Allvision Computing By Legal For Legal 2007 Litigation Readiness Andrew Haslam.
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Transcript of Allvision Computing By Legal For Legal 2007 Litigation Readiness Andrew Haslam.
Allvision ComputingAllvision Computing
By Legal For Legal 2007By Legal For Legal 2007Litigation Readiness Litigation Readiness
Andrew HaslamAndrew Haslam
Allvision ComputingAllvision ComputingPage 2
AgendaAgenda What is Litigation Readiness and why is it so What is Litigation Readiness and why is it so
important now?important now? What are global corporations doing today in What are global corporations doing today in
response?response? How has this environment impacted US law How has this environment impacted US law
firms?firms? How has this environment impacted UK firms How has this environment impacted UK firms
to date?to date? How might UK firms be impacted in the future?How might UK firms be impacted in the future?
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1.1. Exponential VolumeExponential Volume
2.2. MetadataMetadata
3.3. UnknownsUnknowns
Cost and risk in determining, “Have we produced what we need to?”
Challenges of Electronic Challenges of Electronic DataData
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Drivers in electronic Drivers in electronic discoverydiscovery
RulesRules New laws, i.e. changes to the CPR, FRCP New laws, i.e. changes to the CPR, FRCP
ComplexityComplexity Increased complexity and dependencyIncreased complexity and dependency Increased use of computer systemsIncreased use of computer systems Increased digital-only existence of dataIncreased digital-only existence of data
VolumesVolumes Bigger storage volumesBigger storage volumes
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Company said they located and searched all relevant backup Company said they located and searched all relevant backup tapes, but had not.tapes, but had not. $1.4 billion in damages, adverse inference instruction, default $1.4 billion in damages, adverse inference instruction, default
judgmentjudgmentColeman v. Morgan StanleyColeman v. Morgan Stanley
Employees deleted relevant e-mail, IT continued to rotate and Employees deleted relevant e-mail, IT continued to rotate and overwrite backup tapes.overwrite backup tapes. $29 million damages, adverse inference (in ordinary employment $29 million damages, adverse inference (in ordinary employment
case)case)Zubulake v. UBS WarburgZubulake v. UBS Warburg
Executives did not print e-mail subject to litigation hold, IT Executives did not print e-mail subject to litigation hold, IT continued 60-day purgecontinued 60-day purge $2.75 million fine, executives precluded from testifying$2.75 million fine, executives precluded from testifying
US v. Philip Morris USA US v. Philip Morris USA
Trends in US CourtsTrends in US Courts
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What is Litigation What is Litigation ReadinessReadiness
““A better fence at the top of the cliff”A better fence at the top of the cliff” Sound RIM as a good efficient Sound RIM as a good efficient
business practicebusiness practice Becoming essential for certain firms Becoming essential for certain firms
i.e. SOX, FSA, Basel 2 and MiFIDi.e. SOX, FSA, Basel 2 and MiFID May be part of due diligence in a May be part of due diligence in a
M&A situationM&A situation
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Why Litigation Why Litigation Readiness?Readiness?
Regulatory and Compliance driversRegulatory and Compliance drivers Litigation issuesLitigation issues Data Protection problemsData Protection problems General information management General information management
“Best Practice"“Best Practice"
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1.1. Profile your systems and dataProfile your systems and data
2.2. Reduce the pool of backup/archival mediaReduce the pool of backup/archival media
3.3. Extend records/retention policy to ESIExtend records/retention policy to ESI
4.4. Establish “Preserve Now” team and Establish “Preserve Now” team and processprocess
5.5. Streamline litigation hold processStreamline litigation hold process
6.6. Manage outside counsel and vendorsManage outside counsel and vendors
7.7. Litigation Process “Outsourcing”Litigation Process “Outsourcing”
Changing the Corporate ArchitectureChanging the Corporate Architecture
Corporate StrategiesCorporate Strategies
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Be first to put a reasonable plan in place, to Be first to put a reasonable plan in place, to your advantage, then cost shiftyour advantage, then cost shift
Issue litigation hold quickly, narrowly, and Issue litigation hold quickly, narrowly, and oftenoften
Proactively involve IT at a level that gets Proactively involve IT at a level that gets results, pay attention to spoliation via results, pay attention to spoliation via maintenance processes/ programsmaintenance processes/ programs
Preserve quickly (‘anticipation’ of lawsuit), Preserve quickly (‘anticipation’ of lawsuit), on a rolling basison a rolling basis
Preserve metadataPreserve metadata Collect accessible data, broadly, cull laterCollect accessible data, broadly, cull later Sample to reduce population of documents Sample to reduce population of documents
sent to reviewsent to review ‘‘Conceptual’ document review toolsConceptual’ document review tools
Emerging “best Emerging “best practices”practices”
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Reactive/technologyProactive
Original Volume (and Cost)
Sco
pe
Pre
serv
e
Gath
er
Pro
cess
Host
Revie
w
Pre
sent
Litigation
Readiness
Efficiencies in e-disclosureEfficiencies in e-disclosure
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1.1. Understand the details of client IT systemsUnderstand the details of client IT systems Think globalThink global Scope of data – locations, volume, timeframe, Scope of data – locations, volume, timeframe,
retentionretention Preservation options, and cost to access, cull and Preservation options, and cost to access, cull and
produceproduce2.2. Preserve data/metadata upon ‘anticipation’Preserve data/metadata upon ‘anticipation’
Employee litigation holds should be robust, but Employee litigation holds should be robust, but may be insufficient.may be insufficient.
