Hide Notes 

Slide 1: AIIM – 5/13/2010 Reasons to Procrastinate… E-Discovery Best Practices 1. Hunting for important documents adds excitement to a boring schedule. Being as confused as everyone else helps you fit in. Problems magnify your importance. ©2010 Gladwell Governmental Services, Inc. - all rights reserved. Do not duplicate or distribute without prior written permission Diane R. Gladwell, MMC President Gladwell Governmental Services, Inc., (909) 337-3516 Info@gladwellgov.org www.gladwellgov.org 2. 3. 1 2 Agenda for Today 1. 2. 3. 4. 5. Your Goals & Concerns… Your Goals & Concerns Terminology Legal Foundation The Character & Basics of a Lawsuit Best Practices 1. 2. Before Litigation During Litigation ©2010 Gladwell Governmental Services, Inc. 3 ©2010 Gladwell Governmental Services, Inc. 4 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. ©2010 Gladwell Governmental Services, Inc. Terminology (2 of 4) 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. ©2010 Gladwell Governmental Services, Inc. 5 6 1
Slide 2: AIIM – 5/13/2010 Terminology (3 of 4) ROI: Risk of Incarceration ROI: (Savings from investment – cost / cost) x 100 = ROI% AIIM (2008): 94% of ECMS projects have a one year ROI Real 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 ©2010 Gladwell Governmental Services, Inc. Terminology (4 of 4) Taxonomy: Classifying Information / Naming Conventions (think controlled vocabulary) Text Mining: Locating text that contains specific terms in an electronic record (think Full Text Searches) 7 ©2010 Gladwell Governmental Services, Inc. 8 AIIM, International “Without a set program for destruction of outdated e-records, a company faces the possibility that a subpoena will require the retrieval and legal review of so many e-mails and other electronic files that the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 9 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 ©2010 Gladwell Governmental Services, Inc. ©2010 Gladwell Governmental Services, Inc. - all rights reserved. Do not duplicate or distribute without prior written permission 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.” ©2010 Gladwell Governmental Services, Inc. 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. ©2010 Gladwell Governmental Services, Inc. 11 12 2
Slide 3: AIIM – 5/13/2010 Federal Rules of Evid. (3 of 5) 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. Federal Rules of Evid. (4 of 5) 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 ©2010 Gladwell Governmental Services, Inc. 13 ©2010 Gladwell Governmental Services, Inc. 14 Federal Rules of Evid. (5 of 5) 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 email and other types of records, etc.) ©2010 Gladwell Governmental Services, Inc. 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 court The attorney will try to resolve it before the deadlines (cost avoidance) Plan to only have a couple of days to do interrogatories, discovery, etc. ©2010 Gladwell Governmental Services, Inc. 15 16 Basic Steps of a Civil Lawsuit 1. Basics Steps of a Civil Lawsuit 5. 2. 3. 4. 5. Complaint / Petition for Writ of Mandate Summons / Service of Process (90 days, some exceptions) Answer / Demurrer (30 days State, 20 Federal) Pleadings Meet & Confer / Discovery Conference 17 ©2010 Gladwell Governmental Services, Inc. Discovery: Fact-finding Rounds - End 60 or 30 days prior to court date Broad: Reasonable basis that it might lead to some admissible evidence Depositions (Questioning under Oath) Interrogatories (who knows where the records are?) Produce Administrative Record Request for Production of Records What’s privileged? (Now it’s easier to take back) ©2010 Gladwell Governmental Services, Inc. 18 3
Slide 4: AIIM – 5/13/2010 Basic Steps of a Civil Lawsuit Mediation / Alternative Dispute Resolution Court Hearings Judgment / Dismissal / Decision Appeal? (30 days) Best Practices - Prepare Pro-Active Preparation: Do it NOW! Bring in outside expertise when needed! Create a team: Attorney IT Director Records Manager(s) / Coordinator(s) 19 ©2010 Gladwell Governmental Services, Inc. 1. ©2010 Gladwell Governmental Services, Inc. 20 Best Practices - Prepare 2. Best Practices - Prepare 3. Reduce Your Risk: 1. Litigation Hold Procedure Clear Roles & Responsibilities Clear Directions: List of Keywords Print this e-mail, reply to the e-mail Policies, Procedures & TRAINING 1. 2. 3. 4. 5. 6. 7. Identify vulnerabilities in authentic, trustworthy, reliable records Litigation Hold Procedure E-mail management Naming conventions and file folder structures (photos) Outlaw “Black Markets” (saving e-mail to archives, C: drives, send to gmail accounts, etc.) Audit trails (who accessed what, when) Social Media (Facebook, Twitter, etc.) Broadcast e-mails are not enough Acknowledgement required In-person / phone call confirmation 21 ©2010 Gladwell Governmental Services, Inc. ©2010 Gladwell Governmental Services, Inc. 22 Best Practices - Prepare 4. Best Practices - During Trigger: Reasonably Anticipate Duty to Preserve anything relevant: Knowable, reasonably anticipated Records Retention Policies & Procedures are important Bring in Expert Assistance Penalties Severe Pay for forensic / inaccessible ESI Jury Instruction: Assume they concealed potentially damaging evidence 23 ©2010 Gladwell Governmental Services, Inc. Implementation: “Free the Files” Days • • • • Always Start with Training Clear Direction and Forms Supervision Checks & Balances 5. Training, Training, Training New Employee Orientation Annual or Biennial City-wide Training Individual “Hands On” for Some ©2010 Gladwell Governmental Services, Inc. - all rights reserved. Do not duplicate or distribute without prior written permission 24 4
Slide 5: AIIM – 5/13/2010 Best Practices - During 2. Best Practices - During Collect Relevant ESI Have Attorney narrow the scope Search words that make sense to the case Create a Map of Data Physical possession is not the determining factor California State University v. Superior Court (2001) 90 Cal.App.4th 810, Cal.Rptr.2d 870 Place data in a separate folder ID all data sources: PDAs, USB keys, photos, voice mail, security systems, website pages, home computers, SaaS ASP Services (Recruitment, Video Streaming,) etc. Relevant? Privileged? Carefully review and eliminate exact duplicates Searchable Format ©2010 Gladwell Governmental Services, Inc. ©2010 Gladwell Governmental Services, Inc. 26 Questions & Answers ©2010 Gladwell Governmental Services, Inc. 27 5