© 2009 ibm corporation meeting the legal discovery challenge linda clark executive consultant ibm...

© 2009 IBM Corporation

Meeting the Legal Discovery Challenge

Linda ClarkExecutive ConsultantIBM Information Management Software

June 18, 2009

2© 2009 IBM Corporation

Information Management Software | Enterprise Content Management

Topics

The eDiscovery Process and Impact of Records Management

Challenges of eDiscovery: Risk and Costs, Recent Rulings

Proactive, Agile and Defensible Solutions



What is Electronic Discovery (eDiscovery)?

The process of identifying, locating, securing and producing electronically stored information (ESI) and materials, typically in response to litigation



Some of Today’s eDiscovery Challenges

For Your Organization

– Volume of information is “too big” to search

– Out-of-pocket costs, e.g. storage and review fees, are uncontrollable and growing

– Significant risk of missteps in eDiscovery resulting in adverse judgment

For the Courts and Litigators

– Simple search terms / text search to identify evidence are ineffective:• High volumes of irrelevant & duplicative documents• Extended eDiscovery delays proceedings & increases costs for court

system– Mishandling of eDiscovery compromises perception of justice and fairness

of courts

– Audit trails & chain of custody may be lacking – compromising evidence

– Too may false-positives for privilege, while legitimate content that is privileged, privacy-protected, or confidential information is not flagged as such

Source: Senior Litigation Attorneys, 2009 Interviews



Recent Sanctions for eDiscovery Missteps

Recent rulings grant plaintiffs an adverse inference for missing computer evidence (i.e., plaintiff wins)

Sanctions on the upswing nationwide, recent review of e-discovery rulings by Los Angeles-based Gibson, Dunn & Crutcher

– 44 state and federal decisions about e-discovery this year (2009), including 16, or 34%, with sanctions (as of May 31).

Most of this year's sanctions stem from failure to preserve and produce relevant data by parties with a duty to preserve it, said Bennett Borden, litigation associate, Gibson Dunn, Washington, DC.

For the first 10 months of 2008, 25% of the 138 reported electronic discovery opinions included sanctions, according to consultancy Kroll Ontrack Inc.

The National Law Journal, 2009



Reactive eDiscovery Problem #1: Excessive Costs Lack of proactive ESI

management creates large volumes of irrelevant or expired information

Extraneous information translates directly to unneeded eDiscovery cost

Simple retention solutions like fixed email deletion windows alone are insufficient

Courtesy of Cohasset Associates MER Conference and DuPont

Case Study: DuPont Findings for legal discovery for 9 key cases:

– Total #pages reviewed: 75,450,000– Total #pages responsive: 11,040,000– Total %pages past retention period: 50%– Unnecessary review fees: $11,961,000 USD

at review cost of between 20-80 cents/page

Does not include other impacts of producing expired information

“Information retention programs will be high priorities for companies in all industries...use systematic active policy and strategy for content archiving to reduce legal data processing and attorney review costs by up to a third”

- Gartner Project Planning & Budgeting 2008-11

$1500/Gig$1500/Gig

$2600/Gig$2600/Gig $1200/Gig$1200/Gig

$1000/Gig$1000/Gig

$2250/Day$2250/Day

$400/hr$400/hr$400/hr$400/hr

Sample service provider charges Sample service provider charges

InformationManagementInformation

Management

$1500/Gig$1500/Gig

$2600/Gig$2600/Gig $1200/Gig$1200/Gig

$1000/Gig$1000/Gig

$2250/Day$2250/Day

$400/hr$400/hr$400/hr$400/hr


$1500/Gig$1500/Gig

$2600/Gig$2600/Gig $1200/Gig$1200/Gig

$1000/Gig$1000/Gig

$2250/Day$2250/Day

$400/hr$400/hr$400/hr$400/hr


InformationManagementInformation

Management



Reactive eDiscovery Problem #2: Excessive Risk

Lack of proactive information management increases risk of overlooking key evidence

– Risk of sanctions, fines, and negative public exposure

Reactive eDiscovery delays visibility into potential evidence

– Impacts ability to set proper case strategy

– Risk of spending more on discovery/litigation than value of case

Risk of spoliation if ESI not pro-actively preserved

Case Study: Qualcomm (2008)

Qualcomm overlooked thousands of damaging emails during eDiscovery despite turning over 1.2M pages

Impact to Qualcomm was substantial:

– Lost their case vs. Broadcom, putting key patent rights at risk

– Fined $8.6M USD for discovery violations

– Forced to pay Broadcom’s attorney fees

– Counsel were sanctioned and referred to the bar for ethical review



Agile eDiscovery Approach

Volume Relevance

Organized, secure, trusted

information

Disorganized, dispersed, or

lost information

Relevant, insightful,

review-ready information

Content Collection & Archiving

ProactiveESI Management

Automatic Classification

Records/Retention Management

Agile eDiscovery Response

eDiscovery Search & Analytics

Reduced cost& risk

Tools & Methods



Classification & Records Management Integrated with ECM Platform

File plan:Legal

File plan:Marketing

File plan:Finance

File plan:Research &Development

. . .

Review &Audit

Process

RecordsManagement

Auto-assisted

Classification Process

US Army Case Study



Meeting eDiscovery Obligations for Pending or In-Process Litigation / Investigation on Integrated ECM Platform

Identify documents to be preserved*

Associate with legal matter (case folder) &

“lock down”

Analysis forMeet and Confer &

early case assessment

1 2 3

Advanced searches Total recall (high-volume CBR) Search message content, metadata, & attachments Duplicates eliminated Review content with native formatting

Case folders, management, & security Links to single instance of content No copies or alteration of metadata “Lock down” to suspend destruction or alteration Audit trails for chain of custody Export in native formats (NSF/MSG)

Identify witnesses Identify additional custodians Identify search terms Identify relevant third parties / entities Uncover new issues Develop case strategy Eliminate “noise”, privileged content Cull to intelligently decrease volume

IT IT or Legal Legal

Identify & Preserve

Collect & Manage

Analyze & Flag

* Records and non-records



Questions?

Linda ClarkExecutive Consultant

IBM Information Management [email protected]

240-381-1545

© 2009 ibm corporation meeting the legal discovery challenge linda clark executive consultant ibm...

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