Services Company - Chief Litigation Officer Summit


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For more information:

Jordan Williams who is Senior Counsel at NiSource Corporate Services Company and a speaker at the marcus evans Chief Litigation Officer Summit March 21-23, 2013, held at the Broadmoor, Colorado Springs, delivered his presentation entitled Exploring Best Practices for Utilizing eDiscovery.

Join the 2015 Summit along with top Chief Litigation Officers and service providers in an intimate environment for a focused discussion of key new drivers shaping the legal industry today.
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  • 1. INVESTMENT-DRIVEN GROWTHElectronic Discovery:A Valuable Project by It lf V l bl P j t b Itselfand a Springboard toInformation GovernancePresenter:Jordan P. Williams, Senior Counsel P Williams 1
  • 2. Introduction to NiSource Corporate Profile NiSource I (NYSE NI) b d NiS Inc. (NYSE: NI), based in Merrillville, Ind., is a Fortune 500 company engaged in natural gas transmission, g , storage and distribution, as well as electric generation, transmission and distribution. NiSource operating companies deliver energy to 3.8 million customers located within the high- demand energy corridor stretching from the Gulf Coast through the Midwest to New England.
  • 3. Show me the $$$Does Your Organization Have Budget to Fund itsInformation Governance Strategy over the next 12 gyMonths?1. Yes1 Y2. No3. Unknown 3
  • 4. Is this what RM/IG/E-Discovery Looks Like to You?
  • 5. Agenda•Key E-Discovery Trends•From Status Quo to Business Process•Winning the Internal Battle•Q&A
  • 6. Agenda Key E-Discovery Trends•From Status Quo to Business Process•Winning the Internal Battle•Q&A
  • 7. Framing the Issue [A] large corporation only can discharge its duty [to preserve evidence] by: 1) creating a comprehensive document retention policy that will ensure that relevant documents are retained … and 2) ) disseminating that policy The Hon. Andrew Rodovich, to its employees. Failure Haraburda v. Arcelor Mittal USA, Inc. to abide by this duty may (N.D. Ind. 2011) result in sanctions.
  • 8. Framing the Issue Being well into the 21st century, defendant and its counsel should have anticipated that plaintiff might, at a minimum, seek evidence . . . among the ESI of those [key] individuals. The Hon. Michael Mason, Northington v. H & M I t N thi t Internat’l (N D t’l (N.D. Ill. 2011)
  • 9. Why Information Governance?• Ediscovery, Information Management and Data Security are converging g g• ESI is growing exponentially• Cloud Storage• BYOD• HELP! 9
  • 10. Agenda•Key E-Discovery TrendsFrom Status Quo to Business Process•Winning the Internal Battle•Q&A
  • 11. Big Data = “Big Time”** Headaches Average banker’s box holds = = File 2,500 sheets of paper Sizes 1 page of information on average = (.02 megabytes) 1 2,500 50 Megabytes 10 25,000 500 20 50,000 , 1 100 250,000 5 200 500,000 10 300 750,000 15 Typical Gigabytes Typical PC Laptop 400 1,000,000 20 Hard Disk 500 1,250,000 25 1,000 2,500,000 50 2 000 2,000 5 000 000 5,000,000 100 5,000 12,500,000 250 10,000 25,000,000 500 20,000 50,000,000 1 40,000 100,00,000 2 Terabytes 60,000 150,000,000 3
  • 12. Key Trends Transforming a disjointed, ad-hoc process…● Manual - Emails & Spreadsheets ● Linear Review ● L Law Fi or Firm Vendor Hosted Review ● Manual Data Collection ● Outside Vendor to Process, ● Ship to Outside De-duplicate Counsel, or and Blind Keyword Filter ● Ship to Vendor
  • 13. Key Trends …into a Repeatable and Defensible ProcessPreservation Identification Early Case Processing Review &Legal Hold & Collection Assessment Production● Automated ● Network Based & ● Understand ● In House Culling ● Intelligent Legal Hold Automated Onsite Evidence, Facts Review instead Notices & Collections & Estimated ● Dates Domains, Dates, Domains of Linear Surveys Costs Early File Types, Key Words ● In House, Law Firm, or Vendor Hosted Review
