13 in '13: Top Ediscovery Issues
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Transcript of 13 in '13: Top Ediscovery Issues
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Kroll Ontrack: By the Numbers
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Industry’s Leading Technology
Assisted Review Functionality
Most Powerful Data
Processing Platform
Expertise Stemming from
Ediscovery’s Inception
Largest & Most Secure
Data Center
Broad Global Reach and
Language Experience
Deep Loyalty Among a
Premier Client List
1+ TB Processed
Daily
7k File Types
20 PB of Active Data
4 Data Centers on Three
Continents
200+ Fortune 500 Clients
90+ AmLaw 100 Clients
140+ Case Managers in
Every Major
Geography
17+ Years of Managing
Ediscovery Matters
of All Sizes
30 Locations
1.5m Documents Reviewed by
a Single Reviewer
14 Days
98% Projects Involving
Multilingual Data
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The ideal ediscovery horizon…
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Big Data
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Cloud Explosion
Big Data
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Cloud Explosion
Big Data
Mobile & Social Downpour
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Cloud Explosion
Big Data
Cost Flood
Mobile & Social Downpour
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Cloud Explosion
Big Data
Mobile & Social Downpour
Inefficient Solutions
Cost Flood
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Case by Case Project Management
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Case by Case Project Management
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To transform ediscovery…
From Art
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To transform ediscovery…
To Science
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Best Practices
Policies
…and Technology
with…
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Data Management Policy Tips
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#1: Information Management
Corporations balance legal and regulatory obligations with business efficiency
» All organizations must find a way to retain required records, and
also appropriately dispose of non-essential data to free storage space and prevent risks associated with over-retention
Keep tabs on data with a comprehensive list of potential data sources, including:
E-mail accounts
Computers, iPods, flash drives
Phone calls, voicemail, Skype
Databases, cloud services
Network servers, structured data systems
Social media sites
Text messages, instant messages
Document management tools
Business and Personal:
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#2: Preservation and Litigation Holds
The bottom line: litigation holds remain valuable, despite the changing landscape
» Large organizations are able to track a multitude of custodians storing data on complex IT systems
» Even if rules are updated, implementing litigation holds are a factor in determining whether you satisfied your duty
Traditional Preservation Rule: failure to implement a litigation hold constitutes negligence per se
However, recent trends suggest a departure:
» Chin v. Port Auth. – depending on the facts, a party may fulfill preservation obligations if it acts reasonably and in good faith to preserve documents
» Proposals to amend the FRCP recommend a factor-based approach to determine if sanctions for failure to preserve are appropriate (willfulness, reasonableness, substantial prejudice)
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#3: Bring Your Own Device (BYOD)
As BYOD (and BYOC) grows in popularity, attempts to ignore or restrict it will likely do more harm than good
» According to Gartner, half of employers will require employees to supply their own device for work purposes by 2017
Although there is no “one size fits all” approach to BYOD, a sound policy should:
» Harmonize with existing information governance policies
» Address security issues presented by increased number of devices connecting to the corporate network and leaving the workplace
» Address device management issues to ensure that devices with comingled personal and private data retain the right information
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#4: Social Media
Develop a social media policy that clearly identifies what is and is not acceptable
Possible elements to include:
» Clear guidance and on proper use: avoid unrealistic mandates-employees will use social media whether or not you allow it!
» Consequences of non-compliance: clearly identify what can happen if an employee fails to follow the policy and identify specific corrective actions, particularly if they could involve litigation
» Specifics on what employees can and cannot divulge: set guidelines for disclosures—should individuals identify themselves as employees, include disclaimers on comments?
