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eDiscovery Best Practices and the Role of Information Governance XACT

Electronic Discovery Best Practices XACT

eDiscovery and Information Governance Key Concepts for Discussion: What is eDiscovery? Why is Information Governance key to successful eDiscovery? What are the building blocks to successful Information Governance? How does Information Governance inform eDiscovery? Who needs to be involved in eDiscovery process? What does Legal need to know about Information Governance? What does Information Governance need to know about Legal XACT

Step 1: Litigation Readiness Successful eDiscovery starts with Preparation –Sets the stage for Preservation Managing Risk – Records Management Program –Establish a team Buy-In of key stakeholders – executive sponsor, records management, legal, IT, compliance –Develop program and define strategic plan –Develop mission and vision Mission: purpose of program Vision: 2-3 years down the road –Senior management support –Define services performed “in-house” and consultants XACT

Litigation Readiness Conduct Records Inventory –Records: recorded information created or received by your organization in pursuance of legal obligations or in the transaction of business, and has value requiring its retention –Non-Records: reference materials, personal papers, junk mail, publications, convenience file, duplicate copies –Vital records: records which would be needed immediately after an emergency to continue your organization’s operation –Archival records: historical records of enduring value that are preserved and stored in your organization's archives Establish records management policies and procedures Develop records retention program Implement records management training program XACT

Litigation Readiness The Cost of not being Prepared… –examples of information governance failures: $171 MILLION: Out-of-pocket remediation costs to a data breach affecting 100 million persons. $8.5 MILLION: Sanctions for failure to locate and produce ESI in litigation. $1 MILLION: Fine for failure to retain immigration records per regulation. $11 MILLION: settlement with the U.S. Government for record- keeping violations under the Controlled Substances Act –Source: The Sedona Conference® “Principles of Information Governance” XACT

The Importance of Best Practices –“eDiscovery is a Discipline” “In short, this is a complex, high-risk task that requires specialized skills and experience. It is not something one does once a year and gets good at.” LeClairRyan partner Dennis Kiker. –Potential ethical violationsethical violations –Expectation of competence –Standard ESI Orders being adopted by courts in an attempt to standardize certain practices –Courts stress – Communication, Proportionality, Cooperation XACT

ABA Model Rule 1.1 – Competence –A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Comment –To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology… Reminder: An Attorney’s Ethical Duty XACT

“The difference between best practice and malpractice is where the red line of unreasonable negligence is drawn.” XACT

Model Order Relating to the Discovery of Electronically Stored Information (ESI) and Checklist for Rule 26(f) Meet and Confer Regarding ESI (Sept. 20, 2013) – –Duty of counsel to pursue eDiscovery education Potential for Legal Malpractice resulting from eDiscovery mistakes: –J-M Manufacturing Company, Inc. v. McDermott Will & Emery (California Supreme Court, Los Angeles County — Central District, Case No.: BC ) Sample Order on Professional Responsibility and Conduct –The State of California Standing Committee on Professional Responsibility and Conduct Formal Opinion Interim No Importance of Ethics & Duty of Education XACT

Step 2: Preservation Activities Working toward proper Preservation: –Communication - determine the who, what, where, why and how Establish a process in-house Involve outside counsel Tracking –Identify the key players IT Information Governance Manager –Identify relevant ESI Where is ESI stored Identify sources Are there retention/deletion schedules in place? Determine whether ESI is accessible Back-up tapes? Available on other sources? XACT

Preservation - Your Obligation Ethical Duty – “The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation.” (The Sedona Principles – Principle 5) The Duty: –“The 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.” Zubulake IV The Scope of The Duty: –Identify the Who – who are the custodians Who has discoverable information related to claims Who prepared documents Third-parties? Former employees? –Identify the What – what form of ESI All relevant documents that existed when the duty attached All documents created since – that are relevant –Where is ESI stored? XACT

