Christian Liipfert Keynote Masters Conference for Legal Professionals Houston 2011
•Download as PPTX, PDF•
0 likes•245 views
Keynote presentation at the Masters Conference in Houston on August 16, 2011. Discusses e-discovery generally and aspects of energy sector that raise different e-discovery issues. Argues that spanning the divide requires e-discovery professionals to know more about information governance practices generally. (and that others involved in information governance understand IT and e-discovery better, including the business lawyers and the compliance professionals, as well as the business unit leaders.
Recommended
More Related Content
Viewers also liked
Viewers also liked (12)
Similar to Christian Liipfert Keynote Masters Conference for Legal Professionals Houston 2011
Similar to Christian Liipfert Keynote Masters Conference for Legal Professionals Houston 2011 (20)
Recently uploaded
Recently uploaded (20)
Christian Liipfert Keynote Masters Conference for Legal Professionals Houston 2011
- 2. Masters Conference – Spanning the e-Discovery Divide Keynote Houston, TXAugust 16, 2011 Christian Liipfert Creative Commons US Attribution Non-Commercial Share Alike License 3.0 Unported
- 3. Framework
- 5. San Bruno, CA September 9, 2010
- 6. Inspection Records For 60 Miles Of SDG&E Pipeline Missing San Diego Gas & Electric … admits it cannot find inspection records for more than 60 miles of natural gas pipeline. April 15, 2011 http://www.10news.com/news/27567262/detail.html
- 12. The amendment would require all … members of designated contract markets … to create and maintain a record of all oral and written communications that lead to the execution of deals in a commodity interest …. The proposed rule would require these communications to be preserved for at least five years electronically.
- 14. Mobility Discovery v. disclosure Privacy Blocking
- 18. The Divide
- 19. Blogs Projects Post-Its™ SharePoint Privileged Notes Tax Corporate Lunch invites Customers Trade secrets External media Legacy stuff HR stuff Off-site storage Facebook Text messages Conversations Gmail Hotmail Confidential Network shares Maintenance records Drafts Photographs Contracts Financials iPads Models Documents Structured data Geodata Backup tapes Operations data DVDs LinkedIn Calendars Twitter Home computer Metadata Wikis IMs Vendors Building access records Recycle bin eDocuments Personal Records Payroll eMail Dumpster Copies CCTV PDFs Data warehouses Cloud Voice mail CDs Drawings Invoices psts Smart phones Thumb drives Microfiche Video InformationManagement
- 21. Christian@LiipfertConsulting.com Christian Liipfert Consulting, LLC
- 22. Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both. 18 USC § 1519
Editor's Notes
- Introduction to Masters Conference presentation on August 16, 2011, with the theme of “Strategies for Spanning the E-Discovery Divide.”The views and opinions expressed herein are mine, and not necessarily those of my former employers, their subsidiaries or affiliates.The three aims of the presentation were to provide a framework for the remainder of the conference, identify what e-discovery issues are common to most industries, and what aspects of the energy sector raise special e-discovery concerns, and to highlight the divide between the knowledge that people handling e-discovery have versus what’s necessary to resolve the problems of information governance that lead to higher e-discovery expenses, among other things.
- The discussion begins with a review of the Electronic Discovery Reference Model. This maps the processes, common to most industries, low responding to the initiation of litigation or an investigation. First, after identifying the targeted custodians, one then issues the old notices and begins collection procedures after the material is then collected and processed and reviewed for relevance and privileged and analyze for impact on the case and then prepared for production and ultimately authentication and presentation. During the life of this model, the volume of information subject to these he discovery processes hopefully diminishes, and the relevance of the retained material increases. During this process is important that you document you did so that if questions arise later, you can demonstrate the robustness of your process.
- Here is a photo of the Macondo incident in April of 2010. This killed 11 people and led to the largest oil pollution event in history. Following this incident, the level of scrutiny from the public, the press, the regulators, and shareholders on the activities and operations of people in the energy sector has dramatically increased.
- The top photograph is from a pipeline explosion in California in 2010 where a pipeline through a residential neighborhood exploded killing eight people and destroying 25 homes.
- Here is a headline from one of the news reports, highlighting the fact that the pipeline company could not find inspection reports documenting that inspections of the pipeline had occurred for 64 miles of the 206 miles of pipeline under their ownership and control.Is this really an e-discovery issue?
- Again, following the Macondo incident, the EPA published on a website interactive maps that demonstrate where samples were taken along the Gulf Coast and what the results of the sampling were. This data was being collected and presented well in advance of the matter coming to trial. It also represents a huge volume of data, made available to the public, the plaintiffs, and the regulators.
- What else is different for the energy sector, with implications for e-discovery?This is the blowout preventer from the Macondo well.The energy sector operates with a low ratio of company personnel to contractors. Company personnel may represent less than 10% of the people on the platform, with the remainder being contractors and service providers. This includes the HalliburtonsTransoceans, Camerons and Schlumbergers of the world, including the companies that provide helicopter or food service.It is also common to do these large investments through joint ventures. Do your joint venture agreements address how the various joint venture members will retain and produce documents? Is this an e-discovery issue?So, to, had he deal with the documents that are received or created by your contractors in the course of performing service for you on a project? If there is litigation, use this material within your possession, custody or control? How can you protect against this in advance?
