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Presentation on theme: "Notes accompany this presentation. Please select Notes Page view. These materials can be reproduced only with Gartner's official approval. Such approvals."— Presentation transcript:

1 Notes accompany this presentation. Please select Notes Page view. These materials can be reproduced only with Gartner's official approval. Such approvals may be requested via — Is E-Discovery IT’s Great Unfunded Mandate? French Caldwell

2 … but first a word from our lawyers The information contained in this presentation is intended to place the IT issues involved in e-discovery in the context of an evolving legal landscape. It does not constitute legal advice and should not be taken as such. Consult with and obtain the advice of legal counsel before taking significant action in any pending or anticipated litigation.

3 Here We Go Again! (?) Client Server Y2K E-Commerce E-Discovery Dot.com Boom!

4 What Is Discovery? Discovery: The act of, or process of, finding or learning something that was previously unknown. It is the compulsory disclosure, at a party's request, of information that relates to the litigation. Black's Law Dictionary — Eighth Edition

5 The Discovery Process Request From plaintiff, administrator or regulator Preservation At the hint of demand, this becomes No. 1 Identification Custodians as well as time period Collection Preserve chain of custody Review For privilege, production or redaction Production Agree on format

6 New Court Rules for E-Discovery Went into effect 1 December 2006 Federal Rules of Civil Procedure Requires meetings to discuss e-discovery Requires production of all potentially relevant reasonably accessible data Defines "electronically stored information" Deals with inadvertent waivers of privilege Enables requesting party, in first instance, to specify desired production formats Sets up possible "safe harbor" for lost data

7 The Clock Ticks Quickly Under The New E- Discovery Rules Inventory — Be prepared to know what information is potentially available for discovery – and where it’s located -- for the early meet and confer sessions (90 to 120 days) All data is potentially discoverable. Custodians — A person who may have discoverable information. Mapping information to individuals could save huge amounts of time and money. Subject — Is there a taxonomy in place that can limit the amount of data to be produced to the subject of the cause for action? ( i.e., contract dispute, employment agreement, discrimination, etc.

8 Prepare For Discovery Ahead of Time Legal / IT staff exchange Develop and enforce document retention policy Prepare to communicate preservation hold effectively Monitor and enforce compliance of preservation hold Prepare a 30(b)6 witness Help legal prepare for incoming production

9 Reasonably accessible information: –Active –On-line –"Near-line" –Off-line archives Inaccessible information is generally considered: –Back-up tapes for disaster recovery –Legacy data from obsolete systems –Fragmented data However, courts can compel to produce "not reasonably accessible" information There is reasonable and unreasonable information you may have to produce

10 Creating the Electronically Stored Information Inventory Who generates the record? Who controls the record? How is it used? Where is it stored? When does the record become obsolete and can be destroyed? Who is responsible for its destruction or retention? Discovery Word Documents Excel Spreadsheets PowerPoint Slides

11 What about attorney-client privilege in a digital environment? A very serious problem in e-discovery –Volume –Metadata New rules attempt to address what to do if it happens –Notice –Claw back Best Practice: Review metadata before production –Avoid "quick look"

12 The Two Faces of Metadata As EvidenceIn Practice Must be available per discovery production terms Must be reviewed for privilege Must not be turned over to opposing counsel (attorney/client privilege) "Mining" for it viewed by some as an ethics violation

13 Production Format Considerations Producing party wants to turn over discovery material in the most locked-downed format Demanding party wants material in native format so that it can mine meta data Early meet and confer must yield production formats –Otherwise judge orders production in format used in the normal course of business Metadata issues need to be resolved in meet and confer

14 Retention Policy: Who Decides? Legal Team Retention schedule Approvals Finance Executives Specific legislative mandates Business Users Business process needs Senior Executives Ultimate responsibility Outside Counsel or Specialists Pre-packaged schedules Specific experience IT Technical needs managers

