Presentation on theme: "Infoguard-Gigabiter From Creation to Destruction With an Eye on Compliance & Due Diligence Presented by Robert A. Haskins GigaBiter & Infoguard Information."— Presentation transcript:
Infoguard-Gigabiter From Creation to Destruction With an Eye on Compliance & Due Diligence Presented by Robert A. Haskins GigaBiter & Infoguard Information Management
Infoguard-Gigabiter Information Management ●What’s changed? ●Laws & Federal Requirements ●Destruction & Storage ●Processes and Procedures
Infoguard-Gigabiter Paper has been around for thousands of years. Each year a person produces 800MB of recorded information. That equates to 30 linear feet of books. This produces storage concerns: a) Where and how long to keep the information. b) How is the information handled after its retention date. Paper * One of the Oldest Media
Infoguard-Gigabiter Laws Legal Sarbanes Oxley, GLB, FACTA, Social Security Act and many other State and Federal Privacy Acts Environmental RCRA/Superfund, WEEE Directive, and the EU Directive Standards SAS 70 II, ISO 9001 - 2000,14000 Environmental ISO 17799,BS7799
Infoguard-Gigabiter A majority of U.S. businesses do not provide written retention or destruction guidelines to employees A majority of U.S. businesses do not provide written retention or destruction guidelines to employees: “Sixty percent have NO formal policy governing e-mail retention” “A majority of companies do not even tell employees where, how, or by whom email messages should be retained.” Source: Kahn, Randolph & Barclay Blair, “Managing Email in the New Business Reality,” Executive Summary (2004), available at http://www.kahnconsultinginc.com/library/AIIM-KCI-E-Mail-Survey- Report.pdf.
Infoguard-Gigabiter Fulbright & Jaworski's annual survey of corporate counsel names e-discovery the No. 1 new litigation- related burden for companies with revenues of more than $100 million. As e-mail and electronic records have become the norm as evidence in lawsuits, effective record keeping has become a priority, and record retention/litigation hold policies are becoming far more important. What’s Changed?
Infoguard-Gigabiter What’s Changed? Heng Chan v. Triple 8 Palace, 2005 U.S. Dist. LEXIS 16520 (SDNY Aug. 11, 2005). Court imposed adverse inference jury instruction, costs and attorney fees Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co. Inc., 2005 Extra LEXIS 94 (Fla. Cir. Ct. Mar. 23, 2005). Court found Morgan Stanley "deliberately and contumaciously violated numerous discovery orders," and imposed sanctions including a jury instruction that facts in the complaint, which claims damages of at least $485 million, shall be "deemed established for all purposes" in the action. The Court also gave an adverse inference instruction and reversed the burden of proof. Whitehall Specialties, Inc. v. Delaportas, 2005 U.S. Dist. LEXIS 4345 (W.D. Wisc. Mar. 10, 2005). Court held defendant’s discovery misconduct displayed "willfulness, bad faith and fault," and entered default judgment for $2.2 million. MOSAID Techs. Inc. v. Samsung Elecs. Co., MOSAID Techs., 2004 U.S. Dist. LEXIS 25286 (D. N.J. Dec. 7, 2004). Concluding Samsung had "willfully blinded itself" to its obligation to preserve potentially relevant digital information, the District Court affirmed a Magistrate Judge's imposition of $566,839.97 in sanctions and an adverse inference jury instruction.
Infoguard-Gigabiter What’s Changed? Sarbanes Oxley § 802(a) (18 USC § 1519): "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.”
Infoguard-Gigabiter 2006 Proposed Rules of Civil Procedure August 2004 – published for comment by the Committee on Rules of Practice and Procedure September 2005 – Judicial Conference approved proposed amendments Enforceable NOWDecember 2006 – Enforceable NOW What’s Changed?
Infoguard-Gigabiter Proposed Rules of Civil Procedure “The amendments are the biggest change to the Rules of Civil Procedure in a generation or two.” “Lawyers are going to have to think about whether their clients have information on laptops, desktops, servers and personal digital assistants.” George Paul, author of The Discovery Revolution What’s Changed?
