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Proactive Archiving Strategy For Aiim Minn 



 

 
 
Tags:  compliance  ediscovery  archiving  mimosa  aiim 
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Published:  December 11, 2009
 
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Slide 1: Pre-emptive Pre emptive eDiscovery Strategies for Small, Medium and Large entities Bill Tolson Director of Legal Solutions Marketing f S Mimosa Systems Inc. Copyright © 2009 Mimosa Systems, Inc. - Confidential
Slide 2: “Receiving a discovery request is like being pulled over for a broken headlight and having f ll b d h i a full body cavity search done.” it hd ” Unknown CEO Uk
Slide 3: Discovery doesn’t have to be traumatic or costly… if you proactively plan for it
Slide 4: Most Frequently Requested Record Types in Discovery y E-mail ( d attachments ) E il (and tt h t General office productivity documents Databas e records Invoices and other customer records Financial statements Telephone call recordings and other audio files Digital images Ins tant mes sages Video files Other 0% 80% 60% 49% 41% 36% 29% 25% 21% 16% 5% 10% 20% 30% 40% 50% 60% 70% 80% 90% ESG Research Discovery Survey Nov 2007 4
Slide 5: Average Age of Data Requested During Discovery ( y (General Counsel Survey) y) 60% 50% 48% 40% 30% 20% 15% 15% 15% 10% 4% 4% 0% Most data is less than 6 months old Most data is Most data is Most data is between 6 and between 12 between 24 12 months old and 24 months and 36 months old old Most data is more than 36 months old Don't know / refused to answer ESG Research Discovery Survey Nov 2007 5
Slide 6: ESI eDiscovery Trends: More Costly, More Complicated y, p The legal problem is immense for large, midsize and small companies: Among midsize companies, 98% had between 1 and 20 $20-million lawsuits; the other 2% had between 21 and 50. 58% of companies had between 1 and 50 new lawsuits in 2007. Almost 40% of the largest companies surveyed spent $5 million or more annually on litigation. * Source: 2007 Fulbright & Jaworski Litigation Trends Survey A growing body of case law and judgments affects IT: Victor Stanley Inc v Creative Pipe Inc 2008 WL 2221841 (D Md May 29 Stanley, Inc. v. Pipe, Inc., (D.Md. 29, 2008) —risks of keyword search Hopson v. Mayor of Baltimore, 232 FRD 228 (D. Md. 2005) —parties ordered to create a reasonable discovery plan
Slide 7: eDiscovery is a Problem The American Bar Association Digital Evidence Project and National Law Journal Report: Over 30 Billion emails are sent daily Over 90% of ALL information is now electronic Typical Fortune 500 company has 125 on going cases with at least 75% on-going requiring electronic discovery 62% of companies surveyed doubt they can show their electronic records are accurate and reliable
Slide 8: The Federal Rules of Civil Procedure
Slide 9: The New FRCP Amendments.. Explicitly makes “electronically stored information” a category of discoverable d t if ti ” t f di bl data Mandates early meet-and-confer sessions Provides “safe harbor” in the event of “good faith” destruction of discoverable data Litigation Hold expectations
Slide 10: So, What is Discoverable and Subject to Litigation Holds? g Email Attachments Files Anything else? Calendars Contacts Task Lists Specific Points in Time Conversation Threads File Attributes Metadata Backup Tapes
Slide 11: Major Risks Associated with ESI in Litigation g Stopping system managed deletions Stopping deletion of potentially responsive Electronically Stored Information (ESI) by employees l Applying a Litigation Hold Inability to effectively filter ESI to determine responsiveness, or privilege Not turning over all responsive ESI Turning over too much ESI
Slide 12: Major Costs Associated with ESI in Litigation Searching for responsive ESI in the corporate infrastructure if t t File Servers On-line On line Storage Systems Failover Locations Email Servers Instant Messaging Servers Backup Tapes Network Share Drives
Slide 13: Major Costs Associated with ESI in Litigation Searching for responsive ESI at the custodian level l l Custodian Workstations Custodian Laptops CD/DVDs USB Thumb Drives External Hard disks PDAs Cell Phones iPods Digital Cameras Personal Email Accounts Home PCs
Slide 14: Challenges for eDiscovery Managing Legal Risk Litigation Hold - Spoliation Turning over too much data – Privilege Turning over too little data – Adverse Inference Managing Legal Cost Stopping deletions is costly to ensure Slow eDiscovery response results in severe penalties and fines Disruptive data capture decreases employee productivity Restoration of backup tapes for searching is extremely costly
