we must produce! presented by: terrence coan, crm – director, rm solution line lead baker robbins...
TRANSCRIPT
We Must Produce!Presented by:Terrence Coan, CRM – Director, RM Solution Line LeadBaker Robbins & CompanyCharlene Wacenske – Firmwide Records ManagerMorrison & Forrester LLPScott Christensen – Director, Information ServicesBell Boyd & Lloyd LLP
Agenda
IntroductionsESI – Electronically Stored InformationDiscovery steps and best practicesPartnership between Records Management and ITTwo firm’s perspectives
Intersection of RM and Discovery
What is ESI and Why is it Important?ESI is now the dominant method of storing informationESI is different than paper
Persistent (“delete” is a misnomer)Dynamic (susceptible to changes in ways predictable and mysterious)Ubiquitous (copies can exist in many places at once: servers, e-mail, PDA’s, backup media, hard drives, portable USB drives, iPods, phones, cameras, almost anywhere on the Internet, and more!)
Difficult to establish office of record or custodian
The volume is staggering – processing can be extremely costly1GB = 75,000 pages (30 boxes)100GB = 7.5 million pages (3,000 boxes)1TB = 1,000GB = 75 million pages (30,000 boxes)
Clients are Paying Attention to ESI
Heightened compliance requirementsChanges to FRCPSarbanes-Oxley Regulatory agency requirementsSecurity, privacy, confidentiality obligations
Potentially dramatic increase in costsData retention and preservationLitigation readinessLitigation managementPotential for sanctions
Business interruption issues
Attorney/Client Privilege
Clients are increasing waving privilegePost Enron - era of transparencySEC regulations
Law firm client records are…Now “front and center”Increasingly relevant in client document production
A Duty to Preserve
When does the duty to preserve arise?“Reasonable anticipation” of litigationWill always depend on the specific circumstances of the caseA plaintiff’s duty to preserve may begin earlier than the defendant’s
An event will trigger notice to the company that litigation can reasonably be anticipated
Whether or not the event constitutes notice to the company will depend on the situationThe moment at which litigation is reasonably anticipated will depend on the facts of the case
Timeline
????
?Duty to Preserve
Date varies based on triggering event
30-60 Days
Complaint/Denial to Dismiss 16(b) Conference
- Access Systems/Data- Preserve Data- Create Discovery Plan
< 14 Days
> 21 Days
Discovery
Initial Disclosures
26(f) Meet & Confer
Amendments to Federal Rules of Civil Procedures impose even more time pressure on e-data discovery issues
This diagram is for illustrative purposes only. CHECK LOCAL RULES
Issuing the Hold
Notice should provide enough specificity that recipients understand the scopeNotice should be sent by the general counsel to relevant lawyers and staff The notice should make clear that compliance is mandatoryThe firm’s records management and technology teams should jointly participate in holdsA point person should be designated to respond to questions and to provide additional information
Managing the Hold
Document all preservation efforts Regular reminders and follow-up efforts should be undertakenMultiple litigation holds require coordination It is important to release a hold properly and at the appropriate time
Collection – Data Integrity is EssentialPreparation and planning are key to a successful collectionDefensible and forensically sound procedures must be followed to collect ESIConsistent methods for extraction of materials from native systemsMeticulous recordkeeping is required throughout the process
Track collection details using collection & chain of custody logs Identify and track potential authenticating witnessesThe log should be sufficiently clear that anyone can assume responsibility for the continuing collection of the documents/dataEach document/data file must be treated as critical to ensure it can be used at trial
Process & Review
The human element of the review can be the most complicated and costly aspectThe logistics of organizing and managing the review are challenging and therefore time-consuming and expensive
Document productionOnline review
Attorney review time is approximately 80% of the cost of online reviews
Winnowing the Collection
Body of PotentialDocuments & Data
PotentiallyRelevant
IssueRelevant
PotentiallyResponsive
Produced
E-mail, IM, Bloomberg Network Shares and
Hard Drives Documents Data
E-mail collected Documents/Data
Collected Forensic Data collected
Materials for Outside Counsel to Review
Potentially includes confidential and/or privileged materials
Annotated and Redacted Collections
Agreed-Upon Production Formats
Reduced Sets of Materials for Review; Culled through Automation
Early Issue Reviewed Documents/Data
Legal Hold Email archiving Declaration of business
records
Custodian filtering (e.g. key player’s mailbox)
De-duplication & file type culling
Keyword culling e.g. “option grant”)
Early issue review Regulatory production Document processing
(PDF, TIFF)
Issue coding (hot documents)
Privilege identification Document annotation
Redaction Bulk printing/disk
creation Trial preparation
Production
Format of the production Digital or hardcopyIf digital on what media
If the materials are simply leaving the firm (vs. a formal production) does the firm retain copies?What documentation of the release is retained
Formal productionsLateral attorney transfers
Two Firm’s Perspectives
How to gather ESIWhere to store and manage ESI for attorney reviewHow to package and produceTools in the arsenal
Morrison & Forrester LLP – MailPort
Morrison & Forrester LLP – MailPort
Morrison & Forrester LLP – MailPort
Morrison & Forrester LLP – MailPort
Bell Boyd & Lloyd LLP - iExtract
Bell Boyd & Lloyd LLP - iExtract
Bell Boyd & Lloyd LLP - iExtract
Bell Boyd & Lloyd LLP - iExtract
Bell Boyd & Lloyd LLP - iExtract
Bell Boyd & Lloyd LLP - iExtract
Bell Boyd & Lloyd LLP - iExtract
Bell Boyd & Lloyd LLP - iExtract
Bell Boyd & Lloyd LLP - iExtract
Bell Boyd & Lloyd LLP - iExtract
Bell Boyd & Lloyd LLP - iExtract
Bell Boyd & Lloyd LLP - iExtract
Bell Boyd & Lloyd LLP - iExtract
We Must Produce!
Discussion?
Terrence Coan, CRM – [email protected] Wacenske – [email protected]
Scott Christensen – [email protected]