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ITS 833 – INFORMATION GOVERNANCE

Chapter 8

IG and Legal Functions

Dr. Omar Mohamed

CHAPTER GOALS AND OBJECTIVES

What is the key functional

area for IG impact?

How does IG impact legal functions in an organization?

What are the Federal Rules of Civil Procedure (FRCP)?

How is e-discovery affected by the FRCP?

Outline the holding of Zubulake v.

UBS

Know the facts and how it affects IG and e-discovery

What are currently e-discovery techniques

CHAPTER GOALS AND

OBJECTIVES…Continued

What is the e-discovery

reference model?

What is it used for?

How does IG impact E- Discovery?

What is a record retention policy?

What are the benefits of a record retention policy?

What is predictive coding

What case law impacted the use of predictive coding?

What is Technology Assisted Review

What are the 8 steps to defensible disposition of information?

Key Legal Processes Impacted by IG

E-Discovery

Legal Hold Notification

Defensible Disposition

Use of new technology to comply with E-discovery

“Discovery”:

Pretrial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence

from the other party or parties by means of discovery devices such as a request for answers to Interrogatories, Requests for Production of Documents, Request for Admissions and

depositions. Discovery can be obtained

from non-parties using subpoenas. When a discovery request is objected

to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.

Wikipedia https://en.wikipedia.org/wiki/Discovery_(law)

E-DISCOVERY

The Federal

Rules

Civil

Procedure govern civil proceedings in the United States district courts. Their purpose is "to secure the just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1.

The rules were first adopted by order of

the Supreme Court on

December 20, Congress on

1937, transmitted to

January 3, 1938,

and effective

September 16, 1938.

http://www.uscourts.gov/rules-policies/current-rules- practice-procedure/federal-rules-civil-procedure

RELEVANT 2006 CHANGES TO THE RULES OF CIVIL PROCEDURE

Revisions applicable to preservation of electronic records in the litigation process

Revisions applicable to the discovery of electronic records in the litigation process

Applicable to “ESI”- Any information that is

created or stored in electronic form

GOAL of 2006 revision:

Recognize importance of ESI

Respond to increasingly prohibitive costs

of document reviews

Protection of privileged information

FRCP AMENDED 2006 ARE APPLICABLE TO WHAT?

Cases in Federal Court

Civil Cases

All types of e-documents stored on all types of storage devices and communication devices

All content on those devices including metadata

Consider the Impact of “Big Data”

The average Employee creates roughly 1 gig of data annually (and growing)

Costs associated with “dark data”

Unknown or useless data

Identify which data is important and relevant and classify, prioritize, and schedule the systematic disposition of other data in a legally defensible way

Statistics: Approximately 25 % has real business value. 5 % required to be retained as business records. 1% retained due to litigation hold.—On the average 69% has no business, legal or regulatory value, and could be a legal liability to the company

REVISED FEDERAL RULES OF CIVIL PROCEDURE

How does this involve IG ?

IG must make sure information is organized in a way that it can be accessed quickly

FRCP 1 – Scope and Purpose: To secure the just, speedy, and

inexpensive determination of every action.

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for- dummies-cheat-sheet.html(accessed January 20, 2018)

FRCP 1

Rule 1. Scope and Purpose

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

REVISED FEDERAL RULES OF CIVIL PROCEDURE

How does this involve IG

Court expects IT and network literacy of both sides, so that pretrial conferences regarding discoverable evidence are productive

Pretrial

Conferences, Management.

FRCP 16 –

Scheduling; Guidelines

for preparing for and

managing the e-discovery process.

(Volonino and Reddpath, e-Discovery for Dummies,

www.dummies.com/how-to/content/ediscovery-for-dummies- cheat-sheet.html(accessed January 20, 2018)

FRCP 16

Rule 16. Pretrial Conferences; Scheduling; Management

PURPOSES OF A PRETRIAL CONFERENCE. In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as:

expediting disposition of the action;

establishing early and continuing control so that the case will not be protracted because of lack of management;

discouraging wasteful pretrial activities;

improving the quality of the trial through more thorough preparation; and

facilitating settlement.

Subsections of FRCP 16 omitted from this slide

SANCTIONS.

