SLIM DOWN YOUR EXCESS DATA LITIGATION PREPAREDNESS & RECORDS RETENTION BEST PRACTICES ACC Minnesota Chapter

Skip Durocher Partner & Chair of E-Discovery Practice Group Dorsey & Whitney Rebecca Perry CIPP/US/G Director of Professional Services Jordan Lawrence Caroline Sweeney Global Director, E-Discovery & Client Technology Services Dorsey & Whitney SPEAKERS

THE INTERSECTION InfoGovInfoSeceDiscovery IdentifyingData, Records Data Owners and Custodians Data Data Owners and Custodians Data Case-specific Custodians SecuringMinimizing Storage Requirements by Identifying What's Important and Disposing All Else Maximizing Protection by Identifying and Storing Appropriately Collecting and Preserving What's In Scope and Storing Securely and Immutably ManagingDefining rules for all data including records, managing to those rules Defining rules for classifying data, managing to classification Adhering to eDiscovery rules within associated jurisdictions

FAST FACTS The year-over-year trend shows ESI is more likely to be included in records management programs, retention schedules and hold programs. ● 80% of respondents asserted that their organizations' records management program includes ESI, which is an increase from 75% in 2009 ● 79% of respondents affirmed that their organizations' retention schedules apply to ESI, which is an increase from 65% in 2009 ● 87% of respondents declared that their organizations' hold program pertains to ESI, for which there was no change from 2009 The continuous positive progress in recognizing the importance of managing ESI is encouraging. 2011/2012 Cohasset / ARMA International Survey Results

FAST FACTS Successful records management and hold programs require cross-functional collaboration. The survey responses showed that the Legal department is most supportive of the records management program: ● 68% of survey participants asserted that "Legal is supportive of the records management program and is actively engaged when needed." ● 81% of survey participants disclosed that their organizations' Legal department is actively engaged and demonstrated support for the records management program. Leadership, managers and Information Technology personnel demonstrated significantly less support. Only 54% of survey participants rated employees' active engagement and demonstrated support as "good” or better. This is important, since most organizations rely on manual or semi-automated records management processes, requiring the support and engagement of employees. 2011/2012 Cohasset / ARMA International Survey Results

THE CHALLENGES Big Data Globalization Security and Privacy Mobile World

THE CASE LAW Lewy v. Remington Arms Co., 836 F. 2d 1104 (8 th Cir. 1988) Three-part test to determine whether company policy is reasonable : – Is retention period reasonable, in light of specific record – Have other lawsuits been filed against company involving similar complaints – Was policy adopted in bad faith United States v. Philip Morris USA, Inc., 327 F. Supp. 2d 21 (D.D.C 2004) – s deleted as part of routine operations – Waited 4 months to notify court and continued routine destruction for 2 months – Monetary sanction of $2.75 million – Barred testimony of witnesses who violated court’s preservation order and company’s document retention policy

THE CASE LAW Phillip M. Adams & Assoc. v. Dell, Inc., 2009 WL (D. Utah March 30, 2009) Issue: whether decentralized records management system was reasonable and met good faith requirements of FRCP 37(e) – Determination of what s were of “long term value” was left to individual employees – When computer replaced, employee identified what files should be transferred to new computer – No centralized storage for electronic documents; employees maintained records on individual workstations Court found that lack of retention policy and irresponsible data retention practices were responsible for significant loss of data Court held system was not reasonable and did not satisfy Rule 37(e): – “While a party may design its information management practices to suit its business purposes, one of those business purposes must be accountability to third parties.” – “[a]n organization should have reasonable policies and procedures for managing its information and records. The absence of a coherent document retention policy is a pertinent factor to consider when evaluating sanctions.”

THE CASE LAW Sekisui American Corp. v. Hart, 945 F. Supp. 2d 494 (S.D.N.Y. Aug. 15, 2013) – Plaintiff did not issue litigation hold for 15 months – Plaintiff did not notify outside IT vendor for 21 months of preservation obligation – Court: Destruction of ESI triggers presumption of prejudice to other party and is grossly negligent – Sanctions could be warranted upon finding of negligent destruction without finding of bad faith “To shift the burden to the innocent party to describe or produce what has been lost as a result of the opposing party’s willful or grossly negligent conduct is inappropriate because it incentivizes bad behavior on the part of would-be spoliators” – Adverse jury instruction But allowed for jury to "still determine that [defendants] were not prejudiced by [plaintiff's] willful destruction of ESI and [may] decline to draw any adverse inference.“

