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It takes a village - LegalTech NY 2011

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It takes a Village....eDiscovery at LegalTech NY 2011

It takes a Village....eDiscovery at LegalTech NY 2011

Published in: Technology, Business, Education

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  • 1. It Takes a Village…A cross-functional approach to eDiscovery
    Panelists:
    Michael Spencer – DISH Network
    Rich Simon – Deloitte Financial Advisory Services
    George Socha – Socha Consulting, LLC
    Moderator:
    William (Ted) O’Neil, Esq. – EMC Corp.
  • 2. Current State
    Situation:
    Explosion of Electronically Stored Information (ESI)
    Changes to the FRCP & case law
    Increased Regulatory Scrutiny
    Complication:
    Need to understand ESI Sources – System of Record
    ESI Accessibility
    Various Identification, Collect and Hold Processes
    Implication:
    Suspect Litigation Hold and Collection Processes
    Risk of Spoliation and breaking Chain of Custody
    Save Everything…Hold Everything…Collect Everything
    Position:
    Business imperative to -
    Pro-actively manage information
    Establish repeatable cross-functional business processes for Information Governance & eDiscovery
  • 3. Key Drivers
    Federal Litigation
    State Litigation
    Cross-Border Litigation
    EEOC & Administrative Matters
    Regulatory Inquires
    Internal Investigations
  • 4. Seventh Circuit Electronic Discovery Pilot Program
    Key Highlights:
    Cooperation
    Discovery Proportionality
    Meet & Confer
    Discovery Liaisons
    Appropriate Preservation Requests
    ESI & Production Format
    Education
  • 5. U.S. District CourtDistrict of Delaware
    Ad Hoc Committee for Electronic Discovery
    Default Standard for the Discovery of ESI
    3. E-discovery liaison.  In order to promote communication and cooperation between the parties, each party to a case shall designate a single individual through which all e-discovery requests and responses are made ("the e-discovery liaison"). Regardless of whether the e-discovery liaison is an attorney (in-house or outside counsel), a third party consultant, or an employee of the party, he or she must be:               - Familiar with the party's electronic systems and capabilities in order to explain these systems and answer relevant questions.                - Knowledgeable about the technical aspects of e-discovery, including electronic document storage, organization, and format issues.                 - Prepared to participate in e-discovery dispute resolutions.         The court notes that, at all times, the attorneys of record shall be responsible for compliance with e-discovery requests. However, the e-discovery liaisons shall be responsible for organizing each party's e-discovery efforts to insure consistency and thoroughness and, generally, to facilitate the e-discovery process.
    SEE: http://www.ded.uscourts.gov/Announce/HotPage21.htm
  • 6. Elements of a Successful Response Protocol
    Strategy
    Plan
    Roadmap
    Documented Processes
    Defined Roles & Responsibilities
    Stakeholder Ownership
    Key Metrics
    Quality Controls
  • 7. Cross-functional Players and Issues
    Key Players
    Information Technology (“IT”)
    Records and Information Management (“RIM”)
    Law Department (“LAW”)
    The Business
    Key Issues
    IT / LAW – “Systems of Record”
    What systems are in place
    What are they used for
    Which systems are likely to host data subject to legal discovery
    RIM / LAW - Records Retention - Avoidance of the “Preserve All” problem
    Records Retention Policy
    Records Retention Schedule
    LAW / IT
    Identification of Records Subject to Collection and Litigation Hold
    Coordination with IT to “Hold” Data
  • 8. Cross-Functional Solutions
    Liaison
    Dedicated individual familiar with IT systems, Records Management practices and Legal Obligations
    Liaison ensures that all three functional departments are in sync
    Training
    Ensure that the right minds have the right information
    IT people should be familiar with legal obligations
    Legal staff should be familiar with basic IT systems (email archiving, DMS, etc.)
    RIM staff should be familiar with both and ensure policies reflect both legal obligations and opportunities to reduce volume of non-responsive data
    Ensure that employee pool is aware of legal obligations, records management policies, and IT limitations
    Records Management Policy
    Sets forth how to go about preservation and destruction of records
    Records Retention Schedule
    Identifies which records can be purged and when
  • 9. Cross-Functional Approach in Practice
    The “triggering Event”…Duty to “Preserve”
    Liaison meets with managing attorney to identify key concepts, custodians, scope
    Liaison meets with LAW (litigation support) staff
    Support staff sends out preservation memo on behalf of attorney
    Begins reaching out to custodians for collection of paper records
    Submits service request to IT for collection of unstructured data
    Submits authorization request to search enterprise email archive
    Liaison meets with IT staff
    Identifies back-end preservation issues
    Discusses which systems need holds in place in data center and to what extent
    Discusses backup preservation issues e.g., are backup tapes at issue? If so, which tapes need to be pulled and for how long (est)?
    Discusses any additional steps need to be taken to preserve data / prevent spoliation by custodians, e.g., is authentication at issue? Do hard drives need to be pulled or imaged?
    Liaison meets with RIM staff
    Identifies any records destruction authorizations which need to be suspended
    Identifies locations of off-site records subject to request
  • 10. From Theory to Defensible Process
    Identify and close gaps
    Identify and close gaps in your current eDiscovery process capabilities
    Document and integrate
    Establish a documented eDiscovery process that integrates organization, process, and tools
    Enable systematic response
    Enable systematic identification, preservation and collection leveraging automated eDiscovery technology
    Standardize Processes
    Mitigate risk with a written protocol to follow upon receipt of a discovery request, preservation order, or other similar item
    Processing
    Preservation
    Identification
    Information
    Management
    Review
    Production
    Presentation
    Collection
    Analysis