discovery in deep: corporate preservation and identification of evidence

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1 Discovery In Deep: Corporate Preservation and Identification of Relevant Evidence Suzanne Ilene Schiller Manko, Gold, Katcher & Fox LLP 401 City Avenue, Suite 500 Bala Cynwyd, PA 19004

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Page 1: Discovery in Deep:  Corporate Preservation and Identification of Evidence

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Discovery In Deep: Corporate Preservation and Identification of Relevant Evidence

Suzanne Ilene SchillerManko, Gold, Katcher & Fox LLP401 City Avenue, Suite 500Bala Cynwyd, PA 19004(484) 430-2354

Page 2: Discovery in Deep:  Corporate Preservation and Identification of Evidence

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Obligations of Preservation and Identification Apply To:

Defendants

Plaintiffs Corporations/Business Entities Individuals

Nonparties “who possess materials reasonably anticipated to be subject to discovery in this action.”

Pretrial Order #1, Para. 14

© Copyright 2010

Page 3: Discovery in Deep:  Corporate Preservation and Identification of Evidence

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Sources Federal Rules of Civil Procedure

Court Orders PTO #1 PTO #11

Manual for Complex Litigation (4th Ed.)

Case Law (e.g. Zubulake v. UBS Warburg LLC )

© Copyright 2010

Page 4: Discovery in Deep:  Corporate Preservation and Identification of Evidence

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Types of Discoverable Information “Reasonably Accessible” Electronically

Stored Information (ESI)

Hard Copy Documents

Physical Evidence/Things

Witness Testimony

© Copyright 2010

Page 5: Discovery in Deep:  Corporate Preservation and Identification of Evidence

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Types of Discoverable Information “Reasonably Accessible” Electronically

Stored Information (ESI) Documents, Photographs, Videos Emails/Text Messages Voicemails, Sound Recordings Programs Databases

© Copyright 2010

Page 6: Discovery in Deep:  Corporate Preservation and Identification of Evidence

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Pre-Incident Preparedness Mapping

Current and Historical US and Ex-US

Document Retention Policy

Litigation Hold Policy

Privacy Policies/Written Consents EC Directive on Data Protection - “Safe Harbor”

E-Discovery Team/Outside E-Discovery Consultant

© Copyright 2010

Page 7: Discovery in Deep:  Corporate Preservation and Identification of Evidence

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Pre-Incident Activities Mapping

Organization Mapping

Network Mapping

Document Management Mapping

© Copyright 2010

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Pre-Incident Activities Mapping

Organization Mapping Parent/Subsidiary Companies Departments Positions Individuals Outside Consultants Outsourced Departments/Responsibilities

© Copyright 2010

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Pre-Incident Activities Mapping

Network Mapping Active and Passive Data – ROM and RAM Back-Up Media Offsite Storage and Processing Internal Controls (Employee Ability to Copy,

Download, Destroy, Alter) Effect of Mergers, Acquisitions, Deacquisitions

© Copyright 2010

Page 10: Discovery in Deep:  Corporate Preservation and Identification of Evidence

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Pre-Incident Activities Mapping

Document Management Mapping Centralized Filing System Departmental Filing System Individual/Personal Working Files

© Copyright 2010

Page 11: Discovery in Deep:  Corporate Preservation and Identification of Evidence

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Preservation and Litigation Hold Directives Timing Contents Distribution

IT Department Records Departments Working Departments Individual Employees Third Parties

© Copyright 2010

Page 12: Discovery in Deep:  Corporate Preservation and Identification of Evidence

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Witness Interviews Identify Scope of Relevant Knowledge

Identify Documents In Witness’ Possession – Confirm Preservation Known to Witness/Not in Witness’ Possession

Identify Other Potential Witnesses

© Copyright 2010

Page 13: Discovery in Deep:  Corporate Preservation and Identification of Evidence

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Identify Relevant and Potentially Relevant ESI

Pathname

Filename

Key Word/Term/Concept Search Attorneys - Privilege

© Copyright 2010

Page 14: Discovery in Deep:  Corporate Preservation and Identification of Evidence

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Cooperation and Coordination External

Opposing Counsel Business Partners Consultants/Outside Counsel Outsourcing Companies

Internal Transactional Regulatory Government Relations Ex-US

© Copyright 2010

Page 15: Discovery in Deep:  Corporate Preservation and Identification of Evidence

15© Copyright 2010

Questions or Further Information:

Suzanne Ilene Schiller

Manko, Gold, Katcher & Fox LLP401 City Avenue, Suite 500Bala Cynwyd, PA 19004

(484) 430-2354

www.mgkflaw.com