2. Document Retention Policy
• Document retention means many things to many people depending on
their business.
• Sarbanes-Oxley’s (Sarbanes-Oxley's Document Retention Rules and Best Practices)
• HIPPA
• Can be mandated based on industry by either federal, or state
jurisdictions, sometimes both.
• Basically if you are not mandated to retain your documents, draft and
adhere to your own document retention policy. This will make any
electronic discovery process much more efficient.
• Adhering to your own document retention policy ensures your ethical
practices regarding data deletion if involved in litigation.
• An effective data retention policy should:
• Reduce “data artifacts”
• Reduce the amount of production and review: if involved in electronic discovery
• Properly store and delete company relevant data based on requirements set by the
organization or mandating authority.
• Address all relative data and storage options utilized by the company, pc hard disks,
servers, mobile devices, tapes, archives, off-site storage
3. Electronic Discovery
• Electronic discovery (or e-discovery) refers to discovery in civil litigation
which deals with information in electronic format also referred to as
Electronically Stored Information (ESI). Electronic information is different
from paper information because of its intangible form, volume, transience
and persistence. Also, electronic information is usually accompanied by
metadata, which is not present in paper documents. However, paper
documents can be scanned into electronic format and then manually
coded with metadata. The preservation of metadata from electronic
documents creates special challenges to prevent spoliation.
• Electronic discovery was the subject of amendments to the Federal Rules
of Civil Procedure, effective December 1, 2006.[1] shows the changes, the
complete Rules, where in particular rules 16 and 26 are of interest to
electronic discovery.
* source http://en.wikipedia.org/wiki/Electronic_discovery
4. Federal Rules of Civil Procedure
Related to e-Discovery
Rule 16. Pretrial Conferences; Scheduling; Management
(a) Purposes of a Pretrial Conference.
(3) discouraging wasteful pretrial activities;
(b) Scheduling
(3) Contents of the Order.
(A) Required Contents. The scheduling order must limit the time to join other parties, amend the
pleadings, complete discovery, and file motions.
(B) Permitted Contents. The scheduling order may:
(i) modify the timing of disclosures under Rules 26(a) and 26(e)(1);
(ii) modify the extent of discovery;
(iii) provide for disclosure or discovery of electronically stored information;
(c) Attendance and Matters for Consideration at a Pretrial Conference.
(2) Matters for Consideration
(F) controlling and scheduling discovery, including orders affecting disclosures and discovery under Rule
26 and Rules 29 through 37;
* Source : http://www2.law.cornell.edu/rules/frcp/Rule16.htm
5. Federal Rules of Civil Procedure
Related to e-Discovery
Rule 26. Duty to Disclose; General Provisions Governing Discovery
(a) Required Disclosures
(1) Initial Disclosures
(A)In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court,
a party must, without awaiting a discovery request, provide to the other parties:
(ii) a copy — or a description by category and location — of all documents, electronically stored information, and
tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or
defenses, unless the use would be solely for impeachment;
(b) Discovery Scope and Limits.
(2) Limitations on Frequency and Extent
(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of
electronically stored information from sources that the party identifies as not reasonably accessible
because of undue burden or cost. On motion to compel discovery or for a protective order, the party from
whom discovery is sought must show that the information is not reasonably accessible because of undue
burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if
the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may
specify conditions for the discovery.
(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is
more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case,
the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.
6. Federal Rules of Civil Procedure
Related to eDiscovery
Rule 26. Duty to Disclose; General Provisions Governing Discovery
(b) Discovery Scope and Limits
(3) Trial Preparation: Materials.
(A) Documents and Tangible Things.
(B) Protection Against Disclosure.
(C) Previous Statement.
(5) Claiming Privilege or Protecting Trial- Preparation Materials.
(B)Information Produced.
(c) Protective Orders
(1) In General
(2) Ordering Discovery
(d) Timing and Sequence of Discovery
(1) Timing
(2) Sequence
(e) Supplementation of Disclosures and Responses.
(1) In General
(2) Expert Witness.
(f) Conference of the Parties; Planning for Discovery
(3) Discovery Plan.
*source: http://www2.law.cornell.edu/rules/frcp/Rule26.htm
7. Electronically Stored Information (ESI)
• Electronically stored information, for the purpose of the Federal Rules of Civil
Procedure (FRCP) is information created, manipulated, communicated, stored, and
best utilized in digital form, requiring the use of computer hardware and software.
The term has become a legally defined phrase as the U.S. government determined
for the purposes of the FRCP rules of 2006 that promulgating procedures for
maintenance and discovery for electronically stored information was necessary. [1]
• Types of ESI
(1)Native Files (Office documents ect…)
(2)Logical Data (RAM)
[1]source: http://en.wikipedia.org/wiki/Electronically_stored_information_(Federal_Rules_of_Civil_Procedure)
[2] Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure http://www.law.northwestern.edu/journals/njtip/v4/n2/3/
8. e-Discovery as Experienced
The process as experienced:
• Requesting attorney/party issues legal hold (usually broad), or requests financial impact
information for the legal hold they are about to request.
• Responding attorney/party rebuts request as too broad or implements legal hold on electronic
information to the specified requirements of the request.
