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EMC Kazeon & Randolph Kahn eDiscovery webinar


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EMC Kazeon & Randolph Kahn eDiscovery webinar

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EMC Kazeon & Randolph Kahn eDiscovery webinar

  1. 1. eDiscovery 2011: Trends, Risks and Best Practices July 14, 2010 EMC & Kahn Consulting Inc. EMC CONFIDENTIAL—INTERNAL USE ONLY. 1
  2. 2. Introductions Randolph A. Kahn, Esq. Jim Shook, Attorney, EMC Karthik Kannan, Sr. Dir., EMC EMC CONFIDENTIAL—INTERNAL USE ONLY. 2
  3. 3. Discovery’s Perfect Storm is Getting More Perfect Volume 1800 exabytes of new data 2011 “I dream of 200+ billion email per day a better Value tomorrow, All kinds of business being done in where new mediums chickens Courts getting more sophisticated can cross and demanding the road and not be Destruction of evidence is more questioned likely and more painful about their motives.” Info mismanagement ubiquitous So what to do in a down economy 3
  4. 4. Need to Fix Disconnects “I think •IT cares about the value of information in their people tend systems? to forget that trees •Back up should be used for discovery? are living •Bad RIM means responding to document creatures. They're sort requests in a lawsuit is super duper fun? of like dogs. •IT buys technology today without considering its Huge, quiet, legal and compliance needs? motionless dogs, with •Discovery is the act of finding something really bark great in places you never imagined? instead of fur.” Jack Handy
  5. 5. Better Define Discovery Objectives “If we “… nearly five years after the intelligence community was aren't rebuked by the 9/11 commission for failing to “connect supposed the dots”…“[t]oday, an analyst’s query might scan only 5% to eat of the total intelligence data in the U.S. government, said a animals, senior intelligence official. ” WSJ 2/22/09 why are they made with meat?” Are you prepared to do discovery on social networking content? See Crispin v. Christian Audigier, Inc.,
  6. 6. Bad Proactive=Painful Reactive “In an Aug. 15, 2005, voicemail messages addressed to company salespeople, an …employee… followed up on a I am not a “weight and diabetes sell sheet” that had recently been sent.” vegetarian “…the document written by Dr. Geller doesn’t accurately because I reflect the company’s position in 2000. In fact, it was not Dr. love Geller’s ultimate view either. It was an initial draft for animals; discussion purposes.” “In response to a plaintiffs’ attorney’s question, Dr. Geller responded that the statement was “an I am a artifact of an earlier discussion document.” WSJ 2/27/2009 vegetarian because I hate plants. An internal study by DuPont showed that, in responding to discovery requests over a three-year period, DuPont reviewed more than 75 million pages of text. It found that Whitney more than 50% of the documents that it reviewed were kept Brown beyond their required retention period, and it calculated that the cost of reviewing just those documents that had exceeded their retention periods was $12 million.
  7. 7. Bringing Discovery In-house •It’s Not “If”, It’s “When” •Control Cost •Don’t boil the ocean, control one phase at a time • Frequent discovery = In House “Bank of America Subpoenaed on Bonuses” WSJ 2/27/2009 Supreme Court made clear that government employer’s search through an employee’s text messages was reasonable and did not violate employee’s rights. City of Ontario v. Quon
  8. 8. Cost, Costs and More Costs Personnel costs Technology Storage Costs Costs of outsourcing Lack of preparedness costs “While I appreciate that it would be difficult for [defendant] … to go back through its papers to determine whether all of the documents contained therein have since been produced and …present counsel did not supervise …the…search for e-mails, I also appreciate that it is a burden of [defendant] own making. [Plaintiff]should not be penalized by [defendant’s] failure to maintain its discovery materials in some sort of organized fashion or keep some record of its own actions in this lawsuit.” Covad Communications Co. v. Revonet, Inc.
  9. 9. Expect Discovery Beyond Email “..In an employment discrimination suit ... the employer sent the policy to the employee via a mass email containing two links to the policy and did not require any further action ... the employee claimed that he received a large volume of mass company emails daily and that he could not specifically remember the arbitration policy. Although an email ‘tracking log’ indicating the time and date that the employee opened the email, the employer could not "There Are prove that the employee had actually read the email or clicked on the links. Three Kinds The court determined that the mass email did not constitute sufficient notification and further admonished the employer for not taking ‘the of People - incredibly simple and inexpensive step of configuring their system to log when Those Who and if employees clicked on the links.’" Campbell v. General Dynamics Can Count and Those Who Can't” FDA Says Cookie Dough . . . has tested positive for E.coli … FDA has been examining…records. WSJ, 6/30/09
  10. 10. Employees Aren’t Getting it “When you come to a fork in the road, take it.” Yogi Berra
  11. 11. Need to Build Defensible Process “…Bloomberg News reported over the weekend, Intel’s general counsel stated that e-mails for 151 employees who were to have been instructed to retain them as possible evidence in the AMD antitrust trial were lost by virtue of a single IT manager misreading a spreadsheet where the employees’ names were first distributed” BetaNews 3/19/ 2007 “Fluor's e-mail retention policy provided that backup tapes were recycled after 45 days. If Fluor had followed this policy, the e-mail issue would be moot. Fluor does not explain why, but it maintained its backup tapes for the entire 14- month period.” Murphy Oil v. Fluor Daniel
  12. 12. Conclusions • People, Process & Technology • Discovery is here to stay • Take control of the process • Use technology to help • Being proactive makes reacting less painful "Why does Sea World have a seafood restaurant? I'm halfway through my fish burger and I realize, Oh man ... I could be eating a slow learner.”
  13. 13. Thank you! Randolph A. Kahn, ESQ. 847-266-0722 EMC CONFIDENTIAL—INTERNAL USE ONLY. 13