This document discusses trends in electronic discovery (eDiscovery) in 2011. It notes that the volume of electronically stored information is growing exponentially, creating more legal and compliance challenges. Courts are also demanding more sophisticated approaches to eDiscovery. The document recommends that companies take control of their eDiscovery processes, use technology to help manage electronically stored information, and be proactive in order to avoid high costs when responding to litigation and discovery requests reactively. It emphasizes that people, processes, and technology all need to be aligned to effectively handle eDiscovery obligations.

1. eDiscovery 2011:
Trends, Risks and Best Practices
July 14, 2010
EMC & Kahn Consulting Inc.
EMC CONFIDENTIAL—INTERNAL USE ONLY. 1

2. Introductions
Randolph A. Kahn, Esq.
Jim Shook, Attorney, EMC
Karthik Kannan, Sr. Dir., EMC
EMC CONFIDENTIAL—INTERNAL USE ONLY. 2

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. 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. 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. 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. 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. 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. 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. Employees Aren’t Getting it
“When
you come
to a fork
in the
road,
take it.”
Yogi Berra

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. 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. Thank you!
Randolph A. Kahn, ESQ.
rkahn@kahnconsultinginc.com
847-266-0722
EMC CONFIDENTIAL—INTERNAL USE ONLY. 13