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eDiscovery 911: Building a discovery response team for effective legal hold management

26 August 2008

Association of Corporate Counsel

www.acc.com

eDiscovery 911: Building a discovery response team for effective legal hold management

26 August 2008

Association of Corporate Counsel

www.acc.com

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Gartner predicts that through 2010, companies that have not adopted formal e-discovery processes will spend twice as much on gathering and producing documents as they will on legal services

Recent AIIM survey - 68.6% of organizations with 10,000 – 50,000 employees have a formal system for preservation and legal holds in place

More than 51% have not identified anyone to testify regarding electronically stored information

Executive considerations on discovery response planning initiatives …

Market Insights: Discovery Response

Market Insights: Discovery Response

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Legal Considerations and Ramifications: Duty Date

Determinations

Legal Considerations and Ramifications: Duty Date

Determinations Duty to preserve based in statute or regulationDuty to preserve after service of process or notice of investigationDuty because company “reasonably anticipates litigation”

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Legal Considerations and Ramifications:

Repercussions of Mistakes Can Be

Severe

Legal Considerations and Ramifications:

Repercussions of Mistakes Can Be

Severe Spoliation or adverse inference instructionsObstruction of justice chargesMonetary sanctionsEntry of an adverse judgmentEven if these are avoided, loss of credibility and trust

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Discovery Response ProgramsDiscovery Response Programs

A framework of strategies, policies, plans and methodologies Enables a company to define and plan for projects that support the company’s cost-effective and efficient compliance with its discovery obligationsImplemented by a Discovery Response Team

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The courts

and regulator

s are raising

the bar…

Higher expectations when it comes to providing evidence (records)Courts - and the revised Federal Rules of Civil Procedure - assume that rational and effective internal procedures are being followed Shorter period of time to respond to document requestsNo excuses for missing records or incomplete responsesRaised expectations around the systems to retain and produce responsive records

Response Teams: Why Are They Necessary?

Response Teams: Why Are They Necessary?

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Saves time and moneyDecisions made in the heat of the moment will be second guessed laterNot only paper documents, but electronically stored information (ESI) must be preservedProper handling worth less if not accompanied by proper documentation

Legal Considerations and Ramifications:

Advantages of a Response Team

Legal Considerations and Ramifications:

Advantages of a Response Team

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DiscoveryResponseProgram

Legal Department, IT, Compliance,

Records Management, Business Units

Create – Capture – Classify – Store – Search -- Dispose

Records & Information Management Program

Legal HoldDocument Production

CollectReview/Analyze

Produce Identify

& Communicate

Preserve

Formal Electronic Records

HardCopy

Records

Personal Computers

Network Shares

Server EmailBusiness Systems

OtherESI

Records Managers User Custodians IT Custodians

Dat

a G

over

nanc

e B

oard

Governance

Program & Framework

Stakeholders

Function

Data Sources

Establishing a Framework for Governance: An Example

Establishing a Framework for Governance: An Example

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Response Teams: Building the TeamResponse Teams: Building the TeamGCO/Legal

Develop scope of the matter, oversee legal hold project, assist in identification of relevant ESI, supervise outside counsel

Records ManagementAssist with ESI mapping, define data retention policies and schedules

Program ManagementDocument, supervise and coordinate all elements of response team and plan, oversee third party vendors, work with Compliance for plan improvements

IT & Other DepartmentsAssist with ESI mapping, implement legal holds, assist in maintaining data retention policies and schedules, assist with any document collection and/or productions, have information relevant to identification of custodians and ESI

Business Unit LeadersProvide insight on the BU structure, operations and component business processes to identify potentially relevant information

CompliancePerform internal audits, evaluate discovery response plans for areas to improve

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The Development of a Discovery Response Program

The Development of a Discovery Response Program

Record Coordinators

Office and

Officer of Record

Systems of Record

Implement Hold Plan

Identify Relevant Data/Record TypesIdentify

Custodians

Update Classification

Scheme

Train Records

Coordinators Update Retention Schedule

Update Data Maps

Train 30(b)(6) Witnesses Review Tools

Revise Response

Plan Classification Scheme

Retention Schedule

Continuous Improvement

ExecutionDiscoveryEvent

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Legal Considerations and Ramifications:

The Scope of ESI

Legal Considerations and Ramifications:

The Scope of ESIAsk yourself: Without a team ready in advance, could my company timely lock down documents in all formats and locations? Even if so, would the documentation of those efforts withstand scrutiny?

ESI includes not only the expected e-mail, word processing files, and spreadsheetsESI also includes instant messages, text messages, voice mails, PowerPoint or other presentation slides, pictures, and web pages – but that’s not all!ESI includes the metadata for all of the aboveFor multinational corporations, the paper documents and ESI may exist in foreign lands and languages, with attendant cultural, language, and logistical considerationsAnd it’s not only in file drawers anymore: it’s on phone machines (desktop and cell); laptops; Blackberries, Palms and other hand held devices; hard drives (desktop and free standing); CDs; and thumb drives

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What Tools Does the Discovery Response Team Use?

What Tools Does the Discovery Response Team Use?

Current ESI mapCommunication protocolHold tracking/reporting toolEscalation protocolCompliance processDocumentation templates

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What Process Should Your Discovery Response Team Follow?

What Process Should Your Discovery Response Team Follow? Scope and approach established Response team activated Custodians notified In scope ESI identified and preserved Existing holds cross-referenced Compliance monitored according to case

discovery plan Case documentation developed, reviewed and

updated Exceptions investigated and resolved ESI disposition when hold is lifted

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Records and Information Management Risks The Response Team May ConsiderRecords and Information Management

Risks The Response Team May Consider

Situation

Lack of developed records retention schedulesLegal Holds preserve too much or too littleLack of a coordinated and communicated discovery response planInadequate Records Management infrastructure and policies

Strategy

Prioritize business lines with high discovery riskDevelop a data preservation plan Communicate and monitor standardized procedures

Preservation planProcess for collection and reviewDefine production protocol

Uniform approach for records management

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Technology Risks Your Response Team May Consider

Technology Risks Your Response Team May Consider

Situation

Inconsistent internal response to discovery requestsInadequate electronic information inventoryNo plan for preserving and collecting emerging data sources Difficulty retrieving data from obsolete systems or media

Strategy

Develop standard response to data interrogatories Centralized electronic information repositoriesIdentify data sources at risk of discoveryEvaluate ability of systems to support discovery

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Monitor for understanding and compliance

Employees do what you inspect,

not what you expect

Periodically review discovery efforts and develop feedback to improve the discovery response plan

Demonstrate that the company takes

discovery seriously Compliance

The Response Team’s Role In Monitoring Compliance

The Response Team’s Role In Monitoring Compliance

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Question & Answer Session

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Please contact with any questions:Please contact with any questions:David WetmoreErnst & Young LLPExecutive DirectorFraud Investigation & Dispute ServicesForensic Technology & Discovery [email protected], MN612-371-6342

Ben Hawksworth, PMP CFEErnst & Young LLPSenior ManagerFraud Investigation & Dispute ServicesForensic Technology & Discovery [email protected], DC202-327-5828

Monica J. Palko, Esq.BearingPoint, Inc.Associate Corporate Counsel –

LitigationOffice of the General [email protected], VA703-747-4413

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