In General. On motion or on its own, the court may issue any just orders, including those

authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party or its attorney:

fails to appear at a scheduling or other pretrial conference;

is substantially unprepared to participate—or does not participate in good faith—in the conference; or

fails to obey a scheduling or other pretrial order.

(2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses—including attorney's fees—incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.

NOTES

REVISED FEDERAL RULES OF CIVIL PROCEDURE

FRCP 26 – Duty to Disclose; General Provisions Governing Discovery

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-

to/content/ediscovery-for-dummies-cheat-sheet.html (accessed January 20, 2018)

How does this involve IG ?

Protects litigants from costly and burdensome discovery requests, given certain guidelines

FRCP 26

Rule 26. Duty to Disclose; General Provisions Governing Discovery Rule 26 (3)(b)(2) Limitations on Frequency and Extent.

(A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule

30. By order or local rule, the court may also limit the number of requests under Rule 36.

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.

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:

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;

the party seeking discovery has had ample opportunity to obtain the information

by discovery in the action; or

the proposed discovery is outside the scope permitted by Rule 26(b)(1).

REVISED FEDERAL RULES OF CIVIL PROCEDURE

FRCP 26(a)(1)(c) Requires initial discovery to be made no later than 14 days after initial meeting(Rule 26(f).

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies-cheat-

sheet.html (accessed January 20, 2018)

How does this involve IG ?

IG must make sure information is organized in a way that it can be

accessed quickly

FRCP 26(A)(1)(C)

(C) Time for Initial Disclosures—In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.

REVISED FEDERAL RULES OF CIVIL PROCEDURE

FRCP 26(b)(2)(B): First introduces the concept of not reasonably accessible ESI. Provides procedures for shifting the cost of accessing not reasonably accessible ESI to the requesting party

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies-cheat- sheet.html (accessed January 20, 2018)

How does this involve IG

IG must justify why this ESI is not reasonably accessible

FRCP 26 (b)(2)(B)

FRCP 26 (b)(2)(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.

FRCP 26(b)(2)(C) (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:

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;

the party seeking discovery has had ample opportunity to obtain the

information by discovery in the action; or

the proposed discovery is outside the scope permitted by Rule 26(b)(1)

REVISED FEDERAL RULES OF CIVIL PROCEDURE

FRCP 26(b)(5)(B): Gives Court a clear procedure for settling claims when you hand over ESI to requesting party that you shouldn’t have.

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for- dummies-cheat-sheet.html (accessed January 20, 2018)

How does this involve IG

 IG should have clear rules for disposing of information that you

should not have

FRCP 26 (b)(5)(B)

FRCP 26 (b)(5)(B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

REVISED FEDERAL RULES OF CIVIL PROCEDURE

FRCP 26(f): Requires parties to meet within 99 days of filing suit and at least 21 days before scheduling conference.

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies-cheat-

sheet.html (accessed January 20, 2018)

How does this involve IG

IG must make sure information is organized in a way that it can be accessed quickly

FRCP 26(f)

FRCP 26(f) Conference of the Parties; Planning for Discovery.

Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under

Conference Content; Parties’ Responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.

Discovery Plan. A discovery plan must state the parties’ views and proposals on:

what changes should be made in the timing, form, or requirement for disclosures under including a statement of when initial disclosures were made or will be made;

the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;

any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

any issues about claims of privilege or of protection as trial-preparation materials, including—if the

parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under ;

what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and

any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).

Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule:

require the parties’ conference to occur less than 21 days before the scheduling conference is held or a

scheduling order is due under Rule 16(b); and

require the written report outlining the discovery plan to be filed less than 14 days after the parties’ conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference.

REVISED FEDERAL RULES OF CIVIL PROCEDURE

FRCP 33 – Interrogatories to parties: Gives definitions of business e- records that are discoverable and the right of opposing parties to request and access them.

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies-cheat- sheet.html(accessed January 20, 2018)

How does this involve IG

IG must have clear policy for retention and justifiable procedure for destruction

FRCP 33-Interrogatories to Parties

IN GENERAL.

Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1) and (2).

Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.

ANSWERS AND OBJECTIONS.

