Pre-emptive
Pre emptive eDiscovery Strategies
for Small, Medium and Large entities

Bill Tolson
Director of Legal Solution...
“Receiving a discovery request is like being
  pulled over for a broken headlight and
  having f ll b d
  h i a full body ...
Discovery doesn’t have to be
traumatic or costly… if you
proactively plan for it
Most Frequently Requested Record Types in
Discovery
        y

                       E-mail ( d attachments )
           ...
Average Age of Data Requested During
Discovery (
        y (General Counsel Survey)
                                y)

  ...
ESI eDiscovery Trends:
More Costly, More Complicated
          y,           p

The legal problem is immense for large, mid...
eDiscovery is a Problem

The American Bar Association Digital Evidence Project and
  National Law Journal Report:

  Over ...
The Federal Rules of Civil Procedure
The New FRCP Amendments..

 Explicitly makes “electronically stored
 information” a category of discoverable d t
 if      ...
So, What is Discoverable and Subject to
Litigation Holds?
    g

  Email
                 Calendars
  Attachments
  Files ...
Major Risks Associated with ESI in
Litigation
    g

   Stopping system managed deletions
   Stopping deletion of potentia...
Major Costs Associated with ESI in Litigation

 Searching for responsive ESI in the corporate
   infrastructure
   if t t
...
Major Costs Associated with ESI in Litigation

 Searching for responsive ESI at the custodian
   level
   l   l
   Custodi...
Challenges for eDiscovery

  Managing Legal Risk
    Litigation Hold - Spoliation
    Turning over too much data – Privile...
New eDiscovery Case Law

Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL
333987 (D Minn Feb 1 2007)
...
New eDiscovery Case Law

Goodbys Creek, LLC v. Arch Ins.., 2008 WL 4279693 (M.D. Fla.
Sept. 15, 2008)
…in a reasonably usa...
New eDiscovery Case Law

White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning,
Inc., 2008 WL 3271924 (D. Kan....
The Cost of Review

quot;A recent study that appeared in Digital Discovery & e-
  Evidence showed that for a smaller case ...
Challenges for eDiscovery – Manual Process

  Manual Discovery is risky as well as time
  consuming and di
         i    d...
Challenges for eDiscovery – Manual Process

                                                            Email Boxes

     ...
Challenges for eDiscovery – Reactive
Solutions (Crawling)
          (        g)

  Reactive Discovery is risky, time consu...
Challenges for eDiscovery - Archiving

  First generation archiving solutions don’t address
  the question – What’s discov...
Proactive Archiving of all Discoverable
Data

  Advantages of proactive archiving for discovery
  over manual di
         ...
Disadvantages
  Archive storage requirements
   But…
  How much of your tier one storage resources is being
  consumed wit...
The Biggest Argument Against Archiving
from Corporate Legal…
        p        g



“The more data we keep the bigger the c...
Employees Keep Stuff No Matter

  Employees will keep data for all kinds of
  reasons
  Employees will not adhere to reten...
Blanket Retention Policies –
Unsafe Harbors


  “We save everything until our mail
  server gets full – then we delete
  e...
Discovery Strategies for Small Entities

  Control your organizations data – all of it
    Know your infrastructure
    Kn...
Discovery Strategies for Small Entities

  Create policies and procedures
    Create a litigation hold process
    Create ...
Discovery Strategies for Medium and Large
Entities

  Control your organizations data – all of it
    This includes video ...
Discovery Strategies for Medium and Large
Entities

   Inventory your data infrastructure
     What applications are used ...
Discovery Strategies for Medium and Large
Entities

   Create records retention policies. Policy(s)
   should b i place an...
Discovery Strategies for Medium and Large
Entities

   Legally refresh the policies on a regular basis
   Prohibit the cre...
Discovery Strategies for Medium and Large
Entities

  Prepare your employees for questioning from
  the th
  th other side...
Summary

 Proactively archiving ESI including email and
 office files reduces di
  ffi fil       d     discovery costs and...
Questions?
NearPoint Key Differentiators


Unified backend for all user generated content types
Centralized control of retention poli...
Where NearPoint Fits in the eDiscovery
        Ecosystem
            y
                                                   ...
eDiscovery with Mimosa NearPoint
        eDiscovery
        Request




                                                  ...
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Proactive Archiving Strategy For Aiim Minn

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Presentation given January 26th, 2009 at the 19th Annual AIIM Minnesota 'Control' event by Bill Tolson of Mimosa systems.

