MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint John Isaza, Esq., FAI Partner Legal Developments & Rules Affecting SharePoint 2013 Usage 1

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint

Agenda Recent cases re: “trigger events” and “scope” for legal holds Legal analysis impacting SharePoint usage Recommendations 3

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint But First: Scope of Potential SharePoint Information to Manage Collaboration (team sites) Document versioning Lists and calendars Discussion boards and meeting workspaces Wikis and blogs Forms and surveys My Sites (social networking) Portals (web content management) Custom applications 4

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint And Sobering News Cyberattacks on Rise Against U.S. Corporations Cyberattacks on Rise Against U.S. Corporations – NYT May 14, 2013 A new wave of cyberattacks is striking American corporations, prompting warnings from federal officials, including a vague one issued last week by the Department of Homeland Security. This time, officials say, the attackers' aim is not espionage but sabotage, and the source seems to be somewhere in the Middle East.

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint Part I CASES RE: “TRIGGER EVENTS” & “SCOPE” FOR LEGAL HOLDS 6

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint Legal Holds Processes Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC (S.D.N.Y. Jan. 15, 2010) 2010 WL “The failure to issue a written litigation hold constitutes gross negligence... ” “... the failure to collect records—either paper or electronic—from key players constitutes gross negligence or willfulness as does the destruction of or backup tapes after the duty to preserve has attached.” 7

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint Spoliation Sanctions without Bad Faith Sanctions for “careless” and “inexcusable” failure to issue a legal holds Equal Employment Opportunity Commission v. Ventura Corp., Civ. No (PG), 2013 U.S. Dist. LEXIS (D.P.R. Feb. 12, 2013) Sanction was exclusion of key testimony Evidence shredded at a warehouse and s and other files fell victim to a company-wide “software migration.” E.E.O.C. v. JP Morgan Chase Bank N.A., No. 2:09-cv (S.D. Ohio Feb. 28, 2013) Adverse inference instruction While scope of production was debated, 10 months of data destroyed per routine document deletion policies. 8

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint

Part II LEGAL ANALYSIS IMPACTING USE OF SHAREPOINT 10

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint Symantec Survey – 7/

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint eDiscovery and SharePoint Goals Anticipate risk Devise cost-efficient, defensible, automated methods for production of relevant ESI Balance with Federal requirements, as well as state discovery rules when applicable Consider implications of Social media impact Cloud storage

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint Collaboration Many users working on documents result in version control When legal hold “trigger” hits, all versions must be preserved “Scope” of legal holds includes anything that is relevant to the subject matter of the case Collaboration with counsel could result in waiver of attorney-client privilege 13

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint Collaboration (cont’d.) All are discoverable Some may contain “records” requiring robust RM Some may be non-record WIPs in LCM Wikis & Blogs Transactional in nature Who owns and controls data? Blog could be opened to outsiders Special hold challenges Discussion Boards Meeting Workspaces Forms Lists Surveys 14

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint My Sites (Social Networking) Records? Yes, some Discoverable? Of course! Who owns the data if outsiders post? Who controls the data? 15

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint Portals (Web Content Management) More “records” How do you declare, classify and capture? How do you protect privacy? Intranet and Internet functionality E.g., Hawaiian Airlines & Japan Airlines Site assets vs. Transactional logic Also discoverable All documents “irrespective of medium” per FRCP How do you implement legal holds? 16

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint Part III RECOMMENDATIONS 17

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint Recommendations Bottom line: Possession, custody and control First lines of defense Create and implement a records and information management (RIM) program Role of RRS Robust Legal Holds processes 18

MER 2012: T1 – Achieving Enterprise Content and Records Management with SharePoint

John J. Isaza, Esq., FAI Information Management Partner, Rimon, PC