Responding Party. The interrogatories must be answered:

by the party to whom they are directed; or

if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party.

Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.

Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely

objection is waived unless the court, for good cause, excuses the failure.

Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections.

USE. An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence.

OPTION TO PRODUCE BUSINESS RECORDS. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:

specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify

them as readily as the responding party could; and

giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.

REVISED FEDERAL RULES OF CIVIL PROCEDURE

FRCP37 – Sanctions: Safe Harbor Rule. Keeps the court from imposing sanctions when ESI is damaged or lost through routine “good faith” operations.

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies- cheat-sheet.html (accessed January 20, 2018)

How does this involve IG

IG must have good legally defensible document management program

FRCP 37 - Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

FRCP 37(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. If

electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

presume that the lost information was unfavorable to the party;

instruct the jury that it may or must presume the information was unfavorable to the party; or

dismiss the action or enter a default judgment.

REVISED FEDERAL RULES OF CIVIL PROCEDURE

How does this involve IG

 IG must make sure information is organized and identified

FRCP 34 – Producing documents, Electronically Stored Information and Tangible Things or Entering onto Land for Inspection and Other Purposes. Addresses the format for requests and require that e- records be accessible without undue difficulty.

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies-cheat- sheet.html (accessed January 20, 2018)

FRCP 34

Producing Documents, Electronically Stored Information, and Tangible Things,

or Entering onto Land, for Inspection and Other Purposes

FRCP 34 (a) IN GENERAL. A party may serve on any other party a request within the scope of Rule 26(b):

to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:

any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or

any designated tangible things; or

(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

(FRCP 34 (b) PROCEDURE.

Contents of the Request. The request:

must describe with reasonable particularity each item or category of items to be inspected;

must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and

may specify the form or forms in which electronically stored information is to be produced. FRCP 34(b) (2) Responses and Objections.

Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or — if the request was delivered under Rule 26(d)(2) — within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for

inspection specified in the request or another reasonable time specified in the response.

FRCP 34 (Continued)

Producing Documents, Electronically Stored Information, and Tangible Things,

or Entering onto Land, for Inspection and Other Purposes

FRCP 34 (b)(2) D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form— or if no form was specified in the request—the party must state the form or forms it intends to use.

(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

A party need not produce the same electronically stored information in more than one form.

Zubulake v. U.B.S. Warburg 22 Ill.217 F.R.D. 309, 13 ILRD 578, 2003 ILRC 1815, 91 FEP Cases 1574 (S.D.N.Y. 2003).

OPINION: The defendant was ordered to produce, at its own expense, all responsive email existing on its optical disks, servers, and five backup tapes as selected by the plaintiff. The court would only conduct a cost-shifting analysis after the review of the contents of the backup tapes.

After the results of the sample restoration, both parties wanted the other to fully pay for the remaining backup email. The sample cost the defendant about $19,003 for restoration but the estimate costs for the production was $273,649, including attorney and paralegal review costs. After applying the seven–factor test, it determined that the plaintiff should account for 25 percent of the restoration and searching costs, excluding attorney review costs.

https://en.wikipedia.org/wiki/Zubulake_v._UBS_Warburg

SUMMARY OF FACTS: In an employment discrimination suit against her former employer, Laura Zubulake, the plaintiff, argued that key evidence was located in various emails exchanged among employees of UBS, the defendant. Initially, the defendant produced about 350 pages of documents, including approximately 100 pages of email. However, the plaintiff alone had produced approximately 450 pages of email correspondence. The plaintiff requested USB to locate the documents that existed in backup tapes and other archiving media.

The defendant, arguing undue burden and expense, requested the court to shift the cost of production to the plaintiff. The court stated that whether the production of documents is unduly burdensome or expensive "turns primarily on whether it is kept in an accessible or inaccessible format". The court concluded that the issue of accessibility depends on the media on which data are stored. It described five categories of electronic repositories: (1) online data, including hard disks; (2) near-line data, including optical disks; (3) offline storage, such as magnetic tapes; (4) backup tapes; (5) fragmented, erased and damaged data. The last two were considered inaccessible, that is, not readily available and thus subject to cost-shifting. The court, then discussing the Rowe decision (the balance test), concluded that it needed modification and created a new seven-factor test.

https://en.wikipedia.org/wiki/Zubulake_v._UBS_Warburg

Zubulake v. U.B.S. Warburg 22 Ill.217 F.R.D.

