eDiscovery 2011:Trends, Risks and Best Practices

1EMC CONFIDENTIAL—INTERNAL USE ONLY.

Trends, Risks and Best Practices

July 14, 2010

EMC & Kahn Consulting Inc.

Introductions

Randolph A. Kahn, Esq.

2EMC CONFIDENTIAL—INTERNAL USE ONLY.

Jim Shook, Attorney, EMC

Karthik Kannan, Sr. Dir., EMC

Discovery’s Perfect Storm is Getting More Perfect

Volume

1800 exabytes of new data 2011

200+ billion email per day

Value

All kinds of business being done in new mediums

Courts getting more sophisticated

and demanding

“I dream of a better tomorrow, where chickens can cross

3

and demanding

Destruction of evidence is more

likely and more painful

Info mismanagement ubiquitous

So what to do in a down economy

can cross the road and not be questioned about their motives.”

Need to Fix Disconnects

•IT cares about the value of information in their systems?

•Back up should be used for discovery?

•Bad RIM means responding to document requests in a lawsuit is super duper fun?

•IT buys technology today without considering its

“I think

people tend

to forget

that trees

are living

creatures.

They're sort

of like dogs. •IT buys technology today without considering its legal and compliance needs?

•Discovery is the act of finding something really great in places you never imagined?

of like dogs.

Huge, quiet,

motionless

dogs, with

bark

instead of

fur.”

Jack Handy

Better Define Discovery Objectives

“… nearly five years after the intelligence community was rebuked by the 9/11 commission for failing to “connect the dots”…“[t]oday, an analyst’s query might scan only 5% of the total intelligence data in the U.S. government, said a senior intelligence official. ” WSJ 2/22/09

“If we aren't

supposed to eat

animals, why are why are

they made with

meat?”

Are you prepared to do discovery on social networking content?

See Crispin v. Christian Audigier, Inc.,

Bad Proactive=Painful Reactive

“In an Aug. 15, 2005, voicemail messages addressed to company salespeople, an …employee… followed up on a “weight and diabetes sell sheet” that had recently been sent.” “…the document written by Dr. Geller doesn’t accurately reflect the company’s position in 2000. In fact, it was not Dr. Geller’s ultimate view either. It was an initial draft for discussion purposes.” “In response to a plaintiffs’ attorney’s question, Dr. Geller responded that the statement was “an artifact of an earlier discussion document.” WSJ 2/27/2009

I am not a vegetarian because I love animals;

I am a vegetarian

artifact of an earlier discussion document.” WSJ 2/27/2009vegetarian because I hate plants.

Whitney Brown

An internal study by DuPont showed that, in responding to discovery requests over a three-year period, DuPont reviewed more than 75 million pages of text. It found that more than 50% of the documents that it reviewed were kept beyond their required retention period, and it calculated that the cost of reviewing just those documents that had exceeded their retention periods was $12 million.

Bringing Discovery In-house

•It’s Not “If”, It’s “When”

•Control Cost

•Don’t boil the ocean, control one phase at a time

• Frequent discovery = In House

“Bank of America

Subpoenaed on Bonuses”WSJ 2/27/2009

Supreme Court made clear that government employer’s search through an employee’s text messages was reasonable and did not violate employee’s rights. City of Ontario v. Quon

Cost, Costs and More Costs

Personnel costs

Technology

Storage Costs

Costs of outsourcing

Lack of preparedness costs

“While I appreciate that it would be difficult for [defendant] … to go back through its papers to determine whether all of the documents contained therein have since been produced and …present counsel did not supervise …the…search for e-mails, I also appreciate that it is a burden of [defendant] own making. [Plaintiff]should not be penalized by [defendant’s] failure to maintain its discovery materials in some sort of organized fashion or keep some record of its own actions in this lawsuit.”Covad Communications Co. v. Revonet, Inc.

Expect Discovery Beyond Email

“..In an employment discrimination suit ... the employer sent the policy to the employee via a mass email containing two links to the policy and did not require any further action ... the employee claimed that he received a large volume of mass company emails daily and that he could not specifically remember the arbitration policy. Although an email ‘tracking log’ indicating the time and date that the employee opened the email, the employer could not prove that the employee had actually read the email or clicked on the links. The court determined that the mass email did not constitute sufficient notification and further admonished the employer for not taking ‘the incredibly simple and inexpensive step of configuring their system to log when

"There Are Three Kinds of People -Those Who

FDA Says Cookie Dough . . . has tested

positive for E.coli … FDA has been

examining…records. WSJ, 6/30/09

incredibly simple and inexpensive step of configuring their system to log when and if employees clicked on the links.’" Campbell v. General Dynamics Those Who

Can Count and Those Who Can't”

Employees Aren’t Getting it

“When

you come

to a fork

in the in the

road,

take it.” Yogi Berra

Need to Build Defensible Process

“…Bloomberg News reported over the weekend, Intel’s general counsel stated that e-mails for 151 employees who were to have been instructed to retain them as possible evidence in the AMD antitrust trial were lost by virtue of a single IT manager misreading a spreadsheet where the employees’ names were first distributed” employees’ names were first distributed”

BetaNews 3/19/ 2007

“Fluor's e-mail retention policy provided that backup tapes

were recycled after 45 days. If Fluor had followed this

policy, the e-mail issue would be moot. Fluor does not explain

why, but it maintained its backup tapes for the entire 14-

month period.” Murphy Oil v. Fluor Daniel

Conclusions

• People, Process & Technology

• Discovery is here to stay

• Take control of the process

• Use technology to help

• Being proactive makes reacting less painful

"Why does Sea World have a seafood restaurant? I'm halfway through my fish burger and I realize, Oh man ... I could be eating a slow learner.”

Thank you!

13EMC CONFIDENTIAL—INTERNAL USE ONLY.

Randolph A. Kahn, ESQ.

rkahn@kahnconsultinginc.com

847-266-0722