Help! Legal is nn the Phone! E Discovery In House

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Help! Legal is nn the Phone! E Discovery In House

  1. 1. Help! Legal is on the Phone! Bringing eDiscovery In-House to Reduce Costs, Maintain Control, and Mitigate Risk© Copyright 2009 EMC Corporation. All rights reserved. 1
  2. 2. AgendaGetting AcquaintedeDiscovery RealityGetting StartedNew eDiscovery CapabilitiesSummaryQ&A© Copyright 2009 EMC Corporation. All rights reserved. 2
  3. 3. Getting to Know YouWhat is your job function?Do you already use email archiving?Have you had to deal with a request for legal hold?Are you familiar with the eDiscovery jargon?© Copyright 2009 EMC Corporation. All rights reserved. 3
  4. 4. What is eDiscovery? Requirement that organizations of all sizes collect, preserve, review and produce information for legal and regulatory proceedings. Public Litigation Investigation Audit Disclosure Current and reasonably State and Federal Internal and external audit Federal, State and anticipated Federal regulators, IRS, of books and records, Local - Freedom of and State litigation OSHA,SEC, NASD, Defense Contractor Audit, Information Act, FINRA, HIPAA, Data Government Contract Open/Public Records Privacy & Protection Audits. Acts© Copyright 2009 EMC Corporation. All rights reserved. 4
  5. 5. eDiscovery and the FRCP Electronically Stored Information (ESI) explicitly included – Management prior to discovery impacts costs of eDiscovery Very early meet and confer “Preserving” appears in the rules for the first time Requirement to understand the sources of ESI Less obligation to produce “inaccessible” content – Still may have to hold it (can be just as burdensome) Limited “safe harbor” for good faith inadvertent destruction of content – Best protection through solid records management program, including litigation hold Some protection for inadvertent waiver of attorney-client privileged materials Need for transparency!© Copyright 2009 EMC Corporation. All rights reserved. 5
  6. 6. eDiscovery Reality  Information management challenges – Unstructured data piling up – No enforced policy, including disposition and retention  eDiscovery issues – Massive cost and risk – Average cost of a single eDiscovery incident is $1.5M* – Exposure of ineffective information management  Spending inefficiencies – Many organizations are outsourcing – Recurring expense for every matter or investigation  Economic implications – Economic conditions and litigation frequency run counter-cyclical – As the economy deteriorates, lawsuits and investigations increase* Source: Dataquest Insight: Emerging E-Discovery Market Spurs New Content and Records Management Investments, Gartner Research, October 2006© Copyright 2009 EMC Corporation. All rights reserved. 6
  7. 7. Inefficient Information Management is Costly ROI FACTORS Up to 90% of Up to 50% of One GB of data can Cut IT and legal costs [stored] data is network drive result in $18,750 in by 10–50% by redundant or out of storage is consumed legal review costs bringing outsourced date by e-mail files, solutions in-house mainly PST and files from other systemsSource: Gartner, E-Discovery: Project Planning and Budgeting, 2008–2011, February 2008© Copyright 2009 EMC Corporation. All rights reserved. 7
  8. 8. The Expense of eDiscovery % of Average Cost of Process Step Discovery Description Outsourcing Costs* Costs associated with document Identification - $200/hr collection from inaccessible locations Collection – Collection 28% $200+ /hr or $400+ /GB Cost of holding massive volumes $100+ /hr or Hold 20% Unanticipated legal risk $5+ /GB Spoliation risk Cost directly related to number of Processing – documents to review $850+ /GB or Inspect/Revie $.03+/ pg w 35% Review – $120+ /hr or $1,200+ GB/Mo Cost of delivering ESI to various $.06/pg Produce 17% recipients on various media (e.g., CD, $50+/load file DVD, or paper) $1,000+/GB *when proceedings or investigations involve the discovery of ESI Source: Enterprise Strategy Group, 2007 and Gartner, 2007© Copyright 2009 EMC Corporation. All rights reserved. 8