309, 13 ILRD 578, 2003 ILRC 1815, 91 FEP Cases

1574 (S.D.N.Y. 2003)….continued

ZUBULAKE IV: During the restoration effort, as described in the court's prior opinions (see Zubulake I and III), the parties learned that some backup tapes were no longer available. The parties also concluded that relevant emails created after the initial proceedings had been deleted from UBS's email system and were only accessible on backup tapes. The plaintiff then sought an order requiring UBS to pay for the total costs of restoring the remaining backup tapes. In addition, Laura Zubulake sought an adverse inference instruction against UBS and the costs for re- deposing some individuals due to the destruction of evidence.

The court found that the defendant had a duty to preserve evidence since it should have known that it would be relevant for future litigation. However, the court concluded that the plaintiff failed to demonstrate that the lost evidence supported the adverse inference instruction claim. The court ordered the defendant to cover the costs as claimed by the plaintiff.

Zubulake v. U.B.S. Warburg 22 Ill.217 F.R.D. 309, 13 ILRD 578, 2003 ILRC 1815, 91 FEP Cases 1574

(S.D.N.Y. 2003)….continued

ZUBULAKE V: Here, the court concluded that UBS had failed to take all necessary steps to guarantee that relevant data was both preserved and produced, and granted the plaintiff's motion for sanctions. Specifically, the court ruled that the jury would be given an adverse inference instruction, sought in Zubulake IV, due to the deleted evidence (emails and tapes) and inability to recover key documents during the course of the case. Furthermore, it ruled that UBS was accountable for paying the costs of any depositions or re-depositions required by its late production of email, and that UBS reimburse plaintiff for the costs of the motion. Laura Zubulake contended that UBS, which recovered some of the deleted relevant emails, prejudiced her case by producing recovered emails long after the initial document requests. Additionally, parts of important communication exchanged between key parties was never recovered, including an email that would reveal a relevant conversation about the employee.

In addition, the court noted that the defense counsel was partly to be blamed for the document destruction because it had failed in its duty to locate and preserve relevant information. In addressing the role of counsel in litigation, the court stated that "[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched". Specifically, the court concluded that attorneys are obligated to ensure all relevant documents are discovered, retained, and produced. Further, the court suggested that litigators must guarantee that relevant documents are preserved by instituting a litigation hold on key data, and safeguarding archival media.



Finally, the court concluded that the defendant deliberately acted in destroying relevant information and failing to follow the instructions and demonstrate care on preserving and recovering key documents. As a result, Judge Shira Scheindlin ordered an adverse inference instruction against UBS Warburg. In the final instructions to the jury the Court instructed in part, "[i]f you find that UBS could have produced this evidence, the evidence was within its control, and the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would have been unfavorable to UBS." In addition, the court awarded plaintiff monetary sanctions for reimbursement of costs of additional re-depositions and of the motion leading to this opinion, including attorney fees. The jury found in Zubulake's favor on both claims awarding compensatory and punitive awards.

https://en.wikipedia.org/wiki/Zubulake_v._UBS_Warburg

Zubulake v. U.B.S. Warburg 22 Ill.217 F.R.D. 309,

13 ILRD 578, 2003 ILRC 1815, 91 FEP Cases 1574

(S.D.N.Y. 2003)….Electronic Discovery Issues

The case has set important practices relating to both the legal and technical aspects of electronic discovery, as the relevant communication among interested parties was available in digital form. The main issues raised were:



The scope of a party's duty to preserve digital evidence during the course of litigation or even when first acknowledged that a chance of litigation exists;



Lawyer's duty to monitor their clients' compliance with electronic

data preservation and production (litigation hold);



Data sampling, so that knowledge about costs and effectiveness of the recovering process are known in advance;



The ability for the disclosing party to shift the costs to the requesting party of recovering inaccessible media (backup tapes, for example);



The imposition of sanctions for the spoliation of digital evidence.

