e discovery presentation-aiim

AIIM – 5/13/2010

1

E-Discovery Best Practices

Diane R. Gladwell, MMCPresidentGladwell Governmental Services, Inc.,(909) [email protected]

1 ©2010 Gladwell Governmental Services, Inc. - all rights reserved. Do not duplicate or distribute without prior written permission

Reasons to Procrastinate…

1. Hunting for important documentsadds excitement to a boring schedule.

2. Being as confused as everyone elsehelps you fit in.

3. Problems magnify your importance.2

Agenda for Today

1. Your Goals & Concerns2. Terminology3. Legal Foundation4. The Character & Basics of a Lawsuit5. Best Practices

1. Before Litigation2. During Litigation

©2010 Gladwell Governmental Services, Inc. 3

Your Goals & Concerns…


Terminology (1 of 4)

E-Discovery: Discovery phase of litigation – focused on electronic records

ESI: Electronic Stored Information

Data Mining: Extraction of detailed and summary data / records.



Media: What a record is stored on: Paper, magnetic (computers, tapes, disks), microforms, optical disks (WORM / CD / DVD), WORM-Tape, etc.

Metadata: Index information added to describe the document (e.g. date, document type, document number). Also called template data, field data, index data, etc.


AIIM – 5/13/2010

2


ROI: Risk of IncarcerationROI: (Savings from investment – cost / cost) x 100 = ROI%

AIIM (2008): 94% of ECMS projects have a one year ROIReal ROI: Avoidance of e-discovery costs

City of Beaverton: $500,000 in e-discovery …. The opposing Attorney went on the website and found more … Total bill: $700,000



Taxonomy: Classifying Information / Naming Conventions (think controlled vocabulary)

Text Mining: Locating text that contains specific terms in an electronic record (think Full Text Searches)


AIIM, International

“Without a set program for destruction of outdated e-records, a company faces

the possibility that a subpoena will require the retrieval and legal review of so many e-mails and other electronic

files that the most economical decision is to settle the case.”

– John F. Mancini, CEO, AIIM International

©2010 Gladwell Governmental Services, Inc. - all rights reserved. Do not duplicate or distribute without prior written permission

9 ©2010 Gladwell Governmental Services, Inc.

E-Records, if “Record Copy”

Must be kept pursuant to routine procedures designed to assure their accuracy – Federal Rules of Evidence, Rule 803(6)

.. reflect the content, structure, and context within the system. Electronic records should be inviolate (not damaged, destroyed, or modified), coherent (represent logical relationships), and auditable (actions taken to the document can be documented) – Model Guidelines for Electronic Records, National Historical Publications and Records Commission

10

Federal Rules Of Evid. (1 of 5)

In discovery, organizations may not be required to produce electronically stored information that is not reasonably accessible because of undue burden or cost.

Electronically stored information is produced in the form “in which it is ordinarily maintained” or in a “reasonably useable form.”


Federal Rules of Evid. (2 of 5)

As long as organizations comply with other laws and rules (e.g. have policies, procedures and training so that we do not destroy records after we reasonably anticipate litigation), we won’t sanctioned for failing to provide electronically stored information lost as a result of the routine, good faith operation of the party’s electronic information systems.


AIIM – 5/13/2010

3


Organizations must suspend routine document destruction (including electronically stored information), placing a “litigation hold” to ensure preservation of relevant documents when we reasonably anticipate litigation.



The way organizations manage backup tapes has significant impact on what we must produce in litigation, and litigation holds. Example: If you actively use the backup tapes for information retrieval, they are subject to litigation holds.

Use Backup Tapes for Disaster Recovery Purposes Only



Information Technology employees may be included in the “Discovery Conference” to discuss issues relating to disclosure or discovery of electronically stored information (ease of access, costs to produce, how you manage and retain e-mail, policies and procedures for managing and retaining e-mail and other types of records, etc.)


Character of a Lawsuit

Differences of Opinions Weaknesses on both sides

Don’t conceal: Your attorney needs to know all weaknesses!When may be more important than what

Most cases resolve out of courtThe attorney will try to resolve it before the deadlines (cost avoidance) Plan to only have a couple of days to do interrogatories, discovery, etc.


Basic Steps of a Civil Lawsuit

1. Complaint / Petition for Writ of Mandate

2. Summons / Service of Process (90 days, some exceptions)

3. Answer / Demurrer (30 days State, 20 Federal)

4. Pleadings5. Meet & Confer / Discovery Conference


Basics Steps of a Civil Lawsuit

5. Discovery: Fact-finding Rounds - End 60 or 30 days prior to court dateBroad: Reasonable basis that it might lead to some admissible evidenceDepositions (Questioning under Oath)Interrogatories (who knows where the records are?)Produce Administrative RecordRequest for Production of RecordsWhat’s privileged? (Now it’s easier to take back)


AIIM – 5/13/2010

4

Basic Steps of a Civil Lawsuit

Mediation / Alternative Dispute ResolutionCourt HearingsJudgment / Dismissal / DecisionAppeal? (30 days)


Best Practices - Prepare

Pro-Active Preparation: Do it NOW!Bring in outside expertise when needed!

1. Create a team:AttorneyIT DirectorRecords Manager(s) / Coordinator(s)



2. Reduce Your Risk: 1. Policies, Procedures & TRAINING

1. Identify vulnerabilities in authentic, trustworthy, reliable records

2. Litigation Hold Procedure3. E-mail management4. Naming conventions and file folder structures (photos)5. Outlaw “Black Markets” (saving e-mail to archives, C:

drives, send to gmail accounts, etc.)6. Audit trails (who accessed what, when)7. Social Media (Facebook, Twitter, etc.)



3. Litigation Hold ProcedureClear Roles & ResponsibilitiesClear Directions:

List of KeywordsPrint this e-mail, reply to the e-mail

Broadcast e-mails are not enoughAcknowledgement requiredIn-person / phone call confirmation


©2010 Gladwell Governmental Services, Inc. - all rights reserved. Do not duplicate or distribute without prior written permission


4. Implementation: “Free the Files” Days• Always Start with Training• Clear Direction and Forms• Supervision • Checks & Balances

5. Training, Training, TrainingNew Employee OrientationAnnual or Biennial City-wide TrainingIndividual “Hands On” for Some

23

Best Practices - During

Trigger: Reasonably Anticipate Duty to Preserve anything relevant: Knowable, reasonably anticipatedRecords Retention Policies & Procedures are importantBring in Expert AssistancePenalties Severe

Pay for forensic / inaccessible ESIJury Instruction: Assume they concealed potentially damaging evidence


AIIM – 5/13/2010

5


2. Create a Map of DataPhysical possession is not the determining factor

California State University v. Superior Court (2001) 90 Cal.App.4th 810, Cal.Rptr.2d 870

ID all data sources: PDAs, USB keys, photos, voice mail, security systems, website pages, home computers, SaaS ASP Services (Recruitment, Video Streaming,) etc.

©2010 Gladwell Governmental Services, Inc.


Collect Relevant ESIHave Attorney narrow the scope

Search words that make sense to the case Place data in a separate folder

Relevant? Privileged?Carefully review and eliminate exact duplicatesSearchable Format


Questions & Answers


e discovery presentation-aiim

Education