the electronic discovery reference model: what does it mean for your organization?

1 ©2010 Hewlett-Packard Development Company, L.P. The information contained herein is subject to change without notice

The EDRM (Electronic Discovery Reference Model): what does it mean for your organization?

Robert L. Tallman

IM Pre Sales Practice – Compliance, Archiving and eDiscovery

robert.tallman@hp.com

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Information and eDiscoveryBackground and Update

– Subtitle goes here

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eDiscovery … Complexity and Risk

Amount of Information

Number of People Involved

Complexity of Process

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Buy More

“Disk is Cheap”

Retain More Information

& Applications

Generate More

The Infinite Retention Trap

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– 1750 – 1900: 150 years to double

– 1900 – 1950: 50 years to double

– 1950 – 1960: 10 years to double

– 1960 – 1992: 5 years to double

– IDC 2007 - there was more digital data

(bytes) created, captured, and replicated

than there are stars in the universe

– It is now estimated that the digital universe measures 900

exabytes (900 billion gigabytes), and the number is

projected to double every 18 months

– By 2020, some estimate that information will double every

73 days

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Complexity – Number of People

Discovery Manager

IT (Applications/DB's,

Document Repositories)

HR(Protected Emp Data,

Privacy Rules)

Business Units(Custodians)

Management

Legal

R&D

Sales & Marketing

Corporate Legal(Case Planning,

Evidence Reviews)

Outside Firms(Evidence Collection ,

Outside Council)

Custodians10’s – 1000’s

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Complexity – Process, Who Is Responsible…

Effective communication is difficult

• E-mail per day

• Attention span measured in seconds, not minutes

• Text messages, Tweets, Instant Messaging, and ???

What’s the priority vs. my “real” responsibilities?

Did we reach everybody?

In the context of their daily job*

• 15% understand legal holds

• 21% understand records retention

* Source: 2008 Kahn Consulting

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Best Practice e-Discovery EDRM - Electronic Discovery Reference Model

www.edrm.net

IT Responsibilities

Legal Responsibilities

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Information Sources

Business applications

Order management,

inventory, financial, etc.

“Structured data”

Communication and

collaboration tools

E-mail, Outlook, SharePoint, etc.

“Semi-structured data”

End user toolsMicrosoft Word, Excel, Adobe

Photoshop, etc.

“Unstructured data”

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Where’s the Data You Need?

Identification

Cloud Stored

Offline Storage

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Lower the costs

• Approaching “Tsunami”

Increase efficiency

• Repeatable process

Mitigate Risk

• Litigation-ready foundation

Changing the eDiscovery Focus

HP’s Perspective:

People, Process and Technology together are the solution….

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Phillip M. Adams & Assoc., LLC v. Dell, 2009WL 910801 (D. Utah Mar. 30, 2009)

– Plaintiff alleged that ASUS Computer International “reverse engineered”

his patented solution to floppy drive data loss

– ASUS produced virtually no evidence supporting its claim that it invented

its solution independently– claiming it simply did not retain records very

long

– Magistrate Judge David Nuffer ruled that ASUS’s “lack of a retention

policy and irresponsible data retention practices…” Violated Rights

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Phillip M. Adams & Assoc., LLC v. Dell, Inc., 2009WL 910801 (D. Utah Mar. 30, 2009)

Issue:

When did the duty to preserve arise and were defendants culpable for

loss of data?

Holding:

Duty to preserve arose based on industry environment, including

litigation on similar issues; culpability was “founded in [defendant’s]

questionable information management practices.”

?

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15

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WL 3833384 (N.D. Cal. Aug. 12, 2008)

Keithley v. Homestore.com, Inc., 2008

– In this patent infringement case the plaintiff requested terminating

sanctions for the Defendants failure to produce evidence.

– Magistrate Judge Elizabeth LaPorte found that the Defendant made

misrepresentations to the plaintiff and the court, failed to do an

adequate search and production initially, and was liable for some

spoliation of evidence, particularly source code

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WL 3833384 (N.D. Cal. Aug. 12, 2008)

Keithley v. Homestore.com, Inc., 2008

Issue:

What sanctions were appropriate for “egregious” discovery violations?

Holding:

“The facts – specifically that Defendants have no written document

retention policy nor was there a specific litigation hold put in place.

That at least some evidence was destroyed…that defendant made

material misrepresentations to the Court and Plaintiffs…and that

Defendants have produced an avalanche of responsive… information

only after the court informed the parties that sanctions were appropriate

– show a level of reckless disregard for their discovery obligations

and for candor and accuracy before the Court sufficient to

warrant severe monetary and evidentiary sanctions”

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No. 80922-4 (Wash. Supreme Court, Nov. 25, 2009)

Magana v. Hyundai Motor America

– Plaintiffs, injured in a car accident with a truck, alleged that their injuries

were partially caused by a design defect in their 1996 Hyundai accent.