- The energy sector went through a consolidation process in the late 1990s and early 2000s. The merger between BP and Amoco began the process (BP Amoco subsequently acquired Arco, Castrol, and a few other companies), and was followed by the combination of Exxon and Mobil, and Conoco and Phillips, among others.During this consolidation in combination phase, how were the information governance and document management practices reconciled? Were legal holds handle the same way in both companies? Did the retention schedules vary? What about actual practices?
- Following the period of consolidation, there is now the period of disaggregation.How do you divide up the information of a single company? Who gets what? What happens if there is litigation later that requires access to information that is now in the other company?Is this an e-discovery problem?
- One aspect of the energy sector is the presence of trading activities, such as that for natural gas. This is a photo showing traders in front of their monitors. It also refers to a matter in which a trader, Mr. Hunter, was fined over $300 million by the FERC for trying to corner the natural gas market.The CFTC, SEC, and FERC closely regulate the information created in the course of commodity transactions. This is essentially the broker-dealer controls. If you are required to have all this information, how do you deal with it if litigation arises?
- Here is a news blurb on a recent proposal to change the CFTC regulations on telephone records. This requires retaining the tapes of all wireless and wired phone calls (and assumedly text messages, instant messages, voice mails, twitter feeds, etc.) associated with the execution of the deal.How do you go about reviewing five years of tapes of telephone conversations?
- The energy sector operates all over the world, from Alaska and the Gulf of Mexico to Chile Peru Venezuela Angola the North Sea the Middle East Indonesia and Australia.These jurisdictions each have their own unique laws and regulations.Also, due to the nature of the business, employees of an energy company frequently move around. When litigation arises five years later, the key custodians may have been in two or more different countries since the facts that gave rise to the litigation.Is this an e-discovery problem?
- I’ve discuss mobility.Discovery outside the US is not necessarily the same. For instance, in the UK, disclosure is more limited than what you would expect in the US. In civil law countries the practices are considerably different.Privacy in the US is somewhat limited to primarily financial, medical, and credit card information. In Europe, privacy attaches to all personally identifiable information, which is any information that either by itself or together with other information, can lead to the identification of a specific individual, living or dead. There are also extensive privacy regulations in Canada, Mexico, Australia, and Japan, to name a few.There are also blocking statutes, such as the one in France, that makes it a crime to cooperate with a US discovery request that results in information leaving France. A French lawyer was recently convicted for violating the statute by assisting in a US discovery matter.
- One of our main objectives is to avoid having our companies commit a criminal act.
- Here is the indictment of Lauren Stevens, the Associate General Council at Glaxo Smith Kline. She was indicted for violation of various provisions of the federal criminal code in connection with communications that she made (and allegedly did not make) during the course of discussions with the Food & Drug Administration, which was investigating allegations that Glaxo Smith Kline had engaged in improper off-label marketing of one of its drugs. While the case was eventually dismissed, it does highlight two provisions that we should be aware of.The first is 18 USC section 1512, which applies to whoever corruptly destroys documents to avoid prosecution. The statute was amended by Sarbanes-Oxley following the Enron and Arthur Andersen matters in the early 2000s.Sarbanes-Oxley added an additional provision to the federal criminal code which has not received as much attention. This section, 18 USC section 1519, applies to whoever knowingly destroys, alters, or falsifies a document with the intent to influence the proper administration of the matter within the jurisdiction of a department or agency of the US government. Penalties include fines and up to 20 years in federal prison.This is a very broad statute. Given the level of regulations over the energy business, there is little that we do that is not within the jurisdiction of a department or agency of the US government.
- What’s the problem? What’s the divide?The problem is silos.
- Here’s the divide. The people involved in the E. discovery process are normally focused primarily on identifying custodians, issuing old notices, and processing the information collected. They don’t give a lot of thought to what had happened and what information had been received and created in the years before the litigation; they just have to find it.DuPont did a case study of number of years ago in a case involving the production of 75 million documents. DuPont found that more than 50% of those documents had been retained past there destroyed-after date. As a result, DuPont incurred $12 million in unnecessary discovery expenses.But the people involved in a discovery are often not the same people involved in general records management. Do the business people and users fully appreciate the consequences of what they retained and how they retain it? Who advises them? Does this also implicate the company’s Code of Conduct?
- To illustrate, this is the type of structured and unstructured information that fits in that information box. In the years prior to the litigation or investigation coming up, how has all of this information been managed? What has been kept, and where has it been kept? How much of it is duplicate? How much of it is beyond its destroy-after date (> 50%?)? Who is responsible for making sure that information is governed in such a way that it does not create unnecessary risk to the company? One of those risks is the cost of unnecessary discovery expenses.
- So, to span the divide between what actually gets done by the discovery specialists and what is done by a the other folks in the company that received or create information in the years leading up to the litigation, the E. discovery specialists need to be familiar with the records management requirements and IT requirements, as well as the implications for spoliation, obstruction of justice, and other violations of federal criminal law.But it is not just the discovery specialists who need to know more about the larger information governance puzzle. The compliance specialists need to understand the implications of the federal criminal statutes, as well as the normal Code of Conduct provisions, and meeting the requirements of the Federal Sentencing Guidelines. The general lawyers, involved in supporting operations, need to understand the impact of potential litigation in the future upon the contract provisions in the contracts being signed today.And the discovery specialists do not own the information management box. But what happens there has a huge impact on e-discovery expenses. Who owns the information management box? What role do the e-discovery experts take in establishing that ownership by someone.