Zubulake v. U.B.S. Warburg 22 Ill.217 F.R.D.

309, 13 ILRD 578, 2003 ILRC 1815, 91 FEP

Cases 1574 (S.D.N.Y. 2003)

References

Cohen, Adam I.; Lender, David J. (2003). Electronic Discovery: Law and Practice. Aspen Publishers Online, 2003. ISBN 0-7355-3017-3.

Marchetta, Anthony J.; Scordo, John P. (Dec 2004). "The Duty To Preserve Backup Tapes After Zubulake V" (PDF). Corporate Counsel. Retrieved 2010-02-20.

Sautter, Ed (Oct 2005). "The New Rules on E-disclosure". New Law Journal (7198).

Iqbal, Mohamed (Jul 2005). "The New Paradigms of E-discovery and

Cost-shifting". Defense Counsel Journal (45).

Bauccio, Salvatore J. (2007). "The E-Discovery: Why and How E-mail is Changing the Way Trials Are Won and Lost". Duquesne Law Review (72).

Scheindlin, Shira. "Judge Scheindlin Interview on Records and Compliance Management". ARMA 2006 International Conference and Expo. Podcast. Retrieved 2010-02-20.

"Electronic Discovery Law". website. Retrieved 2010-02-20.

E-DISCOVERY REFERENCE MODEL

Visual Planning Tool Created by EDRM.net to assist in identifying and clarifying the

stages of the e-discovery process.

7 Steps in the E-Discovery Process

Present at trial if your case hasn’t

settled.

Judges have little to no patience with lawyers who appear before them

not understandi

ng e-

discovery and the ESI

of their clients or the opposing

side.

Clawback the ESI that

you disclosed to

the opposing

party that you should

have filtered out, but didn’t.

Clawback is

not unusual, but you have to work at getting clawback approved, and the court may deny it.

Produce the remaining ESI, after filtering out

what’s irrelevant, duplicated,

or privileged. Producing ESI in native format is common.

Review and analyze the filtered ESI for privilege

because privileged ESI is not discoverabl e, unless

some exception kicks in.

Process and

filter the

ESI to remove the excess and duplicates. You reduce costs by reducing the volume of ESI that moves to the next stage in the e-discovery process.

Identify the relevant

ESI,

preserve any so it cannot be altered or destroyed, and collect all ESI for further review.

Create and retain ESI

an enforceable electronic records retention policy and electronic records management

(ERM)

program. Enforce the policy and monitor compliance with it and the ERM program.

according to

GUIDELINES FOR E-DISCOVERY PLANNING

Implement an IG Program

Inventory ESI

Create and Implement a comprehensive records retention policy-including email

a legal bold policy that is enforceabl e, auditable and legally defensible

Leverage Technology

Develop and Execute e- discovery plan

IG IMPACT ON E-DISCOVERY

Cost Reduction

Risk Management

Better Litigation win rates

Strategic Planning for Matters based on Merit

Strategic Planning for Matters based on Cost

Litigation Budget Optimization

The Legal Hold Process….

How Should It Work?

ESI must be preserved in place and no longer edited or altered so it can be reviewed during discovery

How Does It Work?

Just the opposite of how it should! Employees quickly edit and delete relevant e-documents that may implicate them

what is it?

Formal system of policies, processes, and controls to notify key employees of civil lawsuits or potential suits, and the set of documents that must be put on legal hold.

LEGAL HOLD NOTIFICATION

This is a very discreet IG project

Absolute minimum an organization should do to meet the legal guidelines Where to start?

KEY: Must not be outsourced!

Get over the perception that this is too expensive and too difficult to deploy

Define the Requirements

Define the Ideal Process

Select the Technology

DEFENSIBLE DISPOSITION OF INFORMATION

Begin with legal hold management.

Law requires a “reasonable effort”

Prioritize what information to delete

Don’t try to delete across the entire organization at

once

Put systematic rules in place for deletion

Hint: Most companies begin with email

DESTRUCTIVE RETENTION PROGRAM

An approach to e-mail archiving where e-mail messages are retained for a limited time followed by the permanent manual or automatic deletion of the messages from the organizational network, so long as there is no litigation hold or e-mail has not been declared a record.