– Hyundai initially refused to produce records relating to other failures of

allegedly similar seatback designs.

– Some such records were not preserved.

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No. 80922-4 (Wash. Supreme Court, Nov. 25, 2009)

Magana v. Hyundai Motor America

– “Hyundai had the obligation not only to diligently and in good faith

respond to discovery efforts, but to maintain a document retrieval system

that would enable the corporation to respond to plaintiff’s requests.”

– “Hyundai is a sophisticated multinational corporation, experienced in

litigation.”

– Wash Supreme Court held trial court acted “well within its discretion” in

entering $8 million default judgment plus fees against Hyundai

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Public Perceptions of Big Companies

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Three Keys for eDiscovery

Pre-litigation Readiness is Key: Make sure you have an adequate written document retention policy and archiving system

Be prepared ahead of time with litigation hold procedures that can be quickly and easily implemented when needed

Upon anticipation of litigation, or litigation, be sure to preserve and be prepared to produce all relevant records on a timely basis

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Proactive Steps for Litigation Readiness

– Subtitle goes here

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Infinite Retention

It’s worked so far!! ???

It’s easy

Lack of solutions

Disk is cheap

Lack of awareness

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Energy

Cooling

Backup

Floor Space

Recovery

Replication

PerformancePersonnel

Governance

Compliance

Risk

e-DiscoveryRunaway IT Spend Performance, Storage,

Personnel, …

Diminished End User Productivity

Performance, search, replication, …

Increased RiskInability to meet regulatory compliance / e-Discovery

obligations

Disks May Be CheapInfinite Retention is Not

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We Can Not Spend Our Way Out of this

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…what do I keep?

What do I have?

…for how long?

INFORMATION GOVERNANCEInventory, Analysis, Classification, Archiving, e-Discovery and Records Management

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Are These Important to the Organization?

The email is a record

The paper now has context, authenticated and is dated

Record the context to the activity that the object was used for

A rock painting with recorded context is a record

Objects without context

= not important

Reco

rd C

olle

ctio

n

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• Identification of responsive data relies on select business users

•Legal hold happens at the application level

• Infinite hold on applications?Structured data:

•Rely on a large number of users

•Need to “collect” in order to “preserve”

•Large amount of duplicate dataUnstructured data:

Unstructured Data

Costs are for Processing,

Analysis and Review

Structured DataeDiscovery

expenses are IT & user costs for Identification, Collection and

Legal Hold

eDiscovery pain points

Structured vs. Unstructured Data

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RISK and LIABILITY

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Record Lifespan in a Business Application

Business application

Creation

Non -changeable

Busi

ness

Valu

e

Time

Business complete

Audit

Lawsuit

Dispositioneligible

Expiration

Business users

IT

$$$$$$$$$$1

Entire application subject to legal hold3

4

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Software Solutions

Document

Collection

Document

Collection

100%

100%

Start (Time)

Start (Time)

Software Enhanced Filtering, Deduping and Review

Vo

lum

e o

f D

ocu

men

ts

100%

90

80

70

60

50

40

30

20

10

0

Standard Filtering, Deduping and Review

Vo

lum

e o

f D

ocu

men

ts

100%

90

80

70

60

50

40

30

20

10

0

Trial Counsel Oversight

92%

Elimination of Exact Duplicates

Redundancy Suppression

78%

5%

5%

Detailed Review & Analysis

Detailed Review & Analysis

10%

10%

Manual Review

Document Mapping

Initial Review

Initial Review

Savings

Finish

Conversion

Conversion

Production

Production

Finish

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Managing ComplexityAutomation opportunities to reduce costs

Legal Discovery Process Chain

Volu

me o

f re

sponsi

ve d

ata

Relevance to investigation

Litigation/AuditReady Infrastructure

Preservation, Collection

ProcessReview Analysis

ProductionIdentification

Records, archiving, & search infrastructure choices will:– Impact the initial volume of responsive data.– Enable companies to rapidly prepare for “meet and confer.” – Facilitate operational efficiencies – Drive a repeatable and defensible process

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Capture, classify, preserve, discover, and analyze information faster

Document and records management with HP TRIM

Compliance archiving with HP IAP (Integrated Archive Platform) Legal analytics with Clearwell Systems

www.edrm.net

HP Solutions for Best Practice E-discovery

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Key Benefits

• Apply compliance policy management across the enterprise

• Prove authenticity with version/access control and audit trails

• Reduce risk with global cert. standards and best practices

• Manage physical content with the same rigor as ESI

• Establish and enforce a security structure that automatically governs how workers use information