  9. 9. Legal Department Challenges Difficult to identify or collect ESI – Massive over-collection  waste of resources, risky “pooling” of data – Substantial risk of “faux” eDiscovery No Early Case review – Data collection is time consuming – Data processing/culling does not occur until the opposing parties agree on the scope Significant expenses for legal review – 1 GB equals approximately 50,000 files to review – Not enough attorneys to review the data – No way to review the data without possibly changing the metadata Sanction risk – Manual process leads to jeopardy – Difficult to meet deadlines and comply with legal obligations© Copyright 2009 EMC Corporation. All rights reserved. 9
  10. 10. As Economy Contracts, Digital Universe Expands Expected to double in size every 18 months -- 5X as much digital information in 2012 – 487 BILLION GB! Interaction between people via email, messaging, social networking grows by factor of 8 The Enterprise Faces the Digital Universe Amount of information considered compliance intensive (subject to rules) grows from 25% in 2008 to 35% in 2012 – Email archives – Financial – HR records – Litigation documents © Copyright 2009 EMC Corporation. All rights reserved. 10
  11. 11. As Economy Contracts, Litigation and Regulation Expand “As one outcome of the current macro-economic environment… expect more litigation and regulation in 2009.” Forrester Regulatory investigations – Fallout from the financial crisis = enhanced regulation Employee litigation – Layoffs generate lawsuits and investigations “A tidal wave of  wrongful termination  Shareholder derivative actions – Reporting, drop in stock, financial crisis lawsuits is expected in  the coming months  Aggressive IP practices – Seeking additional revenue sources …” CFO oversight Los Angeles Times – Weaker economy results in pressure on expenses - including legalSources:Forrester: “Trends 2009: eDiscovery”, Brian Hill, 1/15/2009“As companies increase layoffs, lawsuits are likely to follow”, Carol Williams, Los Angeles Times, 12/28/08 © Copyright 2009 EMC Corporation. All rights reserved. 11
  12. 12. 2009 by the Numbers $1B+ companies spending >$10M Anticipate even on litigation each more regulatory Have more than Expect an year inquiries and $20M at risk in increase in (excluding proceedings in at least one litigation during settlements 2009 case 2009 and damages) (all respondents) (public companies) (“large” companies) Source: Fifth Annual Litigation Trends Survey, Fulbright & Jaworski, Oct. 2008© Copyright 2009 EMC Corporation. All rights reserved. 12
  13. 13. Two Years After FRCP Amendments… State of Readiness = Unprepared 57% of law firms: clients not ready to find and produce information relevant to litigation 39% of in-house counsel: company not prepared for eDiscovery Errors generate sanctions and headlines Scenario 1 Scenario 2 Lawyers for company produced small Company hit with an $8.5M penalty for batch of relevant email about 10 hours mistakes with its own discovery of email before trial. U.S. District Court Judge relevant to a patent lawsuit. As Federal Marilyn Hall Patel declares “heads will courts emphasize the responsibility of have to roll.” According to reports, the parties to conduct thorough discovery punished company had reviewed searches, more such mishaps are likely. terabytes of information for this case. “Companies Not Ready For E-Discovery”, http://www.informationweek.com/blog/main/archives/2008/09/ companies_not_r.html, posted 9/23/08© Copyright 2009 EMC Corporation. All rights reserved. (Andrew Conry-Murray, Information Week). Survey from Oce Business Services. 13
  14. 14. How about You? Where would you put your organization with regard to litigation procedures? 0% 5% 10% 15% 20% 25% 30% 35% 40% 45% We have no policy to to deal litigation  or  no policy deal with  legal discovery A legal discovery process might  require us  to search back‐up tapes A legal discovery is  likely to show  up gaps  from deleted emails We have a policy to deal with  legal  discovery that  relies on manual  processes We can carry out legal  discovery searches  across our email  archive We can carry out a  single legal  discovery  search across all of our records repositories We can set a legal  hold on our email archive We can set a legal  hold on both active  and  archived emails We can justify  deleted emails  based on  retention policies Our email deletion mechanism  includes  deletion from back‐up  tapes “© AIIM 2009, www.aiim.org” N = 1109© Copyright 2009 EMC Corporation. All rights reserved. 14
