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    E discovery presentation-aiim E discovery presentation-aiim Document Transcript

    • AIIM – 5/13/2010 Reasons to Procrastinate… E-Discovery Best Practices 1. Hunting for important documents adds excitement to a boring schedule. Diane R. Gladwell, MMC 2. Being as confused as everyone else President helps you fit in. Gladwell Governmental Services, Inc., (909) 337-3516 Info@gladwellgov.org www.gladwellgov.org 3. Problems magnify your importance. 1 ©2010 Gladwell Governmental Services, Inc. - all rights reserved. 2 Do not duplicate or distribute without prior written permission Agenda for Today Your Goals & Concerns… 1. Your Goals & Concerns 2. Terminology 3. Legal Foundation 4. The Character & Basics of a Lawsuit 5. Best Practices 1. Before Litigation 2. During Litigation ©2010 Gladwell Governmental Services, Inc. 3 ©2010 Gladwell Governmental Services, Inc. 4 Terminology (1 of 4) Terminology (2 of 4) E-Discovery: Discovery phase of Media: What a record is stored on: Paper, litigation – focused on electronic magnetic (computers, tapes, disks), records microforms, optical disks (WORM / CD / DVD), WORM-Tape, etc. ESI: Electronic Stored Information Metadata: Index information added to Data Mining: Extraction of detailed and describe the document (e.g. date, document summary data / records. type, document number). Also called template data, field data, index data, etc. ©2010 Gladwell Governmental Services, Inc. ©2010 Gladwell Governmental Services, Inc. 5 6 1
    • AIIM – 5/13/2010 Terminology (3 of 4) Terminology (4 of 4) ROI: Risk of Incarceration Taxonomy: Classifying Information / ROI: (Savings from investment – cost / cost) x 100 Naming Conventions (think controlled = ROI% vocabulary) AIIM (2008): 94% of ECMS projects have a one year ROI Real ROI: Avoidance of e-discovery costs Text Mining: Locating text that City of Beaverton: $500,000 in e-discovery contains specific terms in an electronic …. The opposing Attorney went on the record (think Full Text Searches) website and found more … Total bill: $700,000 ©2010 Gladwell Governmental Services, Inc. ©2010 Gladwell Governmental Services, Inc. 7 8 AIIM, International E-Records, if “Record Copy” “Without a set program for destruction of Must be kept pursuant to routine procedures outdated e-records, a company faces designed to assure their accuracy – Federal the possibility that a subpoena will Rules of Evidence, Rule 803(6) require the retrieval and legal review of so many e-mails and other electronic .. reflect the content, structure, and context files that the most economical decision within the system. Electronic records should is to settle the case.” be inviolate (not damaged, destroyed, or modified), coherent (represent logical – John F. Mancini, CEO, AIIM International relationships), and auditable (actions taken to the document can be documented) – Model Guidelines for Electronic Records, National Historical Publications and Records Commission ©2010 Gladwell Governmental Services, Inc. - all rights reserved. 9 ©2010 Gladwell Governmental Services, Inc. Do not duplicate or distribute without prior written permission 10 Federal Rules Of Evid. (1 of 5) Federal Rules of Evid. (2 of 5) In discovery, organizations may not be As long as organizations comply with other required to produce electronically stored laws and rules (e.g. have policies, information that is not reasonably accessible procedures and training so that we do not because of undue burden or cost. destroy records after we reasonably anticipate litigation), we won’t sanctioned for Electronically stored information is failing to provide electronically stored produced in the form “in which it is ordinarily information lost as a result of the routine, maintained” or in a “reasonably useable good faith operation of the party’s electronic form.” information systems. ©2010 Gladwell Governmental Services, Inc. ©2010 Gladwell Governmental Services, Inc. 11 12 2