Preservation Activities The Litigation Hold: –Suspend routine document retention/destruction policies –preserve and protect against destruction –ID Key players – counsel, employees, IT, Information Management Advise on duty to preserve –Issue a written litigation hold to key players, supervisors, former employees, third-parties –Periodically Reissue –Attorney’s Duty to Monitor – Zubulake V “Counsel must become fully familiar with her client’s document retention policies, as well as the client’s data retention architecture.” Must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched. –Duty to supplement per FRCP 26(e) T XACT

The Consequences….. Spoliation: –Adverse Inference Instructions –Dismissal of Claims –Sanctions E-discovery sanctions, such as an award of $8.5 million in monetary sanctions against patent holder for willfully failing to produce tens of thousands of discoverable documents –Qualcomm, Inc. v. Broadcom Corp., No. 05cv1958-B (BLM), 2008 WL (N.D. Cal. January 7, 2008) vacated in part by Qualcomm v. Broadcom Corp., No. 05CV1958-RMB (BLM), 2008 WL (N.D. Cal. March 5, 2008); see also Day v. LSI Corp., No. CIV 11–186–TUC–CKJ, 2012 WL (D. Ariz. Dec. 20, 2012) (awarding partial default judgment and attorney's fee award of $10,000, resulting from the loss of information that should have been retained according to both a document retention policy and a litigation hold that was not properly enforced); Pillay v. Millard Refrigerated Servs., Inc., No. 09 C 5725, 2013 WL (N.D. Ill. May 22, 2013) (issuing adverse inference instruction against a company for failing to stop the automatic deletion of employee productivity tracking data, which it had used as a reason for terminating a disabled employee). –Source: The Sedona Conference® “Principles of Information Governance” XACT

Proposed Amendment to Rule 37(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION If a party failed to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, the court may: –(1) Order measures no greater than necessary to cure the loss of information, including permitting additional discovery; requiring the party to produce information that would otherwise not be reasonably accessible; and ordering the party to pay the reasonable expenses caused by the loss, including attorney’s fees. –(2) Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice. –(3) Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. –[(4) In applying Rule 37(e), the court should consider all relevant factors, including: (A) the extent to which the party was on notice that litigation was likely and that the information would be relevant; (B) the reasonableness of the party’s efforts to preserve the information; (C) the proportionality of the preservation efforts to any anticipated or ongoing litigation; and (D) whether, after commencement of the action, the party timely sought the court's guidance on any unresolved disputes about preserving discoverable information.] T XACT

More Preservation Activities: Collection Collection: –Preserve and protect against alteration Determine if Forensic Data Capture is necessary Preserve Metadata Ensure proper collection tools are utilized – self-collection? –Defensibility Attorneys cannot rely upon assurances from their clients, must personally verify that all discoverable ESI has been identified, preserved, gathered, and produced – the Attorney signs the pleadings. T XACT

Goals: –Reduce cost and increase efficiencies –Communication with opposing counsel –Proportional Discovery A Successful Meet & Confer: –Be prepared to discuss the following: Preservation Systems that contain discoverable ESI Search and production –Agree on production procedures and form of data Phases of discovery Protective orders Opportunities to reduce costs and increase efficiencies –Cost sharing –Predictive Coding –Hosted Review Step 3 : Cooperation XACT

Cooperation Proclamation Sedona Conference, July 2008 A coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a “Just, speedy, and inexpensive determination of every action.” Reverse the current legal culture of adversarial discovery. Create model case management toolkits to facilitate Proportionality and Cooperation. Create network of trained electronic discovery mediators nationwide XACT

eDiscovery and Information Governance Key Concepts for Discussion: What is eDiscovery? Why is Information Governance key to successful eDiscovery? What are the building blocks to successful Information Governance? How does Information Governance inform eDiscovery? Who needs to be involved in eDiscovery process? What does Legal need to know about Information Governance? What does Information Governance need to know about Legal XACT

Xact Data Discovery People Technology Communication make discovery projects happen XACT DATA DISCOVERY Because you need to know XACT