Technology, law and practices are constantly changing—stay abreast and update policies as needed
The cloud can serve as a simple alternative to costly on-premise software programs, which require up-front investments (hardware, licenses, installation and IT training)
Mitigating Risks in the Cloud:
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#5: The Cloud
Risk Mitigation Tactic
Location Keep data within specific data centers or countries
Accessibility Understand the process for getting data out of the cloud; ensure confidentiality is
protected from other cloud tenants
Preservation Clarify service agreements for how litigation holds will be implemented in the cloud
Security Ask who is going to have access to the data and what security measures will be
provided
Integrity Inquire about the company's experience, reputation, financial stability and disaster
recovery plans
6. CLO/CIO Relationship
7. International Ediscovery
8. Sanctions
9. Proportionality and Cost Control
10. Proposed Amendments to FRCP
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Litigation Response Best Practices Tips
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#6: CLO/CIO Relationship
» Frequent, in-depth policy conversations to identify underlying legal/IT issues and form solutions
» Update the organization’s data map
» Establish clear guidelines about litigation holds
» Discuss pending and potential ediscovery projects
» Communicate about data custodians, locations, data retention policies, and litigation hold procedures
“A meeting a month keeps the sanctions away!”
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#7: International Ediscovery
Asia • Ediscovery rules developing in some
countries (e.g., Singapore, Japan,
South Korea)
• Greatest impact: U.S.-based litigation
needing to collect and produce data
originating in Asia
Australia • Established ediscovery rules (Practice
Note CM6)
• Standardized pre-discovery and pre-
trial checklists are frequently used
Europe • Limited ediscovery because of
heightened privacy protections
and civil law system
UK • Established
ediscovery
rules (CPR 31,
Practice Dir.
31B), but
obligations less
broad than US
Canada • Provincial
ediscovery rules
(Ontario Civ. Pro.
29.1.03)
• “The Sedona
Canada
Principles”
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#8: Spoliation and Sanctions
Courts today expect more sophisticated and tech-savvy litigants than ever before
» In 2012, ediscovery opinions discussed sanctions more than any other topic, but opinions also scrutinized procedural issues, such as search protocols, cooperation, production, and privilege issues
Most of sanction orders now stem from counsel trying to keep pace with big data and evolving technologies
» Sanction orders in 2012 were cautionary tales: Counsel must appropriately understand their client’s data before attempting to preserve or collect it!
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#9: Proportionality and Cost Control
Efforts to “tame the beast” of rising ediscovery costs in the spirit of proportionality are the focus of state rule changes
Most recently, Minnesota’s Amended Civil Procedure rules, which go into effect on July 1, 2013, alter the scope of discovery:
» It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues. The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation. (New Minn. R. Civ. P. 1)
Rules aim to tighten the reins by emphasizing early preparation and cooperation amongst parties
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#10: FRCP Amendments
Update: Amendment package approved for public comment period to occur later in 2013
If passed as current proposal, amendments would include:
» Cooperation: Rule 1
» Proportionality:
– Scope: Rule 26(b)(1)
– Limits: Rules 30, 31, 33, 34 & 36
» Discovery Costs: Rule 26(c)
» Preservation Planning: Rules 16 & 26(f)
Finally, the Package also contains a replacement Rule 37(e) to address the issues of Spoliation and Sanctions
11. Early Data Assessment
12. Technology Assisted Review
13. Portfolio Management
Ediscovery Technology Tips
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#11: Early Data Assessment (EDA)
The ediscovery process:
EDA is CRITICAL. It aids
in fact-finding and
narrows the data scope: • Triages data into critical and
non-critical groupings
• Identifies and reduces number
of key players
• Tests key search terms
• Identifies critical case
arguments
• Categorizes documents as
efficiently as possible for
production
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#12: Technology Assisted Review
Document review is routinely the most expensive part
of the discovery process. Saving time and reducing
costs will result in satisfied clients.
Traditional/Linear
Paper-Based
Document
Review
Online Review
Technology
Assisted
Review
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Data Produce
Collect
Review
Process
Continuous
Parallel
Interdependent
Iterative
#13: Portfolio Management
Best addressed with an
integrated team and
technology
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Ediscovery involves more than technology—instead
it’s a combination of:
• methodologies
• that involve people, processes and
• the right technologies.
Parting Thoughts….