15 Insurance policies Birth, death, marriage Nonrepository documents, hard drive, file stores Tax records Architectural drawings Public infrastructure Employee data Contracts Sales forecasts Medical records Tech documents Software documentation Marketing documents Lab notebooks IP-related Regulatory Wikis Blogs IM Create processes to decrease the amount of content that is saved Deploy the right systems to support these processes Acknowledge some may cross all categories Transactional data Infinity and Beyond Ephemera 7-10 years<1 year Life Plus >10 years Business ContinuityLife 100% 50%30% Not all data is created equal: Depending upon its content, it may be more important than it looks

16 Forensics and E-Discovery Electronic Evidence E-DiscoveryComputer Forensics Investigative and detailed analysis Focused on who, what and when of a document or device Results in expert witness testimony Gather, filter, evaluate and produce Volumes of data from active and archived sources Someone else does analysis to build case

17 The Rule 37(f) "Safe Harbor" may be more of a "Shallow Pond" "… lost as the result of the routine, good-faith operations of an electronic information system." "Absent exceptional circumstances, a court may not impose sanctions under these rules on the party for failing to provide electronic stored information … "

18 What are the e-discovery preservation obligations beyond the firewall? Transparent Intricate Keyword/custodian presence XXXX yy zzz XX zzz yy aa ≈ Statistical analysis x N-dimensional relevancy modeling x y z a Social networking analysis Web Incorporation of external data sources Conventional (formal) Exploratory Lawyer comfort: 2007 Lawyer comfort: 2009 Lawyer comfort: 2012

19 Notes accompany this presentation. Please select Notes Page view. These materials can be reproduced only with Gartner's official approval. Such approvals may be requested via — Is E-Discovery IT’s Great Unfunded Mandate? John Bace, CCEP

20 What Is EDRM? Six-step methodology broken into nine processes Developed by a large and diverse group, including vendors, law firms and corporate legal departments Common definitions and a working glossary are available in public domain Additional work is under way to develop metrics and XML schema Source: Socha Consulting and Gelbmann & Associates. Copyright All rights reserved. Used with permission. Volume Relevance Electronic Discovery Reference Model Production Presentation Identification Records Management Analysis Review Processing Analysis Preservation Collection

21 Preparing for E-Discovery Through Records Management Source: Socha Consulting and Gelbmann & Associates. Copyright All rights reserved. Used with permission. Volume Relevance Production Presentation Identification Records Management Analysis Review Processing Analysis Preservation Collection Who: Information Management Steering Committee, Corporate and Divisional Records Directors, House Counsel What: Develop a process and solution for declaring, classifying and managing an organization's documents When:Immediately How: As a discipline, records management is completely independent of technology that must address, in this order: people, processes and technology.

22 Proactive Identification of IT Assets Volume Relevance Production Presentation Identification Records Management Analysis Review Processing Analysis Preservation Collection Who: Primary responsibility of the IT department What: All hardware, software and storage, backup and recovery, information retention and deletion policies When: Within 90 to 120 days of the cause for action How: IT asset management software, forensics, policy management, records management, content management Discovery Word Docs Excel PowerPoint Source: Socha Consulting and Gelbmann & Associates. Copyright All rights reserved. Used with permission.

23 Preservation and Collection of Evidence Volume Relevance Production Presentation Identification Records Management Analysis Review Processing Analysis Preservation Collection Who: IT, acting on the advice of legal counsel or other advisors What: All data and metadata in all systems by custodian, date range and subject matter When: If you believe information is going to be requested, or immediately upon request How: Content and records management systems, policy management systems, litigation support databases, information access technologies, forensics Source: Socha Consulting and Gelbmann & Associates. Copyright All rights reserved. Used with permission.

