1. #16PACE Preparing For The Inevitable... How To Be Ready When The Lawsuit Comes And Steps To Proactively Limit Corporate Inconvenience And Liability Mitchell N. Roth, Esq. Founding Member ROTH DONER JACKSON, PLC Michael Yager Vice-President, eDiscovery RESEARCH DATA, INC. 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

2. #16PACE Lawsuits... They’re Coming What are company’s obligations in the wake of a lawsuit?? Mostly concerns Electronically Stored Information (“ESI”). –What are obligations during initial phase of lawsuit? –What are obligations during pendency?? –What can be done to make life easier (and less expensive)??? 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

3. #16PACE 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

4. #16PACE The Challenge – Put Simply “Keeping the Genie Contained” by J. Redgrave, A. Cosgrove, and D. Bruneau 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

5. #16PACE ESI Preservation Strategies There are two ways to manage the exposure –By taking some basic, proactive steps so that your organization can manage the risks and exposures of this world –By ignoring the evolving law and corporate duties and hoping for the best Penalties / sanctions for doing so?? 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

6. #16PACE Avoid Missteps 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

7. #16PACE Clear-View Technologies Fidelity Nat’l Title Insurance Company Long Bay Management Company, Inc. 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

8. #16PACE Managing Corporate Exposure in a Litigious America Basic Duties Are Born at the Anticipation of Litigation 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

9. #16PACE Addressing Basic Duties Get lawsuit into hands of C-Level officer. –Pre-service obligation? –Pre-filing obligation? Notify legal counsel. 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

10. #16PACE Addressing Basic Duties Get lawsuit into hands of C-Level officer. –Pre-service obligation? –Pre-filing obligation? Notify legal counsel. Discuss Document Retention and Destruction Policies in Place. 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

11. #16PACE Document Retention and Destruction – The Foundation of Cost Control Before we address the specifics of managing the duties attendant litigation, let’s make a quick stop to discuss the foundation of cost control 1 Develop a written document retention and destruction policy – and implement it! 2 Hanging on to years of emails and other data that does not serve the needs of business or law creates exposure to enormous costs! 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

12. #16PACE Document Mapping in Advance: Making Life Easier Knowing where your information is before a crisis keeps things simple –IT Architecture (where are all the possible locations of data) –Custodian Architecture (Where can custodian-generated information be?) –What are the preservation “switches” that can be turned on? –Finally, where does the lawsuit and the above intersect? 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

13. #16PACE Types of ESI Identify company paper and electronic files and determine in what medium these documents are available. –Paper? –Electronic documents? –Emails? –Other formats? 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

14. #16PACE Notice to Employees Litigation Hold Memo – Notifies key employees of obligation to retain documents and halt destruction –Distributed to senior management –Non “key-players” who may have relevant documentation 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

15. #16PACE Litigation Hold Memo Sample Provision Therefore, until further notice from me, you must not destroy, discard, alter or delete potentially relevant documents and electronically stored information. These documents include any of the following: Documents relating to calls made to Mr. Jones, including campaign records, and his telephone number (555) 555-5555; Documents relating to Mr. Jones’ consent to receive calls; Documents relating to requests made by Mr. Jones to be put on the Company’s Do-Not-Call List; Documents relating to scrubbing telephone numbers against the National Do-Not-Call list; Documents relating to the Company’s compliance with the TCPA; All call records including manifests and dialer records; Documents relating to any complaints made by Mr. Jones; and Communications with Mr. Jones, if any. 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

16. #16PACE What can you do to be proactive and manage these exposures? _ First and foremost, reduce the data (document retention/destruction policy) –Have a procedure and a protocol in place for when the litigation trigger is pulled, or anticipated to be pulled –Have key company players ready to immediately implement steps to reduce exposure 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

17. #16PACE The Focus Focus on where the exposure is at –Preservation proactivity –Key custodian driven – keep it simple –Support company counsel at the earliest possible moment –Understand what needs to be done in advance, as opposed to reacting to litigation all the way through (the costs will be exponentially more when reacting) 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

18. #16PACE Checklist for Proactive Action Call action team together for preservation execution Talk with IT about their role Discuss with appropriate manager who key custodians are Issue litigation holds to key custodians Loop in company counsel to discuss what issues may be at play and what company facts (documents) may speak to those issues Decide to preserve in place or through collection 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL

19. #16PACE Preparing For The Inevitable... How To Be Ready When The Lawsuit Comes And Steps To Proactively Limit Corporate Inconvenience And Liability Mitchell N. Roth, Esq. ROTH DONER JACKSON, PLC (703) 485-3536 mroth@rothdonerjackson.com Michael Yager RESEARCH DATA, INC. (804) 591-3328 michael.yager@researchdata.com 2016 PACE CONVENTION & EXPO | APRIL 3-6, 2016 | ORLANDO, FL