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Proactive Archiving Strategy For Aiim Minn

  1. 1. Pre-emptive Pre emptive eDiscovery Strategies for Small, Medium and Large entities Bill Tolson Director of Legal Solutions Marketing f S Mimosa Systems Inc. Copyright © 2009 Mimosa Systems, Inc. - Confidential
  2. 2. “Receiving a discovery request is like being pulled over for a broken headlight and having f ll b d h i a full body cavity search done.” it hd ” Unknown CEO Uk
  3. 3. Discovery doesn’t have to be traumatic or costly… if you proactively plan for it
  4. 4. Most Frequently Requested Record Types in Discovery y E-mail ( d attachments ) E il (and tt h t 80% General office productivity documents 60% Databas e records 49% Invoices and other customer records 41% Financial statements 36% Telephone call recordings and other audio files 29% Digital images 25% Ins tant mes sages 21% Video files 16% Other 5% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% ESG Research Discovery Survey Nov 2007 4
  5. 5. Average Age of Data Requested During Discovery ( y (General Counsel Survey) y) 60% 48% 50% 40% 30% 20% 15% 15% 15% 10% 4% 4% 0% Most data is Most data is Most data is Most data is Most data is Don't know / less than 6 between 6 and between 12 between 24 more than 36 refused to months old 12 months old and 24 months and 36 months months old answer old old ESG Research Discovery Survey Nov 2007 5
  6. 6. ESI eDiscovery Trends: More Costly, More Complicated y, p The legal problem is immense for large, midsize and small companies: Among midsize companies, 98% had between 1 and 20 $20-million lawsuits; the other 2% had between 21 and 50. 58% of companies had between 1 and 50 new lawsuits in 2007. Almost 40% of the largest companies surveyed spent $5 million or more annually on litigation. * Source: 2007 Fulbright & Jaworski Litigation Trends Survey A growing body of case law and judgments affects IT: Victor Stanley Inc v Creative Pipe Inc 2008 WL 2221841 (D Md May 29 Stanley, Inc. v. Pipe, Inc., (D.Md. 29, 2008) —risks of keyword search Hopson v. Mayor of Baltimore, 232 FRD 228 (D. Md. 2005) —parties ordered to create a reasonable discovery plan
  7. 7. eDiscovery is a Problem The American Bar Association Digital Evidence Project and National Law Journal Report: Over 30 Billion emails are sent daily Over 90% of ALL information is now electronic Typical Fortune 500 company has 125 on going cases with at least 75% on-going requiring electronic discovery 62% of companies surveyed doubt they can show their electronic records are accurate and reliable
  8. 8. The Federal Rules of Civil Procedure
  9. 9. The New FRCP Amendments.. Explicitly makes “electronically stored information” a category of discoverable d t if ti ” t f di bl data Mandates early meet-and-confer sessions Provides “safe harbor” in the event of “good faith” destruction of discoverable data Litigation Hold expectations
  10. 10. So, What is Discoverable and Subject to Litigation Holds? g Email Calendars Attachments Files Contacts Task Lists Anything else? Specific Points in Time Conversation Threads File Attributes Metadata Backup Tapes
  11. 11. Major Risks Associated with ESI in Litigation g Stopping system managed deletions Stopping deletion of potentially responsive Electronically Stored Information (ESI) by employees l Applying a Litigation Hold Inability to effectively filter ESI to determine responsiveness, or privilege Not turning over all responsive ESI Turning over too much ESI
  12. 12. Major Costs Associated with ESI in Litigation Searching for responsive ESI in the corporate infrastructure if t t File Servers On-line On line Storage Systems Failover Locations Email Servers Instant Messaging Servers Backup Tapes Network Share Drives
  13. 13. Major Costs Associated with ESI in Litigation Searching for responsive ESI at the custodian level l l Custodian Workstations PDAs Custodian Laptops Cell Phones CD/DVDs iPods USB Thumb Drives Digital Cameras External Hard disks Personal Email Accounts Home PCs
  14. 14. Challenges for eDiscovery Managing Legal Risk Litigation Hold - Spoliation Turning over too much data – Privilege Turning over too little data – Adverse Inference Managing Legal Cost Stopping deletions is costly to ensure Slow eDiscovery response results in severe penalties and fines Disruptive data capture decreases employee productivity Restoration of backup tapes for searching is extremely costly
  15. 15. New eDiscovery Case Law Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL 333987 (D Minn Feb 1 2007) (D. Minn. Feb. 1, Backup tapes are not inaccessible: “Defendants offer no proof, aside from conclusory statements, about the cost to obtain documents from electronic archives. So this concern cannot shield the defendants from discovery here.” Columbia Pictures Industries v. Bunnell, CV 06-1093 FMC (JCx), U.S. District Court for the Central District of California (May 2007) (y ) Server transaction logs are discoverable: An issue addressed by the judge was whether requiring the defendants to preserve and produce the server log data was tantamount to forcing them to create new data, since the defendants' systems had not created these types of logs before. t t d th t fl bf