24 Processing Volume Relevance Production Presentation Identification Records Management Analysis Review Processing Analysis Preservation Collection Who: IT, acting on the advice of legal counsel and using the appropriate tools, third-party provider What: Reduce the overall set of data you have collected by setting aside files that are duplicates, nonrelevant file types When: Upon receipt of interrogatory or subpoena How: Deduplication technology, forensics, litigation support vendors, archiving Source: Socha Consulting and Gelbmann & Associates. Copyright All rights reserved. Used with permission.

25 Review and Analysis: Key Technology Differentiators Volume Relevance Production Presentation Identification Records Management Analysis Review Processing Analysis Preservation Collection Who: Legal professionals, document review software, content analytics What: Review documents for relevancy, privilege and redaction When: Deadlines agreed to in meet and confer conference and set by the court How: Search and information access tools, content analytics, tagging Source: Socha Consulting and Gelbmann & Associates. Copyright All rights reserved. Used with permission.

26 Production and Presentation Volume Relevance Production Presentation Identification Records Management Analysis Review Processing Analysis Preservation Collection Who: Legal professionals, third-party specialists, IT What: The transmittal of relevant material to opposing counsel and the display of evidence during proceedings When: As soon as material is analyzed for production How: Mutually agreed upon format, or in the manner it is used in the normal course of business Source: Socha Consulting and Gelbmann & Associates. Copyright All rights reserved. Used with permission.

27 IT can and should take responsibility for the "upfront" part of the model. Getting it right takes a mixture of policy and technology. Process discipline is essential to a defensible legal and regulatory position. Source: Socha Consulting and Gelbmann & Associates. Copyright All rights reserved. Used with permission. Volume Relevance Electronic Discovery Reference Model Production Presentation Identification Records Management Analysis Review Processing Analysis Preservation Collection E-Discovery Tools for IT

28 IT can work with legal to specify a review platform. The goal is to decrease the numbers of documents reviewed by people. Legal advice and understanding are key to defensible position, particularly in processing data. Getting it right can result in HUGE cost savings. Source: Socha Consulting and Gelbmann & Associates. Copyright All rights reserved. Used with permission. Volume Relevance Electronic Discovery Reference Model Production Presentation Identification Records Management Analysis Review Processing Analysis Preservation Collection E-Discovery Tools for Legal Professional

29 The First Insight to the Emerging E-Discovery Market Function and CapabilityDescriptionSample Vendors Analytics, Access and Search Collect, analyze and produce records and data, provide information access and search Attenex, Aungate, Clearwell, EED, Fios, Guidant, H5, MetaLINCS, Stratify, ZyLAB Archiving and Management Deduplication, data collection, e- mail archiving and restoration EMC, Fortiva, Symantec, Zantaz Enterprise Content and Records Management Support the content life cycle, from creation to distribution to long-term storage EMC Documentum, FileNet, iLumin (CA), Interwoven, Open Text, Zantaz Full-ServiceA range of offerings and products, from consulting to data collection, forensics, hosting, review and production Daticon (Xiotech), DOAR, EED, Fios, FTI Consulting, Iron Mountain, KPMG, Kroll, Onsite³, Xerox, Zantaz Litigation Support Database Evidence management, repositories for classifying and producing documents as evidence Dataflight Software, Ringtail Solutions (FTI), Summation Legal Technologies PolicyMonitors employee compliance with policies, frequently in real time Autonomy, Entrust, Orchestria

30 Fast-Growing Market Total CAGR ( ): 35.2% Source: Gartner Dataquest (October 2007) E-Discovery Forecast, Worldwide , Total Software Revenue Year-Over- Year Growth Revenue (US$M) Percent

31 Recommendations Assess your compliance needs and determine the litigation risk that your organization faces Begin a dialogue with in- house legal professionals Conduct an inventory of information assets Develop a strategy for management and retention Educate users on the consequences of noncompliance

32 Notes accompany this presentation. Please select Notes Page view. These materials can be reproduced only with Gartner's official approval. Such approvals may be requested via — Is E-Discovery IT’s Great Unfunded Mandate? French Caldwell


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