• Parties conference and discovery requirements are mandated.
• Responding party performs discovery on the data specified in the time frame required.
• Information/documents produced from the discovery are given to counsel to review for privileged
information.
• Non-privileged information is given to requesting party in the specified required formats.
Note: IT Department staff may be depositioned by requesting party counsel to assist them in developing
their discovery requirements.
• Typically this is a “data hunt” by the complainant counsel to discover what types of data are
available, any data retention policies that exist, and in what formats the data is in.
• This may even get into “known” information such as if the IT personnel is aware of any data
destruction that has occurred since a legal hold has been requested. Or, if the IT personnel has
assisted any specific employees in question with data deletion.
9. Legal Hold
• With changes to the Federal Rules, the landmark Zubulake and Morgan Stanley
cases, and the Supreme Court analyzing how document retention policies are
enforced, corporate practices around the retention/ destruction of electronically
stored information (ESI) have never been more important.
• The “legal hold” operates at the intersection of litigation and corporate retention
practices, and it has emerged as an almost-obligatory component of a company's
response to notice or reasonable anticipation of litigation. The basis of this
obligation is the common law duty against spoilation; that is, the duty to avoid the
loss of, destruction of, or failure to preserve information that may be relevant to
pending or potential proceedings.
• In a pre-digital age, this duty was fairly straightforward: Don’t burn or shred the
documents in your desk drawers or file cabinets. But modern businesses generate
massive amounts of digital information, which is created and stored in an ever-
expanding number of devices and locations, and which can be destroyed without
any affirmative action. As a result, effective legal hold practices involve significantly
more than merely issuing an internal letter and sitting back until the official
discover process begins.
* source : http://www.lexisnexis.com/applieddiscovery/lawlibrary/whitePapers/ADI_WP_LegalHolds.pdf
10. The Sedona Conference®
Best Practices Recommendations & Principles for
Addressing Electronic Document Production
1. Electronically stored information is potentially discoverable under Fed. R. Civ. P. 34 or its state
equivalents. Organizations must properly preserve electronically stored information that can
reasonably be anticipated to be relevant to litigation.
2. When balancing the cost, burden, and need for electronically stored information, courts and
parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its
state equivalents, which require consideration of the technological feasibility and realistic costs of
preserving, retrieving, reviewing, and producing electronically stored information, as well as the
nature of the litigation and the amount in controversy
3. Parties should confer early in discovery regarding the preservation and production of
electronically stored information when these matters are at issue in the litigation and seek to
agree on the scope of each party’s rights and responsibilities
4. Discovery requests for electronically stored information should be as clear as possible, while
responses and objections to discovery should disclose the scope and limits of the production
5. The obligation to preserve electronically stored information requires reasonable and good faith
efforts to retain information that may be relevant to pending or threatened litigation. However, it
is unreasonable to expect parties to take every conceivable step to preserve all potentially
relevant electronically stored information
6. Responding parties are best situated to evaluate the procedures, methodologies, and
technologies appropriate for preserving and producing their own electronically stored
information
7. The requesting party has the burden on a motion to compel to show that the responding party’s
steps to preserve and produce relevant electronically stored information were inadequate
11. The Sedona Conference®
Best Practices Recommendations & Principles for
Addressing Electronic Document Production
8. The primary source of electronically stored information for production should be active data and information.
Resort to disaster recovery backup tapes and other sources of electronically stored information that are not
reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs
and burdens of retrieving and processing the electronically stored information from such sources, including the
disruption of business and information management activities
9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review,
or produce deleted, shadowed, fragmented, or residual electronically stored information
10. A responding party should follow reasonable procedures to protect privileges and objections in connection with
the production of electronically stored information
11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored
information by using electronic tools and processes, such as data sampling, searching, or the use of selection
criteria, to identify data reasonably likely to contain relevant information
12. Absent party agreement or court order specifying the form or forms of production, production should be made
in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into
account the need to produce reasonably accessible metadata that will enable the receiving party to have the
same ability to access, search, and display the information as the producing party where appropriate or
necessary in light of the nature of the information and the needs of the case
13. Absent a specific objection, party agreement or court order, the reasonable costs of retrieving and reviewing
electronically stored information should be borne by the responding party, unless the information sought is not
reasonably available to the responding party in the ordinary course of business. If the information sought is not
reasonably available to the responding party in the ordinary course of business, then, absent special
circumstances, the costs of retrieving and reviewing such electronic information may be shared by or shifted to
the requesting party
14. Sanctions, including spoliation findings, should be considered by the court only if it finds that there was a clear
duty to preserve, a culpable failure to preserve and produce relevant electronically stored information, and a
reasonable probability that the loss of the evidence has materially prejudiced the adverse party
12. Discussion Points
• Legal professionals don’t fully understand information
technology and the extent of their requests. How does
this impact IT/IS?
• Using cost-shifting as an effective tool to reducing e-
Discovery requests.
• Why would my company need a data retention policy?
• Is data governance important to managing litigious
corporate data?
• Ethical, practical, and efficient data retention
• Does it exist?
• Who’s managing it?
