It takes a village - LegalTech NY 2011


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

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It takes a village - LegalTech NY 2011

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