Slide 15: New eDiscovery Case Law Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL 333987 (D Minn Feb 1 2007) (D. Minn. Feb. 1, Backup tapes are not inaccessible: “Defendants offer no proof, aside from conclusory statements, about the cost to obtain documents from electronic archives. So this concern cannot shield the defendants from discovery here.” Columbia Pictures Industries v. Bunnell, CV 06-1093 FMC (JCx), U.S. District Court for the Central District of California (May 2007) (y ) Server transaction logs are discoverable: An issue addressed by the judge was whether requiring the defendants to preserve and produce the server log data was tantamount to forcing them to create new data, since the defendants' systems had not created these types of logs before. t t d th t fl bf
Slide 16: New eDiscovery Case Law Goodbys Creek, LLC v. Arch Ins.., 2008 WL 4279693 (M.D. Fla. Sept. 15, 2008) …in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. Metrokane, Inc. v. Built NY, Inc., 2008 WL 4185865 (S.D.N.Y. Sept. 3, 2008) Adverse Inference and Other Sanctions Warranted for Plaintiff's Failure to Produce Damaging Emails that were Eventually Produced by Third Party Magistrate Judge Michael H. Dolinger rejected Metrokane’s procedural defense, and concluded that BNY sufficiently demonstrated discovery misconduct by Metrokane and resulting prejudice. Accordingly, the court granted a variety of remedies including an adverse inference instruction remedies, instruction.
Slide 17: New eDiscovery Case Law White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 WL 3271924 (D. Kan. Aug. 7, 2008) The Court finds that Defendants failed to produce the emails and attachments in either the form in which they are ordinarily maintained, or in a "reasonably usable form," as required by Rule 34(b)(2)(E)(ii). Defendants' conversion of the emails and attachments to PDF documents and production of the PDF documents in paper format does not comply with the option to produce them in a reasonable usable form. Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008) Supermarket's Failure to Retain Video Surveillance Footage of Periods Preceding and Following Slip and Fall Incident "Shocks the Conscience of the Shocks Court" and Warrants Adverse Inference Instruction
Slide 18: The Cost of Review "A recent study that appeared in Digital Discovery & eEvidence showed that for a smaller case with 30 that, gigabytes of data, manual review could cost $3.3 million. The study described how a more advanced electronic approach could reduce that cost by 89%, to less than $360,000. See 'Document Analytics Allow Attorneys to be Attorneys,' y y, (Chris Paskach and Vince Walden, DDEE, August 2005, page 10.)"
Slide 19: Challenges for eDiscovery – Manual Process Manual Discovery is risky as well as time consuming and di i d disruptive - costly ti tl Responsive records can be anywhere Impossible to place a litigation hold quickly and completely How can you be sure all targeted employees have y g py stopped deletions of potentially responsive content? Did I find everything? 19
Slide 20: Challenges for eDiscovery – Manual Process Email Boxes Exchange Dumpster Backup Tapes CDs/DVDs Email Server PDAs Custodian Workstations ` eDiscovery Order File Server Thumb Drives MP3s/iPods Share Drives Digital Cameras
Slide 21: Challenges for eDiscovery – Reactive Solutions (Crawling) ( g) Reactive Discovery is risky, time consuming and disruptive t th i f t t di ti to the infrastructure Again, responsive records can be anywhere Impossible to place a litigation hold quickly and completely Reactive crawls and hard disk imaging is disruptive gg p to custodian productivity Did I find everything? 21
Slide 22: Challenges for eDiscovery - Archiving First generation archiving solutions don’t address the question – What’s discoverable? What s Incomplete capture of historical data If you don’t capture everything then your don t everything, litigation hold will be incomplete Cumbersome and complicated eDiscovery Doesn t Doesn’t capture all discoverable data 22
Slide 23: Proactive Archiving of all Discoverable Data Advantages of proactive archiving for discovery over manual di l discovery or reactive crawling ti li Ability to perform early case assessment – data is always at hand Place litigation holds immediately Disposition of records is automatically managed p y g Data is single-instanced so only one copy exists Archive provides a data inventory for “meet and confer” session Archive provides a “Single Point of Discovery” for email and file system data
Slide 24: Disadvantages Archive storage requirements But… How much of your tier one storage resources is being consumed with PSTs and duplicates of office files? What's your real cost of manual or reactive y discovery?
Slide 25: The Biggest Argument Against Archiving from Corporate Legal… p g “The more data we keep the bigger the chance it will be used against us in litigation” Not necessarily the case…
Slide 26: Employees Keep Stuff No Matter Employees will keep data for all kinds of reasons Employees will not adhere to retention policies on d t they squirrel away data th il With no centralized management, thousands of copies can exist for long periods of time exist…for All this does is d i up you di thi d i drive discovery cost t