    • AIIM – 5/13/2010 Federal Rules of Evid. (3 of 5) Federal Rules of Evid. (4 of 5) Organizations must suspend routine The way organizations manage backup document destruction (including tapes has significant impact on what we electronically stored information), placing a must produce in litigation, and litigation “litigation hold” to ensure preservation of holds. relevant documents when we reasonably Example: If you actively use the backup anticipate litigation. tapes for information retrieval, they are subject to litigation holds. Use Backup Tapes for Disaster Recovery Purposes Only ©2010 Gladwell Governmental Services, Inc. ©2010 Gladwell Governmental Services, Inc. 13 14 Federal Rules of Evid. (5 of 5) Character of a Lawsuit Information Technology employees may be Differences of Opinions included in the “Discovery Conference” to Weaknesses on both sides discuss issues relating to disclosure or Don’t conceal: Your attorney needs to know all discovery of electronically stored information weaknesses! (ease of access, costs to produce, how you When may be more important than what manage and retain e-mail, policies and Most cases resolve out of court procedures for managing and retaining e- The attorney will try to resolve it before the mail and other types of records, etc.) deadlines (cost avoidance) Plan to only have a couple of days to do interrogatories, discovery, etc. ©2010 Gladwell Governmental Services, Inc. ©2010 Gladwell Governmental Services, Inc. 16 15 Basic Steps of a Civil Lawsuit Basics Steps of a Civil Lawsuit 1. Complaint / Petition for Writ of 5. Discovery: Fact-finding Mandate Rounds - End 60 or 30 days prior to court date Broad: Reasonable basis that it might lead to 2. Summons / Service of Process (90 some admissible evidence days, some exceptions) Depositions (Questioning under Oath) 3. Answer / Demurrer (30 days State, 20 Interrogatories (who knows where the records are?) Federal) Produce Administrative Record 4. Pleadings Request for Production of Records 5. Meet & Confer / Discovery Conference 17 What’s privileged? (Now it’s easier to take back) ©2010 Gladwell Governmental Services, Inc. ©2010 Gladwell Governmental Services, Inc. 18 3
    • AIIM – 5/13/2010 Basic Steps of a Civil Lawsuit Best Practices - Prepare Mediation / Alternative Dispute Pro-Active Preparation: Do it NOW! Resolution Bring in outside expertise when Court Hearings needed! Judgment / Dismissal / Decision 1. Create a team: Appeal? (30 days) Attorney IT Director Records Manager(s) / Coordinator(s) ©2010 Gladwell Governmental Services, Inc. 19 ©2010 Gladwell Governmental Services, Inc. 20 Best Practices - Prepare Best Practices - Prepare 2. Reduce Your Risk: 3. Litigation Hold Procedure 1. Policies, Procedures & TRAINING Clear Roles & Responsibilities 1. Identify vulnerabilities in authentic, trustworthy, reliable records Clear Directions: 2. Litigation Hold Procedure List of Keywords 3. E-mail management 4. Naming conventions and file folder structures (photos) Print this e-mail, reply to the e-mail 5. Outlaw “Black Markets” (saving e-mail to archives, C: Broadcast e-mails are not enough drives, send to gmail accounts, etc.) 6. Audit trails (who accessed what, when) Acknowledgement required 7. Social Media (Facebook, Twitter, etc.) In-person / phone call confirmation ©2010 Gladwell Governmental Services, Inc. 21 ©2010 Gladwell Governmental Services, Inc. 22 Best Practices - Prepare Best Practices - During 4. Implementation: “Free the Files” Days Trigger: Reasonably Anticipate • Always Start with Training Duty to Preserve anything relevant: Knowable, • Clear Direction and Forms reasonably anticipated • Supervision • Checks & Balances Records Retention Policies & Procedures are important 5. Training, Training, Training Bring in Expert Assistance New Employee Orientation Penalties Severe Annual or Biennial City-wide Training Individual “Hands On” for Some Pay for forensic / inaccessible ESI Jury Instruction: Assume they concealed potentially damaging evidence ©2010 Gladwell Governmental Services, Inc. - all rights reserved. 23 ©2010 Gladwell Governmental Services, Inc. 24 Do not duplicate or distribute without prior written permission 4
    • AIIM – 5/13/2010 Best Practices - During Best Practices - During 2. Create a Map of Data Collect Relevant ESI Physical possession is not the determining factor Have Attorney narrow the scope California State University v. Superior Court (2001) 90 Cal.App.4th 810, Cal.Rptr.2d 870 Search words that make sense to the case Place data in a separate folder ID all data sources: PDAs, USB keys, photos, voice mail, Relevant? Privileged? security systems, website pages, home computers, SaaS Carefully review and eliminate exact ASP Services (Recruitment, Video Streaming,) etc. duplicates Searchable Format ©2010 Gladwell Governmental Services, Inc. ©2010 Gladwell Governmental Services, Inc. 26 Questions & Answers ©2010 Gladwell Governmental Services, Inc. 27 5