Friday, April 03, 2009

Kevin Nugent Regional Sales Director

Data Minimization: Defensible Culling

Techniques

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About Kevin

• With Encore since January 2008 and based in Washington, DC, as Regional Sales Director, Kevin is responsible for managing sales team and business development activities throughout the Eastern Region.

• Kevin has 20 years of experience in the management services & e-Discovery industries.

• He has worked with many of the leading Am Law 200 firms & Fortune 500 companies.

• He previously worked for Xerox, Pitney Bowes, IKON Office Solutions and Capital Legal Solutions.

• Kevin holds a B.S. in Public Administration from Eastern Michigan University.

• He is a board member of the Cystic Fibrosis Foundation.

About Encore

• Recognized as a Top 10 eDiscovery Service Provider in the 2007 and 2008 Socha-Gelbmann Survey.• Web Repository hosts over 3,000 active databases exceeding 140 TB of data.• Largest Channel Partner for Concordance, iConect and soon Clearwell.• In-depth experience working with law firms, corporations and most federal government agencies.• Technology agnostic approach to meeting our clients needs.• Only National eDiscovery Services Provider to establish a dedicated Subprime Services Unit addressing the specific needs of companies and corporations impacted by the mortgage and credit crisis.

Encore Discovery SolutionsNational Coverage with Local Support

Washington DCNew JerseyChicagoLos AngelesNewport BeachSan Francisco Bay AreaPortlandDenverAustinHoustonSan AntonioPhoenix:

• Company Headquarters• NOC (National Operations Center)• SAS-70 Certified Data Center

Encore Discovery SolutionsDiscovery Lifecycle Solutions

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Fact: ESI Spending

In 2009, In House Legal Counsel will spend on average $500,000 annually on:

1.ESI Planning 2.Practice Management3.Electronic Discovery

* Fulbright & Jaworski 2008 Litigation Trends Survey

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Fact: What Areas Concern You Most?

According to a recent survey conducted on 325 representatives, the two leading areas

of concern for in-house counsel in 2009 are:

Cost Management

Electronic Discovery

* Fulbright & Jaworski 2008 Litigation Trends Survey

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Significant Decisions For EDiscovery

On May 29, 2008, the U.S. District Court for the District of Maryland issued a lengthy and noteworthy ruling regarding the discovery of “electronically stored information” or “ESI.” The court held that the defendants waived the attorney-client privilege and work-product doctrine with respect to 165 separate documents.

The case is particularly instructive because it describes in detail the multiple steps that a litigant should take in order to:

(1) protect against the inadvertent disclosure of privileged ESI;

(2) preserve the privileged status of ESI in the event that it is inadvertently

disclosed; and

(3) defend the methodology used to search for relevant ESI.

Victor Stanley Inc. v. Creative Pipe Inc.

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The Defensibility Decision

Collaboration

Defensibility

Best Practices

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The Collaborative Search Approach

• The parties, presumably as part of the meet and confer process must “confer with their opposing party in an effort to identify a mutually agreeable search and retrieval method.

This minimizes cost because if the method is approved, there will be no dispute resolving its sufficiency, and doing it right the first time is always cheaper than doing it over if ordered to do so by the court.”

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E-Discovery Best Practices

• Best Practices & Data Driven Search Approach: In order to have a defensible methodology in the absence of collaboration a party needs to:

– “be aware of literature describing the strengths and weaknesses of various methodologies, such as The Sedona Conference Best Practices ,…. and select the one that they believe is most appropriate for its intended task.”

– And, if their selection is challenged, then they should expect to support their position with “affidavits or other equivalent information from persons with the requisite qualifications and experience, based on sufficient facts or data and using reliable principles or methodology.”

– Finally, they should do appropriate levels of data sampling and quality assurance to test core search assumptions.

