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eDiscovery and eRetentionManagement

Andrew M. Cohen, Esq.

AGC and Vice President, Compliance Solutions

Customers Partners EmployeesApplications

Infrastructure

Information Volume and Complexity are Exploding

Customers Partners EmployeesApplications

Infrastructure

Is Information an Asset or a Liability?

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Challenges of Electronic Content

• Definitions – structured, semi-structured/unstructured

• “Back-up versus archive”

• Key sources

• Sheer volumes

• Duplication

• Metadata

• Cross-Functional Gaps

• Classification Challenges � from junk to regulated/critical, statutory,

eDiscovery, business, international

• How well do existing processes work for e-content?

• What is/should be the role of individual users in classification?

eDiscovery and Policy-Based

Management of Information

• eDiscovery and records management

colliding

– Driven by huge costs and risks

– Changes to the Federal Rules of Civil

Procedure

• Business imperative to:

– Set simplified practical policies that can

be operationalized by IT

– Pro-actively manage information

– Bridge the gap between Legal, IT,

Compliance, and records management

– Establish repeatable cross-functional

business processes

Principles for Pro-active Information Management

• Top-down inventory of your information assets

• Prioritize: Identify areas of highest risk and concern

• Simplify existing retention policies; incorporate reasonable, repeatable, cross-functional business process for retention, disposition, and discovery

• Implement an enterprise information lifecycle management strategy broken into digestible pieces:

– Consider a “big buckets, then little buckets” strategy

– Build pro-active eDiscovery efficiencies into the IT infrastructure

– Separate backups from archive

• Continuous improvement

Pro-activeInformation Management

PolicyEnforcement

Content Classification

InformationInventory

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Record classification and retention

• Non record content

– Short retention

– Enforced deletion

• Referential

– Modest retention

– Policy services

• Record

– Official business record

– Longer term retention

New Rules (Over) Simplified• Electronically Stored Information (ESI) is subject to production (the way it

is managed from cradle to grave will impact costs and risks of eDiscovery)

• There will be an early “meet and confer” that will drive (i) less risk and

greater transparency, (ii) more disputes over the scope and form of

discovery, and the cost of having to get outside attorneys up to speed

• Word “preserving” appears in the rules for the first time

• There is a need to understand the “sources” of ESI

• There is less obligation to produce “inaccessible” content, but you still may

have to hold it (which can be just as burdensome)

• There is a “safe harbor” for good faith inadvertent destruction of content,

but this is limited and this risk is likely best addressed through a good r/m

program, including a litigation hold process

• There will be some protection for inadvertent waiver of a/c/p materials

Potential ESI• Enterprise Email Server(s)

• Local Email stores (pst, etc.)

• Relational databases

– CRM

– Accounting / Financial Data

• Fileshares

• Content Management

• Instant Messaging

• Video and voice captures

• Backup / DR tapes

• Wikis & Blogs

• Legacy data

• User desktops

• CDs, DVDs

• PDAs / Wireless phones

• Flash drives

• Home offices

• Legacy / stray tapes

• Decommissioned servers

• Computer graveyard

• Stray drives

• Archives

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The New Rules…

are causing companies to do what they knew

needed to be done all along – policy manage

information, classify it, treat it as an asset, and

then get rid of it when it has no further value

because the failure to do so has become risky and

expensive.

eDiscovery Challenges

Review

Notice/Trigger

Hold

Collect

Process

Produce

• Perfection can’t be achieved, so you

need a repeatable process

• Lack of control over information leads

to inefficiency and risk

Information Lifecycle Management, RM and eDiscovery

After:

Policy management, logical repositories

Before:

Duplication;little ability to enforce policy

Pro-activeInformation Management

PolicyEnforcement

Content Classification

InformationInventory

Produce

Notice

Hold

Auto Collect

Review

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Email

Desktop Files

Collaborative Content

File Shares

EMC eDiscovery \ Retention Framework

Centralized Record Stores(official, departmental)

Email Archives

Policy Management• Centralized and In-Place• User mandatory thru zeroImpact automated models• Separation of backup from

archive

Search & Collect• Attribute collectionsand/or keywordcollections

Matter Vault• Business process (notices)• Copy & collect (for legal hold)

vs. Hold-in-place (futures)• Security & chain of custody• Culling \ filtering platform• Staging for downstream review

Centralized Backup Stores(Avamar)

Matter Vault

eDiscovery / Preservation Notice Workflow

Form Created

Matter Notice

Legal

CRMO

CRMO IT

Bundle

Request

eDiscovery

Search &

Collect

Exceptions / Approval

Routed to LEGAL for

approval

Legal Notification of

Approval

AUTOMATED

Create Matter Create Preservation

Notices

Matter Items Folder

Preservation

Matter Vault

Preservation

Notice REVIEW

Matter Vault/Records Repository

eDiscovery Collection Methodology

Adapter

Adapter

ECIS Search

Email Archive

Desktop Files

File Shares

Adapter

Adapter

Web Content Store

Automated Intelligent Collection

Legal & RM/IT Teams

Paper Scanning

Manual Collection of Misc. Data

Other AutomatedCollection

Ex: File bundle collection

Primary Focus ofDemonstration

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Evolving Models (continued)Marked by corporate control and management of process . . .

GeneralInfo. Infrastructure

Corporation

Secure MatterRepository

LegalInfo. Infrastructure

Policy-ManagedUnstructured Content

Longer Term

AutomatedSearch &Collection

OnlineProduction

(also possibility?)

Outside Counsel

LegalReview

Attorneys

Note:Online Hosted Review with 3rd party vendors likely to still existfor some corporations in long term model

OnlineReview