  • 14. Every Business Process Has Its Own Application Cust. Svcs HR Accounting Legal Cust. Data C t D t Performance P f Finance Fi E-Discovery E Di Whether it is off the Does any HR More than Lawyers are stuck in the shelf, custom built shelf or custom-built, Department really spreadsheets, spreadsheets 1990 s 1990’s or early 2000’s 2000 s customer records are have a “file” for an software solutions are using word processing largely stored employee anymore? very sophisticated for and office suites…we electronically billing, accounting, need to grow and adapt audit, and cash management
  • 15. E-Discovery Has Become a Business Process Legal IT HR Accounting Compliance Wrongful Identification Regulatory Litigation & Termination, Internal & External Requests Investigations & Collection Harassment, Audits SEC, FDA, FERC Discrimination Electronically Stored Information (ESI) Email Servers Storage Desktops File Servers SharePoint Cloud
  • 16. The Team Executive Sponsor(s): Legal and IT Business Unit Sponsor(s): Legal Stakeholder Reference Group • Records Management g • Legal • IT • Project Delivery Business Unit Manager: Key Stakeholder(s) Subject Matter Expert: Internal or External Project Manager: Internal o External oject a age te a or te a Enterprise Architecture and IT Security Test and Compliance: Internal or External IT and Business Coordinator
  • 17. NiSource Goal: Alignment of Project to EDRM as useful shorthandand common theme E-Discovery Phase I y E-Discovery Phase II EDRM model was utilized throughout project due to near universal acceptance of the model and the useful shorthand understanding it p g provided for dialogue between internal and external g resources. Vendors and software options were pegged to various parts of the model for ease of comparison.
  • 18. The Project Plan Original Date (Met) Firm Schedule Calendar Year Key Dates Feb Ma Apr May Jun Jul Aug Sep Oct No DecInitiation Phase Phase IV driven basedPhase I: Reviiew, Processing and Analysis on product availability and security requirement Design and Build design. Final deployment Test occurred in December. DeployPhase II: Legal Hold Design and Build Test Deploy and TurnoverPhase III: Automate collection SRG met in late Design and Build September to discuss and approve Security roles and Test organizational Deploy & Turnover responsibilities relative to Data Collection.Phase IV: Integrate Ediscovery & Legal Hold Solution Design & Build Test Deploy & Turnover
  • 19. The Benefits Phase I Phase II Provides hard dollar Phase IIINegotiate Agreement business case benefits Reduces IT expense for Phase IV Current Ediscovery legal hold, improves Tool Release defensibility, mitigates risk Improves q y and p quality Implement Improves quality of I li f defensibility of Legal Hold Ediscovery Tool Legal Hold process process Review, Process and Analysis Implement Integrate Phase II Identify, Ediscovery Tool Collect, Preserve & Legal Hold Implement Legal Hold Q2 YR Q3 YR Q4 YR
  • 20. The Results – One Small Test Case 26,325 Docs Time < 20 Minutes Documents Sent to Legal Review Cost 1,666 Docs Minimal Searched t 34 Docs Filtered Cost/Time Before 526 Hrs to <20 Minutes $52,650 to Minimal* Before After After $ 179 694 179,694 Search Filter *Assumes 50 docs/hr x $100/hr
  • 21. The Results• Ediscovery Tool Provided Nearly Instantaneous Results (Even During Testing)• Sample Ediscovery Tool Uses To Date: – Working closely with outside counsel to respond directly to written discovery – F ll document review and creation of production sets Full d t i d ti f d ti t – Document culling/review and creation of exported sets for further external review – Investigating our own data and answering specific questions
  • 22. From Legal Hold/E-Discovery to IGWhich Processes Fall Under the Umbrella of InformationGovernance?1. Email/Records Retention2. Data Security & Privacy3. eDiscovery4.4 Data Storage5. Compliance 22
  • 23. From Legal Hold/E-Discovery to IGWhich Department Should be Responsible for InformationGovernance? (Who wants the hot potato?)1. Legal2. Compliance/Ethics3. IT/IT Security y4. Records Management5.5 Other???6. Unknown??? 23