THE CASE LAW In re: Pradaxa Prods. Liab. Litig., Case No. 2:12-md-02385, 2013 WL (S.D.Ill. Dec. 9, 2013) Sanctions warranted for Defendants’ bad faith violation of court’s case management orders Several key issues: – Cooperation & Proportionality Danger of engaging in proportionality without engaging opposing counsel – Failure to place timely hold Placed incremental holds – Scope of what to put on hold Failure to identify key custodian Failure to produce ESI for certain custodians – Implications for BYOD Failure to preserve business-related text messages from cell phones of certain custodians

THE CASE LAW Sokn v. Fieldcrest Cmty. Unit School Dist. No. 8, No. 10-cv-1122, 2014 WL (C.D. Ill. Jan. 17, 2014) Plaintiff sought sanctions for Defendants’ destruction of relevant audio recordings of closed-session school board meetings – Violated Illinois Open Meetings Act, school board’s own document retention policies, and Illinois common law. Per school district policy, subject tapes were to be maintained for at least eighteen months and could be destroyed only after vote by school board – “The Policy seems to [have been] designed to fulfill the requirements of the Illinois Open Meetings Act....” Despite preservation policies, unknown number of recordings were destroyed without vote. Court declined to impose sanctions where bad faith could not be established absent evidence of when tapes were destroyed.

GOOD-FAITH Designed to protect organizations from sanctions when data is destroyed or deleted Requires party seeking protection from sanctions to be acting in GOOD-FAITH at time of deletion(s) Requires deletion or destruction of data to be result of routine and normal operation of computer systems FRCP 37(E)

Big Data Smart Data Reduce Costs Reduce Risks Improve Compliance

How good is good enough and where do you start?

What Makes Deletion Defensible?

Show Your Work.

ABC Company’s Retention Schedule DOOM

1 What Do You Have? 2 Where Does It Exist? 3 What Are The Requirements? DEVELOP A RECORDS INVENTORY

Accident/Incident Records Advertising Records Benefit Records Budget Records Contracts & Agreements Coupon Records Credit Approvals Customer Orders Drug Screening Records Employee Medical Files Gift Card Functions Payment Records Personnel Files Sales Receipts WHAT DO YOU HAVE?

WHERE IS IT?

BUSINESS NEEDS DOL PCI GLB HIPAA OSHA SEC State Privacy Laws Corporate Sensitive PII Customer Data Intellectual Property Bio Metric Patient Health Info. Sensitive EU REQUIREMENTSSENSITIVITY WHAT ARE THE REQUIREMENTS?

ACTIONABLE RETENTION SCHEDULE

Most Information H AS L ITTLE R ETENTION V ALUE Litigation Holds Valid Business Records L EGITIMATE R ETENTION R EQUIREMENTS Reference Value R ETENTION V ARIES RETENTION FOR ALL INFORMATION

6 YEAR RETENTION | B ENEFITS 7 YEAR RETENTION | L EGAL I NBOX = 180 DAYS S ENT I TEMS = 180 DAYS D ELETED I TEMS = 2 DAYS 18 MONTH RETENTION N ON -E SSENTIAL C OMMUNICATION B USINESS R EFERENCE V ALUE V ALID B USINESS R ECORDS 7 YEAR RETENTION | T AX D ISABILITY R ECORDS | 6 YEARS DELETION STRATEGY FOR

6 Years 3 Years 18 Months LEVERAGE TECHNOLOGY RECORDS NON-RECORDS

TECHNOLOGY CONSIDERATIONS Use of an archive platform and ability to assign records retention and litigation hold “rules” to Archiving of non- data (structured and unstructured) and ability to assign rules to, and implement holds against, those sources, as well – SharePoint 2013 (per Forrester 2014 market study) has adequate records management and improved e-discovery capabilities but may require additional third party tools to enhance capabilities Use of imaging systems to minimize hard copy and apply automated retention to formerly paper records. Success is likely greater when including Legal, IT, key business stakeholders, and those with records management responsibilities to define technology product requirements and select and implement a solution.

Skip Durocher Partner Dorsey & Whitney Rebecca Perry CIPP/US/G Director of Professional Services Jordan Lawrence Caroline Sweeney Global Director, E-Discovery & Client Technology Services Dorsey & Whitney