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Taming The E-Discovery Beast

Enterprise EDD costs are skyrocketing and the need to rein them in is a top concern

The $6M example: Fannie Mae Sec. Litig., 552 F.3d 814 (D.C. Cir. 2009)

● 400 search terms – resulting in hits on over 80% of the emails● 600,000 documents reviewed with 50 contract attorneys● And, the non-party (Office of Federal Housing Enterprise Oversight) was

still held in contempt

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Approaches to Reducing Enterprise E-Discovery Costs

1. Control information propagation

2. Delete/destroy when possible

3. Review cheaper: utilize contract/off-shore review attorneys

4. Review faster: utilize advanced review technologies

5. Review less: utilize defensible data reduction technologies

6. Perform early case assessments

7. Bring more processing, analysis & review in-house

Facts: Data Minimization Strategies

Utilizing data minimization strategies and solutions lowers e-discovery processing costs by reducing the volume of data to be

examined during each phase of the discovery process.

In large, document-intensive cases, a 40% to 80% data reduction can be achieved, allowing counsel to receive data in a fraction of the time

traditionally required.

This process makes collected data available for pre-case assessment and analysis virtually as soon as it has been gathered.

Forensic Collection & Analysis

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Targeting The Custodial Population

Targeted Custodians

Admin. Asst. & Other Executives

Outside Vendors & Consultants

Staff & Clerical Personnel

Forensic Collection & Analysis

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Self collection by corporate/internal IT staff

Vendor collection of ESI making a copy

Vendor collection of ESI forensically imaging targeted files

Vendor collection of forensic image of all relevant custodian units and servers

Collection Methods Cost Risk

MODERATE

HIGH

MODERATE

Best Practices: 5 Steps To Data Minimization

Collected ESI

Filter by File TypeFilter by Date

System and Program FileRemoval (De-NIST)

Keyword Filtering

Advanced Analytics

Smart De-duplication

• What file types are included?• File Type List Analysis

• What if file name is changed?• File Signature Analysis

• Remove known program files• NIST list• Extensions for proprietary software

• Duplicates removed or suppressed?• Attachments versus loose files• How about forwarded emails

I.

II.

III.

• Black box versus Interactive • Knowing the data

augments knowing the issues• Stemming• Zip files, embedded files, etc.

IV.

• Know data before processing• Email threads• Domain filtering• Participant analysis & filtering• Conversations• Topics

V.

Traditional Approach to E-Discovery Presents Three Significant Challenges

1. Is early case assessment really EARLY?

2. Does blind culling result in TOO MUCH DATA?

3. Are your search results DEFENSIBLE?

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Clearwell Reduces Cost, Time and Risk of E-Discovery

• 3-5X faster processing• Comprehensive de-duplication across all case documents• Automated processing, eliminating manual effort

Rapid Processing

Time

• Superior culling and filtering (by domain, sender, recip.) • Advanced analysis by discussion threads, topics, groups• Defensible search: sampling, testing and iterative refinement

Search, Cull-Down & Early Case Assessment

• Rapid reviewing, tagging and exporting• Productivity tracking and reporting• Pre-built integration with review platforms

First Pass Review

Client Machines

Email Servers

Files/Servers

Archives

CaseDocuments

Enterprise Search Technology is a “Black-Box”, Inhibiting Defensibility of E-Discovery Search

1.2TBFor Review

2TBCollected

De-Duplication

Keyword

Date Range

Custodian

??

• No visibility into how or why the results were produced

• Refining searches takes days

• Difficult to document the search refinement process

• Keyword searches can be over or under inclusive

Client Machines

Email Servers

Files Servers

Archives

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E-Discovery Search Needs to Become More Transparent

200GBFor Review

2TBCollected

• Provide visibility into how results are produced

• Reduce over and under-inclusiveness

• Speed up search testing and refinement

• Automate documentation

Thank you for joining us

Kevin P. NugentRegional Sales Director

202.445.9343knugent@encorediscovery.com

Our eDiscovery Volume Reduction Calculator is available at: www.EncoreDiscovery.com/EVRC

This tool can help you determine how data minimization can reduce your discovery costs and shorten your electronic discovery processing time.