  16. 16. New eDiscovery Case Law Goodbys Creek, LLC v. Arch Ins.., 2008 WL 4279693 (M.D. Fla. Sept. 15, 2008) …in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. Metrokane, Inc. v. Built NY, Inc., 2008 WL 4185865 (S.D.N.Y. Sept. 3, 2008) Adverse Inference and Other Sanctions Warranted for Plaintiff's Failure to Produce Damaging Emails that were Eventually Produced by Third Party Magistrate Judge Michael H. Dolinger rejected Metrokane’s procedural defense, and concluded that BNY sufficiently demonstrated discovery misconduct by Metrokane and resulting prejudice. Accordingly, the court granted a variety of remedies including an adverse inference instruction remedies, instruction.
  17. 17. New eDiscovery Case Law White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 WL 3271924 (D. Kan. Aug. 7, 2008) The Court finds that Defendants failed to produce the emails and attachments in either the form in which they are ordinarily maintained, or in a quot;reasonably usable form,quot; as required by Rule 34(b)(2)(E)(ii). Defendants' conversion of the emails and attachments to PDF documents and production of the PDF documents in paper format does not comply with the option to produce them in a reasonable usable form. Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008) Supermarket's Failure to Retain Video Surveillance Footage of Periods Preceding and Following Slip and Fall Incident quot;Shocks the Conscience of the Shocks Courtquot; and Warrants Adverse Inference Instruction
  18. 18. The Cost of Review quot;A recent study that appeared in Digital Discovery & e- Evidence showed that for a smaller case with 30 that, gigabytes of data, manual review could cost $3.3 million. The study described how a more advanced electronic approach could reduce that cost by 89%, to less than $360,000. See 'Document Analytics Allow Attorneys to be Attorneys,' y y, (Chris Paskach and Vince Walden, DDEE, August 2005, page 10.)quot;
  19. 19. Challenges for eDiscovery – Manual Process Manual Discovery is risky as well as time consuming and di i d disruptive - costly ti tl Responsive records can be anywhere Impossible to place a litigation hold quickly and completely How can you be sure all targeted employees have y g py stopped deletions of potentially responsive content? Did I find everything? 19
  20. 20. Challenges for eDiscovery – Manual Process Email Boxes Exchange Dumpster Backup Tapes CDs/DVDs Email Server PDAs Custodian Workstations ` eDiscovery Order File Server Thumb Drives MP3s/iPods Share Drives Digital Cameras
  21. 21. Challenges for eDiscovery – Reactive Solutions (Crawling) ( g) Reactive Discovery is risky, time consuming and disruptive t th i f t t di ti to the infrastructure Again, responsive records can be anywhere Impossible to place a litigation hold quickly and completely Reactive crawls and hard disk imaging is disruptive gg p to custodian productivity Did I find everything? 21
  22. 22. Challenges for eDiscovery - Archiving First generation archiving solutions don’t address the question – What’s discoverable? What s Incomplete capture of historical data If you don’t capture everything then your don t everything, litigation hold will be incomplete Cumbersome and complicated eDiscovery Doesn t Doesn’t capture all discoverable data 22
  23. 23. Proactive Archiving of all Discoverable Data Advantages of proactive archiving for discovery over manual di l discovery or reactive crawling ti li Ability to perform early case assessment – data is always at hand Place litigation holds immediately Disposition of records is automatically managed p y g Data is single-instanced so only one copy exists Archive provides a data inventory for “meet and confer” session Archive provides a “Single Point of Discovery” for email and file system data
  24. 24. Disadvantages Archive storage requirements But… How much of your tier one storage resources is being consumed with PSTs and duplicates of office files? What's your real cost of manual or reactive y discovery?
  25. 25. The Biggest Argument Against Archiving from Corporate Legal… p g “The more data we keep the bigger the chance it will be used against us in litigation” Not necessarily the case…
  26. 26. Employees Keep Stuff No Matter Employees will keep data for all kinds of reasons Employees will not adhere to retention policies on d t they squirrel away data th il With no centralized management, thousands of copies can exist for long periods of time exist…for All this does is d i up you di thi d i drive discovery cost t