  15. 15. How Long? Would it take you to produce all the organizational information related to a former custodian or constituent? 0% 5% 10% 15% 20% 25% 30% less than 5 days 5‐14 days 15‐30days 31‐60 days ~30% would take more than more than 60 days 31 days for just 1 custodian *Source: AIIM Industry Watch “Email Management: The Good, the Bad, the Ugly”. © AIIM 2009, www.aiim.org N = 1109© Copyright 2009 EMC Corporation. All rights reserved. 15
  16. 16. Beyond Email and Outside The Archive Which of the following record types has your organization been asked to produce in a legal proceeding or regulatory inquiry? Includes Email residing on Laptops Desktops File Server Email ServerBased on 107 respondents. Source: ESG Research Report, 2007 E-mail Archiving Survey, November 2007© Copyright 2009 EMC Corporation. All rights reserved. 16
  17. 17. eDiscovery and Records Information Management ROI “Organizations unprepared for e-discovery in 2009 will be at a disadvantage …open to potential sanctions from an increasingly technically literate U.S. judiciary. As defendants, organizations need to respond quickly and effectively … As plaintiffs, organizations must have their ESI house in order and be prepared for reciprocal discovery requests …” Gartner, “Reduce the Cost and Risk of E-Discovery in 2009”, D. Logan and J. Bace, 1/9/09 Budget roughly Unprepared “Between 10% $500,000 on IT companies will ROI Factors One TB of data and 90% of what support for cases spend 1/3 more can result in [clients] have involving 10 or on eDiscovery $18.75M in than those with does not need to more custodians and/or more than legal review content be retained for three different costs archiving any reason.” systems solutions.© Copyright 2009 EMC Corporation. All rights reserved. 17
  18. 18. What If You Could…  Improve litigation effectiveness by producing relevant information quickly, accurately, and defensibly?  Reduce the risk of spoliation (alteration or destruction of evidentiary ESI) by employing a proven litigation hold process for email and unmanaged data?  Lower legal costs with in-house, automated, repeatable eDiscovery processes?  Improve IT efficiency and reduce costs by establishing the business value of electronically stored information?© Copyright 2009 EMC Corporation. All rights reserved. 18
  19. 19. Getting Started Good Information Governance Security and Corporate Litigation Massive Industry privacy record keeping readiness information regulations Protection of Records and retention U.S. Federal Rules of growth Varied, numerous, and corporate information management Civil Procedure Unsure about continuing to emerge (FRCP) information value (and Limiting access Historical Regulation preservation/file plan Expanding risk) interpretation drives eDiscovery rules Saving everything policy worldwide© Copyright 2009 EMC Corporation. All rights reserved. 19
  20. 20. Engage the Stakeholders … Get Cross-Functional OGC IT Infrastructure Inside Counsel IT Applications Outside Counsel Legal Technology Compliance Business Audit Business Units Compliance Finance Records Management HR© Copyright 2009 EMC Corporation. All rights reserved. 20
  21. 21. What Language are We Speaking? Legal IT  FRCP/FRE  Active Directory  ESI  Fuzzy logic  Legal Hold  SIS  Meet and confer  Journaling  Custodian  Boolean expressions  Trusted custodian  ASP, ISP, cloud computing  Spoliation© Copyright 2009 EMC Corporation. All rights reserved. 21
  22. 22. Respect the Motivation Inside Counsel Outside Counsel “Business Perspective” “Litigation Perspective”  Legal holds for individual  Broad legal hold for business unit custodians  Broader view of relevant issues  Narrow view of relevant issues aimed at winning case as stated in complaint  Early case assessment to plan  Provides too much or too little strategy information  Spend what’s necessary to fulfill  Centralize discovery to reduce legal discovery obligation and review and production costs litigate case  Efficient business function  Produce document with consistent dictates format of documents format  Focus on finding ESI/hardcopy  Establish clear chain of custody© Copyright 2009 EMC Corporation. All rights reserved. 22
  23. 23. Understand Your Litigation Profile Routine MattersCharacteristics ExamplesLimited business scope On-the-job injuryMost work handled by in-house admin staff HR matterWork product may be reviewed by in-house counsel prior tosubmission to requesting partyShort timeframe; small number of custodiansLittle or no day-forward collection/preservationShort duration from notice to resolution Other considerations – Average size  Number of investigators (3)  Number of custodians (10)  Duration (12 months) – Number per year (24)© Copyright 2009 EMC Corporation. All rights reserved. 23