  • 24. Re-Assembling the Team…or putting the band back together** Potential IG Project Team Members – Executive Sponsor(s): Legal and IT – Business Unit Sponsor(s): Legal – Stakeholder Reference Group – RM, Legal, IT, Project Delivery – Business Unit Manager: Key Stakeholder(s) – Subject Matter Expert: Internal or External, preferably both – Project Manager: Internal or External – E t Enterprise Architecture and IT Security i A hit t d S it – Test and Compliance: Internal or External IT and business coordinator
  • 25. The Road to IG Admitting We Have an E-Mail Problem• E-mail E mail is a system for receiving sending and storing electronic receiving, sending, messages• 294 billion email messages are transmitted per day – 2 8 million emails are sent every second 2.8 – 90 trillion emails are sent per year• Indispensable business tool – According to some estimates 60-70% of business-critical data is at some point estimates, is, point, contained in email – Supports almost all business processes• De facto collaboration tool• Transmission vehicle for attachments
  • 26. The Road to IG Admitting We Have an E-Mail Problem • E-mail i th l di piece of evidence requested at civil t i l t d E il is the leading i f id t d t i il trials today Informality of e-mail and carless communication can pose significant legal risk • Around 90% of the trillions of messages sent annually are spam and viruses • Security breaches often committed via e-mail S it b h ft itt d i il • Skyrocketing storage costs • Deceptively time consuming time-consuming • Inadequate Training • Corporate Culture of reflexive/reactionary response
  • 27. The Road to IG Admitting We Have an E-Mail Problem
  • 28. The Road to IG – What We Found When We Started Stale Policy and Outdated Practice• E-Mail E Mail Policy – last updated in 2008 • Transitory files should be discarded on routine basis, and retained no longer than 60 days • E-Mail “records” should be transferred to folder or printed to paper (emphasis added to highlight the ridiculous)• Size Limitation of 1 Gigabyte• Poor options for “Archive” / Storage Locations
  • 29. The Road to IG E-Mail Management Goal/ObjectiveGiven soaring volumes, legal risk and wasted timerelated to current e mail practices how do we e-mail practices,enhance productivity, and reduce risks and costsassociated with unnecessary email retention?
  • 30. The Road to IG Focus Groups and Meeting Objectives• UNDERSTAND current e mail use, organization and storage e-mail use• IDENTIFY differences and similarities among various business functions, as well as unique requirements• DEFINE retention needs and reasons t ti d d• DISCUSS current “best practices” for managing e-mail
  • 31. The Road to IG Focus Group Discussions – How is E-mail Used? • 80% of received e mail is transitory and should be deleted within 60 days True? e-mail days. • What is the nature of your e-mail messages? • How do you use folders? – Are folders created and named by Person? Topic? Project? e o de s c eated a d a ed e so op c oject – About how many folders do you have? – When do you move e-mails to folders? – Do you delete e-mail from folders? When? • How far back in time do you typically refer to older e-mails? • How do you manage attachments? Do you move them to an alternative location or do you leave them attached to the e-mail message? Both? • Do you store e mails in any other locations? As PDFs? As hardcopy printouts? e-mails • Do multiple team members all retain the same e-mails?
  • 32. The Road to IG Focus Group Discussions – How is E-mail Used? • Do D you always use th subject li when you compose e-mail? l the bj t line h il? • Are you consistent in how you use the subject line? (For example, for all e-mails related to a specific project, do you always include the project name i th subject li ?) j t in the bj t line?) • Do you save all received messages, or just the most recent and complete “string”? • Do you save all sent e-mails? • How old is your oldest e-mail? • How do you search for e-mail? y • Do you have trouble finding e-mails? • Do you use mobile devices such as iPads and Blackberries to access e mail? e-mail? • Have you ever been informed that you are on a “Legal Hold” and you may no longer delete e-mail until further notice?