SO…. How long is the retention period?

Varies by Company.

25 % of companies delete after 90 days

Heavily regulated industries archive for 1 year

Traditionally 7 years but changing.

What Can I Do To Make E- Discovery Easier?

Apply newer technologies

Can speed up the document review process

Improve the ability to be responsive to discovery requests

Examples:

Predictive Coding

Technology Assisted Review

PREDICTIVE CODING

Used for document review-Teaches software what to look for.

Software with the goal of reducing the total group of documents that a legal team needs to review manually by finding the gross set of documents that are relevant or responsive to the case at hand – reducing billable attorney hours and costs.

Technologies Involved?

Machine Learning (AI)

Workflow Software

Text Analytics

Keyword Searches

Pattern Matching

Sampling

Filtering

LEGAL MILESTONES IN PREDICTIVE CODING FOR E-DISCOVERY

Global Aerospace, Inc., et al. v. Landow Aviation, PL et al. Consol. Case No. CL 61040, 2012 WL 1431215 (Va. Cir. Ct. Apr. 23, 2012).

The first State Court Order approving the use of Predictive Coding by the producing party, over the objection of the requesting party, without prejudice to the requesting party raising an issue with the Court as to the completeness or the contents of the production, or the ongoing use of Predictive Coding.

Basic argument favoring predictive coding was that predictive coding is capable of locating upward of 75% of the potentially relevant documents and can be effectively implemented at a fraction of the cost and time of linear review and keyword searches.

TECHNOLOGY-ASSISTED REVIEW

(Computer-Assisted Review)

This is not the same thing as predictive coding!

Includes aspects of nonlinear review – culling, clustering, and de-duplication

Does not meet the requirements of predictive coding

Mechanisms of TAR

Rules Driven-Team creates a set of rules for document review which is essentially a coding manual which are fed into the software

Facet Driven – Tool analyzes documents for potential items of interest or groups potentially similar items

Propagation Based – Propagating what is known based on a sample set of data to the rest of the documents.

DEFENSIBLE DISPOSITION

Technology, policies, procedures and management controls designed to ensure that records are created, managed, and disposed of at the end of their life cycle.

Why do we need to do this?

Big Data – huge growth of information

Record and Information Management isn’t working well

Volumes of information are adversely affecting effectiveness

DEFENSIBLE

DISPOSITION…continued

New Information Custodians---it’s a problem

Users aren’t trained on records management principles and have

no incentive to manage or dispose of records

Use of proper technology to manage digital records properly

Auto-classification and analytics

Remember –You must defend your policy. It must be

defensible…not perfect

Select practical assessment/classification process

Develop/document essential aspects of the disposition program Develop a mechanism to modify, alter or terminate components when required

Assess content for eligibility for disposition

Test, validate and refine the efficacy of content assessment Apply disposition methodology to content as necessary Repeatedly, verify and document the efficacy and results

8 STEPS TO DEFENSIBLE DISPOSITION

Define a reasonable diligence process

RECORD RETENTION

How to Increase Defensibility of Destroying Records?

Authority to destroy records is identified on retention schedule

Retention requirements have been met

Records are slated for destruction in normal course of business

There are no exiting legal or financial holds

All records of the same type are treated consistently

and systematically

Retention Policy

Meet the legal limitation period

Conduct research in each jurisdiction (venue) where the business

operates

Maintain a records retention schedule

Note: Retention schedules are developed for records series, categories, functions or systems and not for individual records, i.e. Functional Retention Schedule, or Master Retention Schedule

Record Retention Schedules are kept for ALL records, not just

electronic records

BENEFITS OF A RETENTION SCHEDULE

Reduces Legal Risk and liability exposure

Supports legally defensible records management program Improves IG thru uniformity and standardization

Improves search quality and reduces search time

Provides higher quality records information and decision support

Prevents inadvertent, malicious or premature destruction of records Improves accountability for Life Cycle Management of records Improves security of confidential records

Reduces and minimizes costs for maintaining records Determines which records have historic value

Saves hardware utility and labor costs by deleting records after their life span

Optimizes use of online storage and access resources

THE END