  24. 24. Understand Your Litigation Profile Significant MattersCharacteristics ExamplesBroad business or revenue impact scope SEC investigationWork may be split between in-house admin staff and in-house legal Patent infringementstaffWork product may be reviewed by outside counsel prior to Executive misconductsubmission to requesting partyReasonable timeframe; modest number of custodiansMay require significant day-forward collection/preservationModest duration from notice to resolution Other considerations – Average size  Number of investigators (30)  Number of custodians (100)  Duration (36 months) – Number per year (5)© Copyright 2009 EMC Corporation. All rights reserved. 24
  25. 25. Understand Your Litigation Profile “Bet-the-Business” MattersCharacteristics ExamplesPotentially significant revenue impact Product liabilityPotentially significant reputational impact Class action suitWork may be split between in-house legal staff and outside legalcounselWork product reviewed by outside counsel prior to submission torequesting partyLong timeframe; large number of custodiansLikely to require significant day-forward collection/preservationLong duration from notice to resolution Other considerations – Average size  Number of investigators (100)  Number of custodians (250)  Duration (72 months) – Number per year (1)© Copyright 2009 EMC Corporation. All rights reserved. 25
  26. 26. Information Management and End-to-End eDiscovery ROI – Reduce Risk; Improve Data Use Information eDiscovery Management Process Processing Preservation Information Identification Review Production Presentation Management Collection “IT organizations Analysis that have an electronic information inventory, active policy management and archiving solutions, Information Management eDiscovery Solutions and a repeatable process in Solutions Identify, Collect, Preserve, place for e-discovery will Records Management Export spend up to 50% less on e- Email Archiving Immediate ROI discovery in 2009 than Save money; improve those that do not.” eDiscovery (over time) Gartner, 1/09 Sources The Electronic Discovery Reference Model, www.edrm.net “What To Do About Discovery and Legacy Information Management in 2009, Gartner Inc., Debra Logan, 1/10/09© Copyright 2009 EMC Corporation. All rights reserved. 26
  27. 27. Policy Management Solutions Email Policy Enterprise Records Management and Collect and Hold Solutions and Policy Discovery Solutions Management Solutions desktop File share, email Other Secure Repositories© Copyright 2009 EMC Corporation. All rights reserved. 27
  28. 28. Proactive Email ManagementKey Capabilities • De-duplicated, full-text indexed archive “In the past it could have taken up to 40 to 50 hours to go • Flexible search interfaces for users, through the tapes and search Supervisors, and Administrators for large chunks of e-mail…for • Flexible retention policies our legal counsel…Now that • Preserve all relevant metadata we have online access to these records, we can oftenTangible Benefits pull up everything they need within 2 to 3 hours. • Find messages quickly — Director of IT, Cascadia Capital • Cost effectively store messages for long- term retention • Eliminate risk of unmanaged personal archives© Copyright 2009 EMC Corporation. All rights reserved. 28
  29. 29. EMC SourceOne for eDiscoveryManage information effectively for proactive litigation readiness EMC SourceOne Email Management helps mitigate cost and risk of eDiscovery • Centrally manage e-mail • Consistently enforce retention and disposition • Metadata proves authenticity EMC SourceOne products and solution for eDiscovery • Reduce time and cost associated with eDiscovery • Bring more of the process in-house • Create repeatable business practices© Copyright 2009 EMC Corporation. All rights reserved. 29
  30. 30. EMC Offerings mapped against the EDRM SourceOne Email Management Technology SourceOne Email Management and Discovery Manager Partners SourceOne Discovery Collector Information eDiscovery Management Process Processing Preservation Information Identification Review Production Presentation Management Collection Analysis EMC Storage EMC Global Services & Partner Service Providers© Copyright 2009 EMC Corporation. All rights reserved. 30