Slide 27: Blanket Retention Policies – Unsafe Harbors “We save everything until our mail server gets full – then we delete everything and start anew.” anew. “We save everything for 30 (60 or 90) days and we’ve never h d a problem.” d d ’ had bl ” “We gave up trying to figure out We individual retention rules and now keep everything for 10 (15 or 20) years.” (202) 342-2550 bsavarino@cohenmohr.com
Slide 28: Discovery Strategies for Small Entities Control your organizations data – all of it Know your infrastructure Know what data is created and deleted Be able to lock it down quickly Judges don’t care what you can afford Get outside legal advice – legal advice is an insurance policy If a lawyer told you it was policy. alright, then you are better off Get that advice in writing g
Slide 29: Discovery Strategies for Small Entities Create policies and procedures Create a litigation hold process Create a eDiscovery process Create a ESI retention policy Test all of them Train employees on all policies Audit employee compliance And document everything y g
Slide 30: Discovery Strategies for Medium and Large Entities Control your organizations data – all of it This includes video surveillance Entrance/exit card access Put a centrally controlled ESI archive in place If multinational, be aware of international data retention precautions p Get internal or external legal advice g
Slide 31: Discovery Strategies for Medium and Large Entities Inventory your data infrastructure What applications are used that create data Where is the data stored How many copies are stored Do any of the systems have an automatic disposition process Do you have systems where the employee has the ability to keep a copy locally Create a data map and keep it updated Understand you regulatory retention requirements
Slide 32: Discovery Strategies for Medium and Large Entities Create records retention policies. Policy(s) should b i place and i l h ld be in l d implemented well i td ll in advance of any potential or actual litigation or investigation Inbox 3 month retention Project 1 2 year retention Project 2 3 year retention Project 3 1 year retention after deletion Sent Items 6 month retention
Slide 33: Discovery Strategies for Medium and Large Entities Legally refresh the policies on a regular basis Prohibit the creation of employee PSTs Disable workstation CD/DVD drives and USB connections Hold regular update meetings for corporate legal and IT l ld Train all employees on the policies Document everything
Slide 34: Discovery Strategies for Medium and Large Entities Prepare your employees for questioning from the th th other side… id Interrogatories are written and sometime in-person questions posed by the opposing counsel that are designed to discover key facts about an opposing party's case. For IT, this usually will include questions relating to the corporate infrastructure. infrastructure
Slide 35: Summary Proactively archiving ESI including email and office files reduces di ffi fil d discovery costs and risks t dik Applying policies to archived data insures data doesn’t stick around forever Preparing for discovery ahead of time puts you in better i a b tt position when liti ti starts iti h litigation t t
Slide 36: Questions?
Slide 37: NearPoint Key Differentiators Unified backend for all user generated content types Centralized control of retention policies and litigation holds Consolidated view for eDiscovery Granular policy definitions Advanced seamless and shortcut style stubbing technology gy Flexible file recovery mechanisms for administrators Advanced reporting, monitoring and alerting functionality 37
Slide 38: Where NearPoint Fits in the eDiscovery Ecosystem y NearPoint eDiscovery Option (eDO) – search, review, tag and set legal hold on potentially g y responsive content NearPoint Archive for File and Email Systems Preservation Information Management Identification Collection Processing Review Production Presentation •C t Capture • Archive • Retain • Dispose • Monitor Analysis Electronic Discovery Reference Model www.edrm.net 38 NearPoint Custodian Collector Option (CCO) – helps with reactive collection of historical file and desktop content 38
Slide 39: eDiscovery with Mimosa NearPoint eDiscovery Request Email Server Mimosa N P i t A hi Mi NearPoint Archive captures all discoverable content in real near-time Mimosa NearPoint Archive Server Single P i t f Di Si l Point of Discovery Using the eDiscovery Option, the legal Option staff can search for, review, tag and place litigation holds as well as export responsive records for external legal counsel, plaintiff’s attorney or importation into case management tool. The IT department is not required in any steps File Server Single Instance Archive Storage and Index

   
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