  • 33. The Road to IG The Zone Approach Retain R t i e-mail i accordance with it “b i il in d ith its “business value” l ” • E-mails that are not tagged or moved to folder by users are considered to be “transitory” and are auto transitory auto- deleted after a specific time period • E-mails related to on-going work or projects are tagged or moved to folders, and are auto-deleted after 18 to 36 months • E-mail that is considered official company records are tagged as such by users and stored in a records repository where records management requirements and retention rules are applied
  • 34. The Road to IG The Zone Approach Zone 1 Zone 2 Zone 3
  • 35. The Road to IG The Zone Approach
  • 36. The Road to IG The Zone Approach• Removes unnecessary transitory email from the email system unnecessary,• Improves server performance and reduces storage costs• Provide a centralized system that supports the retention of email “records” in accordance with the Retention Schedule• Reduces risk of over-retention• Enhances productivity in finding needed e-mailsNEXT STEPS…• Conduct remaining Focus Groups• Develop Requirements Specifications• Update E-Mail Policy• Design Technical Solution• Pilot Solution• Address “legacy” e-mail• Phased implementation
  • 37. The Road to IG Choosing the “Right” Tools • Software comes in all shapes and sizes • Be willing to bend or flex as necessary • Test, test, test • Take the time to do your homework up front • Don’t let the perfect be the enemy of the good • Frankenstein solutions are not necessarily bad • address collaboration tools, file shares, desktop and mobile device management • Policy changes are good, but policy change coupled with work flow, change management, and the right tools is even better • This is all easier said than done • Everyone needs t accept that th E d to t th t there is no “end date” t the project, it is a i “ d d t ” to th j t i continuous process of learning, implementation, and improvement
  • 38. Agenda•Key E-Discovery Trends•From Status Quo To Business Process Winning The Internal Battle•Q&A
  • 39. Roles • Executive Sponsorship is Key (Your Sledgehammer** and source of $$$) • Business Unit Sponsors are your key advocates • Stakeholder Reference Group is vital to ensuring buy-in at all levels le els • The Team • Legal IT, Records Management Legal, IT • Project Management (internal or external) • Enterprise Architecture and IT Security p y • Test and Compliance • Outside Experts • Internal Subject Matter Experts
  • 40. Develop a “Game Plan” for Implementation • Project Team Member Updates – regular meetings and update stakeholders • Milestone Achievements – recognize steps along the path both with the team and with sponsors • Key Takeaways To Date – revisit progress, goals, goals and original mission to ensure ongoing focus and staying on track • Next steps – never be afraid to look at alternative uses for the products beyond original project scope
  • 41. Deployment Activities…or how to “Shock the Monkey”** Adoption does not occur “magically” Vendor provided end-user training is a “must” Vendor provided Admin. training is a “must” p g Identifying internal resources to be “champions” both for change and for the use of the new programs is key Recognize and reward internal champions by promoting their interest in the subject matter and products Use f U of new systems becomes mandatory t b d t Use of new systems becomes part of annual performance measures
  • 42. After Action Review: A Crucial Step “Things happened just “We were looking for like they were supposed Best Practices embedded to – and we had fun” in the tool” • Two j T major challenges – engaging IT server h ll i• Leaders understood the importance and time operations effectively and scheduling and getting commitment required to implement the project dates; however quality of work was good• Project manager established clear milestone • One half of the project was plug and play – other half requited tweaking to meet expectations q g p dates, dates knew escalation points; good consistent inter-team communication • Legal Hold solution seemed to be more off the shelf than it really was. Asking the questions in• RFP and vendor demo process were absolutely the right way would have gotten us to the nature crucial in helping team make the decision of how the vendor would deliver. How many Exterro had excellent training versions of your product do you support for different customers? How did your last half-dozen• Solid Supply Chain process – they told us the significant releases and why did things happen? how – team did the what • We did not effectively cover questions about their• IT was actively engaged in the entire internal IT development processes. procurement process • Issues with configuration/QA management; we• Leader commitment to using the new tools after expected smoother implementation– this implementation “This is the only way to issue a negatively impacted testing legal hold. ” Message reiterated at Legal Summit, • Legal Hold solution more configurable than we department meetings: consistent messaging realized; we thought configuration was parameter parameter- related to implementation and use of the driven. Make sure vendor documents solution; measured in PMW’s customizations and copies implementation notes
  • 43. Wrap-up • EDRM Model Provides common language • Executive Sponsorship is your “Sledgehammer”** Sledgehammer • Implementation does not end with “going live” • D Develop and nurture subject matter experts l d t bj t tt t • Allow for sufficient timetable, but adhere to deadlines • Celebrate milestones in the project **All apologies to the Rolling Stones, Peter Gabriel, and any other musicians or bands that I shamelessly used for bad humor in this presentation
  • 44. Agenda•Key E-Discovery Trends•From Status Quo To Business Process•Winning The Internal Battle Q&A