  31. 31. EMC SourceOne Discovery Manager Discovery of Email Within the Archive Comprehensive identification and collection •High-volume search of archive •Search against custom metadata Consolidated preservation •Consolidate into legal hold folder •De-duplication and full text indexing •Chain-of-custody preservation Effective culling with matter specific tags Flexible export •Variety of formats Secure matter management •EDRM XML standard • Simple wizard-driven interface Downstream savings • Security at matter level •Less content to outside counsel • Matter lifecycle management •Repeatable business process© Copyright 2009 EMC Corporation. All rights reserved. 31
  32. 32. EMC SourceOne Discovery Manager Repeatable business process in action Configurable display for easy Matter “areas” for sort, filter, and easy organization step through of data results Preview pane for quickly “reviewing” search results and establishing matter relevance© Copyright 2009 EMC Corporation. All rights reserved. 32
  33. 33. EMC SourceOne Discovery Manager Collection and Preservation Search history captured and viewable by investigators Comprehensive statistics to monitor investigation© Copyright 2009 EMC Corporation. All rights reserved. 33
  34. 34. EMC SourceOne Discovery Collector Discovery of Content Outside the Archive Desktops File Server E-Mail Server Archives EMC Infrastructure         Document Management Rich eDiscovery Policy Management Early Assessment Features • Index and classify content in-place • Gain insight into sources of electronically stored information • Purpose-built for eDiscovery • Retain and delete content • Defensible processes according to policy • Reports enable early case assessment to determine merit Complements EMC Proven Solution Fast Time to Value Archiving • Vigorously tested • Indexing appliance; quick to deploy• Ability to address content • Integrated with EMC infrastructure • Less content sent for processing and inside and outside the archive review • Fast return on investment© Copyright 2009 EMC Corporation. All rights reserved. 34
  35. 35. EMC SourceOne Discovery Manager and EMC SourceOne Discovery Collector  Efficient and complementary Files, emails, and – Address content inside and outside other content archive outside the archive – Improve information management Desktops  Index and classify data  Create or enforce policy File servers  Tiered storage based on value Archives  Rapid time-to-value Discovery Collector SharePoint – In-house eDiscovery  Quick-to-deploy appliance E-mail servers EMC Infrastructure  Defensible process Email living  Information governance in the Archive – Enterprise strategy Discovery Manager EMC SourceOne – Modular approach Email Management Archive  Leverages EMC infrastructure – Delivers price/performance leadership© Copyright 2009 EMC Corporation. All rights reserved. 35
  36. 36. Straightforward ROI “The payback period for an eDiscovery investment is very short, on the order of 3-6 months after implementation takes place.”“MarketScope for E-Discovery Software Product Vendors”, Gartner, Inc., 12/17/08.© Copyright 2009 EMC Corporation. All rights reserved. 36
  37. 37. EMC SourceOne for eDiscovery Benefits Respond cost-effectively to eDiscovery requests. Implement a repeatable business process that minimizes eDiscovery and compliance costs. Enforce information management policies for both email and unmanaged data scattered outside the archive. Take the next step Set up a product demo Request an ROI/TCO analysis www.EMC.com/SourceOne© Copyright 2009 EMC Corporation. All rights reserved. 37
  38. 38. Summary Get prepared. Involve all the stakeholders in the process. Tailor the solution for your needs … not just litigation … but cost savings and business productivity, too. Work on the process as much as the technology. Think good information governance. Think EMC SourceOne solutions.© Copyright 2009 EMC Corporation. All rights reserved. 38
  39. 39. Get Involved with EMC CMA CommunitiesWhy should you join? Collaborate and share best practices Shape the direction of future EMC products Network with innovators across the globe, 24/7 Join now by going to: community.EMC.com/go/Documentum community.EMC.com/go/SourceOne developer.EMC.com/Documentum developer.EMC.com/XMLtech community.EMC.com/community/labs/d65© Copyright 2009 EMC Corporation. All rights reserved. 39

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