Infoguard-Gigabiter What’s Changed? Proposed Rules of Civil Procedure New rules will require lawyers to be thoroughly knowledgeable about their clients’ computer systems, including data storage, hardware & software architecture, backup systems, software formats, the first time they meet with the Judge The importance of sophisticated document retention/destruction programs will be heightened immeasurably
Infoguard-Gigabiter Hard Disk Basics At the simplest level, a hard disk is not that different from a cassette tape Both use the same magnetic recording techniques The magnetic medium can be easily erased and rewritten, and it will “remember” the magnetic flux patterns stored onto the medium for many years What every business needs to know about electronic discovery
Infoguard-Gigabiter What every business needs to know about electronic discovery
Infoguard-Gigabiter A typical track is shown in yellow; a typical sector is shown in blue. A sector contains a fixed number of bytes -- for example, 256 or 512. 011110010110 0101010101010111101 0101001111101010101 1100101010110111011 0101110101010100101 0000000000000000000 000000000000000 00000000 Data Blank What every business needs to know about electronic discovery
Infoguard-Gigabiter When a hard drive is formatted, a “File Allocation Table” (FAT) is created This table keeps track of where the files are on the hard drive, what sector it starts notWhen a file is deleted, it is actually the entry in the FAT that is erased, not the file itself The file (generally) remains on the hard drive until it is overwritten when the space it occupies is needed What every business needs to know about electronic discovery
Infoguard-Gigabiter Accordingly, even after files are “deleted,” there is a good chance that the text of the ‘chapter’ (i.e., file or email) is still in the book, even if it is not listed in the index DO NOTDestruction of data - “erase,” “delete,” “defrag,” “format” and “recycle” DO NOT remove data from a hard drive! Even if a machine is “wiped” or “scratched” or “low-level formatted,” the hard drive will generally provide evidence as to when this occurred, even if data is reloaded over it What every business needs to know about electronic discovery
Infoguard-Gigabiter ZUBULAKE Rules of Civil Procedures Discovery of Information Very Costly to Defend Verifies Procedures Validity of Retention Program Valid Destruction Processes
Infoguard-Gigabiter A Checklist of Duties re e- discovery Beginning, but most important step …
PDA’s Zip Drives External Storage Devices USB Drives CD/DVD’s Cell Phones Pocket PC’s Legacy Floppy Disks Websites Don’t forget about all potential sources of relevant information… Backup Tapes Personal Laptops
Infoguard-Gigabiter Prepare map of organization’s computer systems and data storage practices: What types of electronic records are generated? Who in the organization generates them? Where are they stored? In what volumes and formats? How does the organization use those records? During what period of time? What does it cost to store them? What does it cost to destroy them and how are they destroyed? What records must be retained by law? For what period of time? Who in the organization manages them? The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age available at http:/www.thesedonaconference.org/miscFiles/RetGuide200409. Essential Tasks:
Infoguard-Gigabiter Total Solution Processes & Procedures for all Media All Media (Electronic, Disc, Paper & Microfilm Retention Facility Storage & Management Who has access? What info is being stored? What laws does info fall under? Final disposal-End of Life DestructionLandfillSelling To WhoWhere Working Documents StoredDisposed Disposal Destruction Shredding OnSite(type of mobile unit) Offsite(type of unit) Particle Size Final Disposition Of End Product LandfillSale Paper & Electronic
Infoguard-Gigabiter Paper Destruction Auditable Process & Procedures Particle Size Final Disposition of Shredded Materials Chain of Custody Certificate of Destruction Due Diligence Laws & Acts of Prior to 2000 Reasonable Steps to Protect After 2000 Reasonable Steps to Destroy
Infoguard-Gigabiter Total Electronic Destruction New Electronic Destruction Processes Must Meet Environmental Requirements Total Information Destruction Due Diligence Auditable Process & Procedures Chain of Custody Final Disposition of Computer Materials