  27. 27. Blanket Retention Policies – Unsafe Harbors “We save everything until our mail server gets full – then we delete everything and start anew.” anew. “We save everything for 30 (60 or 90) days and we’ve never h d a problem.” d d ’ had bl ” “We gave up trying to figure out We individual retention rules and now keep everything for 10 (15 or 20) years.” (202) 342-2550 bsavarino@cohenmohr.com
  28. 28. Discovery Strategies for Small Entities Control your organizations data – all of it Know your infrastructure Know what data is created and deleted Be able to lock it down quickly Judges don’t care what you can afford Get outside legal advice – legal advice is an insurance policy If a lawyer told you it was policy. alright, then you are better off Get that advice in writing g
  29. 29. Discovery Strategies for Small Entities Create policies and procedures Create a litigation hold process Create a eDiscovery process Create a ESI retention policy Test all of them Train employees on all policies Audit employee compliance And document everything y g
  30. 30. Discovery Strategies for Medium and Large Entities Control your organizations data – all of it This includes video surveillance Entrance/exit card access Put a centrally controlled ESI archive in place If multinational, be aware of international data retention precautions p Get internal or external legal advice g
  31. 31. Discovery Strategies for Medium and Large Entities Inventory your data infrastructure What applications are used that create data Where is the data stored How many copies are stored Do any of the systems have an automatic disposition process Do you have systems where the employee has the ability to keep a copy locally Create a data map and keep it updated Understand you regulatory retention requirements
  32. 32. Discovery Strategies for Medium and Large Entities Create records retention policies. Policy(s) should b i place and i l h ld be in l d implemented well i td ll in advance of any potential or actual litigation or investigation 3 month retention Inbox 2 year retention Project 1 Project 2 3 year retention Project 3 1 year retention after deletion Sent Items 6 month retention
  33. 33. Discovery Strategies for Medium and Large Entities Legally refresh the policies on a regular basis Prohibit the creation of employee PSTs Disable workstation CD/DVD drives and USB connections Hold regular update meetings for corporate legal and IT l ld Train all employees on the policies Document everything
  34. 34. Discovery Strategies for Medium and Large Entities Prepare your employees for questioning from the th th other side… id Interrogatories are written and sometime in-person questions posed by the opposing counsel that are designed to discover key facts about an opposing party's case. For IT, this usually will include questions relating to the corporate infrastructure. infrastructure
  35. 35. Summary Proactively archiving ESI including email and office files reduces di ffi fil d discovery costs and risks t dik Applying policies to archived data insures data doesn’t stick around forever Preparing for discovery ahead of time puts you in better i a b tt position when liti ti starts iti h litigation t t
  36. 36. Questions?
  37. 37. NearPoint Key Differentiators Unified backend for all user generated content types Centralized control of retention policies and litigation holds Consolidated view for eDiscovery Granular policy definitions Advanced seamless and shortcut style stubbing technology gy Flexible file recovery mechanisms for administrators Advanced reporting, monitoring and alerting functionality 37
  38. 38. Where NearPoint Fits in the eDiscovery Ecosystem y NearPoint eDiscovery Option (eDO) – search, review, tag and set legal hold on potentially g y responsive content NearPoint Archive for File and Email Systems Processing Preservation Information Identification Review Production Presentation Management •C t Collection Capture • Archive • Retain Analysis • Dispose • Monitor NearPoint Custodian Collector Option (CCO) – helps with reactive Electronic Discovery Reference Model collection of www.edrm.net historical file and desktop content 38 38
  39. 39. eDiscovery with Mimosa NearPoint eDiscovery Request Mimosa N P i t A hi Mi NearPoint Archive captures all discoverable content in real near-time Email Server Mimosa NearPoint Archive Server Single P i t f Di Si l Point of Discovery File Server Using the eDiscovery Option, the legal Option Single Instance staff can search for, review, tag and Archive Storage and Index place litigation holds as well as export responsive records for external legal counsel, plaintiff’s attorney or importation into case management tool. The IT department is not required in any steps
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