3 Introduction Few IT professionals understand the complexity of procedural and discovery rules in the context of litigation, and few in-house attorneys understand fully the technical intricacies of IT Corporate counsel are recognizing the need to partner with IT and both now recognize the need to draw from one anothers expertise –Recognition of ITs importance marks a shift toward what must become a more collaborative and team-oriented approach to e- discovery
4 Litigation Task Force Litigation preparedness and response activities are forcing IT and Legal to come together to improve communication and collaboration around e-discovery Organizations are recognizing the importance of coordinating an e- discovery response team to assist in formulating document retention and litigation response policies No one-size fits all approach to these problems. Organizations are searching high and low to find the best alternatives to fit their needs
5 Forming a Litigation Task Force The litigation task force should maintain knowledge of information regarding: Where company data resides How it is maintained How it can be accessed When it is destroyed
6 Litigation Task Force: Roles & Responsibilities Response Team Counsel -Corporate -Discovery -Outside Business Line Managers Human Resources E-Discovery Expert Corporate Records Management IT -Corporate Security
7 ESI Strategy Formation: Who Is Responsible? 35% of US companies attribute responsibility to IT –Up from 18% in 2007 Trend is testament to the technical nature of ESI An ongoing marriage between IT and the legal team is essential to ensure that the plans put in place are adequate, all-encompassing and feasible when a legal crisis breaks –Second Annual ESI Trends Report, Kroll Ontrack (2008)
9 General Communication Considerations When communicating, make sure everyone is on the same page IT and Legal dont speak the same language –ITs strength lies with charts and technical language –Legals strength lies with legalese Use simple talk to convey points –Eliminate acronyms and highly technical or legal language Dont be embarrassed about not understanding the jargon
10 General Communication Considerations Early engagement between IT and Legal is incredibly important –Know who the key people in each department are Meetings are essential: –Develop rapport and break down communication barriers –Keep everyone on the same page regarding what is happening and what resources are needed During these meetings, discuss projects that are coming down the pipeline Speak in-person or via phone – is not always clear –Speaking directly may identify additional information that is needed or identify issues that may have been overlooked
11 General Communication Considerations Establish the goals of each project: –Why are we doing this? –What do we hope to achieve? Avoid side conversations and decisions by keeping open communication Establish written policies and procedures, making them easily accessible to members of both IT and Legal
12 How Should Legal Communicate with IT? Ask! (and take good notes) –Hint: embark on an initiative to prepare joint documentation that includes litigation response Always ask the same question at least twice Always ask more than one IT person Ask the right people, including: –Records management personnel and business owners Bring in an expert when appropriate Include IT in conversations with the companys vendor (if applicable)
13 How is Legal Asking? Beware the language barrier! –Did you pack your Legalese-to-Techie dictionary? Did you hand the clients Techie a copy of the interrogatories and say Answer as best you can?
14 How is Legal Asking? Techie Answer: We had Two Dell PowerEdge 1955 Blade Servers with Quad-Core Intel ® Xeon ® 5000 Sequence processors and 32Gb of Ram powering our workgroup of twenty-five Dell Precision M90 Notebook computers with Intel ® Core 2 Duo processors and 4Gb of Ram. Interrogatory: Please list all systems in use during the time period in question.
15 Who Should Legal Ask?
16 Data Collection Sources: Work with IT to Identify Key Locations Thoroughly interview IT personnel This meeting enables you to get the lay of the land Identify and interview custodians Identify data locations Establish relevant preservation protocols Build partnerships between IT and legal professionals
17 Chain of Custody Maintaining proper chain of custody is absolutely essential –Chain of custody logs answer the "what, who, when, where, and why" questions about the history of the electronic evidence they document Having defensible documentation provides protection from accusations that electronic data may have been intentionally or inadvertently altered IT must understand how to establish chain of custody
18 How Should IT Communicate with Legal? Form dedicated SWAT teams comprised of IT and Legal –Teams should exist for both the introduction and decommission phases of an application On the front-end, teams should communicate the role of any new application to help Legal understand applications role and purpose –Assists during discovery requests On the back-end, teams should communicate the retirement of an application –How long was the application in existence? –What happened to the data? Migrated? Retained? Etc.
19 How Should IT Communicate with Legal? Schedule regular meetings between the head of IT and Legal to update project and technology development –Technology constantly changes – meetings allow both departments to stay on top of the trends Develop information sheets based on each major application within the company that is routinely involved in e-discovery. Each information sheet should include a separate focus for IT, Legal and one general version These sheets describe each application, including: –What it does –What its needed for –How it works, etc.
20 How Should IT Communicate with Legal? Repeat any request received from Legal and double-check what the precise request was –Helps with planning and ensuring work is completed efficiently Clearly establish and define the project timeline Understanding the request fully will help cut down on amounts of non- relevant data returned to Legal –In turn, this will help decrease mistakes and costs
21 IT Can Help Educate Legal IT can help educate counsel as follows: –All operating systems, software applications and hardware formerly and currently in use; –The flow of data into, within and out of the company; –Disk or tape labeling conventions, file name customs, location- saving rules; –Corporate document retention policies and the current enforcement status of those policies; and –Corporate policies regarding employee use of company computers and data
22 Third-Party IT / Legal Liaison Company should have one person who straddles the line between IT and Legal –Should possess a working knowledge of both fields It may be prudent to engage a third-party IT/Legal liaison or expert to facilitate communication –Liaison can offer best practices on consulting and e-discovery management within the organization Working with IT and counsel, these liaisons can be critical to managing collection, and facilitating review and production of responsive data However, there may not always be a budget for an outside expert
24 Data Preservation: Duty to Preserve Preservation triggers: –Notice of litigation = reasonable anticipation Obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation. -Treppel v. Biovail Corp., 2008 WL (S.D.N.Y. April 2, 2008) (citing Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001))
25 Issue Litigation Holds and Communicate with Pertinent Parties Ensure that department heads, IT personnel and all pertinent employees are made aware of the hold. Counsel should also notify legal opponents and relevant third-parties of their duty to preserve potentially responsive documents and data. Upon Notice of Litigation
26 Suspend Routine Disposal Practices Upon Notice of Litigation Issue Litigation Holds and Communicate With Pertinent Parties Make Forensically-Sound Images of Key Hard Drives Work with Opposing Counsel to Define the Scope of Discovery
27 Ensure & Monitor Litigation Hold Compliance Counsel should actively monitor suspension measures and personally ensure compliance Follow-up with key players and new employees who may be affected by the hold Send follow-up notices, especially during prolonged litigation Maintain document of who, what, when and how litigation notices were acknowledged Provide list of custodians to IT and HR to ensure compliance
28 Ensure & Monitor Litigation Hold Compliance A litigation hold should remain in effect until: –All appeals deadlines have tolled and the entered judgment and award is final –A final settlement agreement has been reached and a formal release has been signed by all parties –The case is dismissed with prejudice and no outstanding related claims remain
30 Parting Thoughts & Best Practices Cooperation and communication are essential elements of the relationship which must exist between IT and Legal in order for a corporate ESI policy to be a success Documentation shared by Legal and IT, corresponding to their communication, should be as simple as possible, easily understandable and well-maintained Empower your litigation response team with tools and resources to efficiently identify, locate and preserve discoverable information Plan for discovery!