Key Capabilities

• Seamless integration with MS Office and SharePoint enables easy capture, updating and reuse of business information

• Integrate business and vertical applications with a built-in software development kit (SDK) and Web Services

Document and Records ManagementManage information faster with HP TRIM software

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Business Application

Record lifespan with HP Structured Records Management Solution

Records Management System

Creation

Non Changeable

Busin

ess V

alu

e

Time

Business Complete

Audit

Lawsuit

DispositionEligible

Expiration

Deferred

Delete

Business

Users

Legal / Records Managers

$$$$$$$$$$

Application subject

to legal hold Records Management system supports legal hold

IT

REDUCED

RISK/LIABILITY

12

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5

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Key Benefits

• Control information retention within a centrally-managed, searchable archive solution

• Focus data analysis/processing on the right data set(s)

• Establish and demonstrate an immutable audit trail

• Reduce the need to bring in consultants to assist e-discovery searches

• Manage email with continuous capture, control and protection

Key Capabilities

• Set automated data retention and destruction polices

• Quarantine search results for indefinite periods

• Export quarantined and archived data to legal analytics tools

• Encryption, WORM capability, and digital signatures

• Restrict access and search to authorized personnel

Discover information faster with HP Integrated Archive Platform (IAP)

Compliance Archiving

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Legal Analytics

Key Benefits

• Gain a new level of visibility across all matters

• Decrease costs up to 90%

• Reduce review time from months to hours

• Get up and running < 25 min (turnkey appliance)

Key Capabilities

• Proven, seamless integration with HP IAP

• Enterprise-class e-discovery management

• Simple and intuitive UI for early case assessment

• Industry-leading document processing performance

• Advanced culling, filtering, and analysis

• Rapid reviewing, tagging, and exporting

• Productivity tracking and reporting

Analyze information faster with Clearwell

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• Eliminate unneeded data

• Structured & unstructured data

Lower the costs

• Asset for the knowledge worker

• Centralized access

Increase efficiency

• Enforce retention times

• Immutable audit trailMitigate

Risk

Benefits of HP Solutions for eDiscovery

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eDiscovery Maturity Model

Optimizing cost & efficiency•Can’t use to improve business insight •Legal analysis & contextual searches are difficult & time consuming •Proactive identification of relevant information is inaccurate•Integrating business processes and RM is difficult•Lack of expertise in defining optimal risk/reward tradeoff & a master strategy / deployment plan

Defining & deploying a basic capabilities•No ability to leverage legal knowledge base•Cannot accurately do early case assessment •Preservation (litigation hold) process impacts business•Preservation process does not guarantee integrity of evidence•Collection of evidence is still manual and ad-hoc•Identification of custodians & evidence is too costly

• Admitting there is a problem• Evidence authenticity cannot be proven• Low quality evidence drives extremely high legal analysis fees• Difficult & costly to determine information custodians• IP leakage / loss is continuously occurring• Process is not defensible in a court of law• Non-repeatable ad-hoc process when respond to subpoenas• Little understanding of relevant regulations & business risk

Manual P

roce

sses

Hyb

rid

Auto

mation

Centrally

A

dm

inis

tere

d

Reactive e-Discovery

Mixed Reactive Proactive

e-Discovery

Proactive e-Discovery

Organization Characteristics

Optimizing cost and efficiency

•Identification & preservation centrally managed

•Repeatable, defensible discovery process

•Interested in extending technologies into business insight

Defining and deploying a basic capabilities

•Aware of legal, regulatory, & compliance requirements

•Have taken basic steps to address e-Discovery readiness

•Have identified where lower costs & risk further

Admitting there is a problem

•Don’t have a clear understanding of your business risk

•Spend a lot of money on legal fees

•Duplication of work

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“What is the one thing I have that my competitors do not have? What can I invest in that my competitors cannot replicate?

Information.

It’s the new competitive edge.”

Source: “The Value Factor,” by Mark Hurd & Lora Nyberg

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IM Transformation Experience Workshop: Your first step to a successful Information Management execution

Location: at customer premises or HP Invent Center

Duration: half day

Content: practical, structured, PowerPoint free

Attendees: customer CxO, HP senior consultants

Enrolment: Via assessment questionnaire

Main objectives

•Define your IM needs in a structured way

•Establish where you are / will go on your IM roadmap

•Provide templates, examples and “how to” advice

•Give immediate value, leave behind a report

•Ensure follow up with the same resources in the room

For more information

•Please contact you HP account manager.

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For MoreInformation…

www.hp.com/go/imhub

The new HP InformationManagement Digital Hub

• Discussions

• Best Practices

• Reviews & More

• Contact us

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Q&A

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