IT should proactively preserve from a system IT should proactively preserve from a system standpointstandpoint
Metadata, backup tapes, what is reasonable?Metadata, backup tapes, what is reasonable?3.3. Develop ‘CMC’ strategy for negotiatingDevelop ‘CMC’ strategy for negotiating
Defensibility of preservationDefensibility of preservation Accessibility/inaccessibility for collectionAccessibility/inaccessibility for collection Timeframe/format of productionTimeframe/format of production
The ChallengesThe Challenges
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How has this environment impacted How has this environment impacted UK firms to date?UK firms to date?
How might UK firms be impacted in How might UK firms be impacted in the future?the future?
So What?So What?
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Law firms and EDDLaw firms and EDD Respond to client requestsRespond to client requests
Client is under investigation or subject to litigationClient is under investigation or subject to litigation Client requests back historyClient requests back history Client requests destruction or return of materialsClient requests destruction or return of materials
Respond to request from regulatory body or Respond to request from regulatory body or governmentgovernment
Respond to a Data Access Information RequestRespond to a Data Access Information Request Comply with a protective order issued by a court Comply with a protective order issued by a court
prohibiting sharing of information within the firmprohibiting sharing of information within the firm Preparing to defend itself against action brought Preparing to defend itself against action brought
by client or employeeby client or employee Reasonable expectation of litigation (US)Reasonable expectation of litigation (US)
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What might Litigation What might Litigation Readiness involve?Readiness involve?
Records Management policy, procedures Records Management policy, procedures and documentationand documentation
Demonstrable proof that IT information Demonstrable proof that IT information management policies and procedures management policies and procedures align with and enforce RM policyalign with and enforce RM policy
Defensible litigation hold processes, Defensible litigation hold processes, procedures and documentationprocedures and documentation
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What might Litigation What might Litigation Readiness involve?Readiness involve?
Defensible preservation processes, Defensible preservation processes, procedures and documentation (paper and procedures and documentation (paper and electronic information)electronic information)
Up-to-date inventory of technology Up-to-date inventory of technology systemssystems
Up-to-date data mapUp-to-date data map Methods to collect and produce required Methods to collect and produce required
materialsmaterials
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What Challenges Might a What Challenges Might a Firm Face?Firm Face?
Getting management support in advanceGetting management support in advance Firm’s believe they are immune until an event Firm’s believe they are immune until an event
occursoccurs Records management policies and procedures Records management policies and procedures
are notoriously hard for firms to embraceare notoriously hard for firms to embrace
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What Challenges Might a What Challenges Might a Firm Face?Firm Face?
Balancing interests of competing Balancing interests of competing stakeholdersstakeholders Lawyers want to keep everything “forever”Lawyers want to keep everything “forever” Firm as a business needs to routinely dispose of Firm as a business needs to routinely dispose of
information in accordance with RM policy in information in accordance with RM policy in order to be prepared to defend itselforder to be prepared to defend itself
Client wants firm to maintain information in Client wants firm to maintain information in accordance with the client’s interestsaccordance with the client’s interests
Establishing effective communications Establishing effective communications between IT and legal between IT and legal
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What Challenges Might a What Challenges Might a Firm Face?Firm Face?
Doing the workDoing the work Most IT systems and procedures are designed for Most IT systems and procedures are designed for
business continuity and recovery, not disclosure business continuity and recovery, not disclosure activitiesactivities
Data privacy rules and regulations can Data privacy rules and regulations can complicate work substantiallycomplicate work substantially
People mix personal and business information and you People mix personal and business information and you might have to uncouple themmight have to uncouple them
Work efforts to preserve, collect and product can Work efforts to preserve, collect and product can be labour intensive for IT if not planned for in be labour intensive for IT if not planned for in advanceadvance
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What Challenges Might a What Challenges Might a Firm Face?Firm Face?
Covering the costs—which can be Covering the costs—which can be enormousenormous Identifying and capturing costs (hard and soft)Identifying and capturing costs (hard and soft) Recovering costs from clients Recovering costs from clients Absorbing unrecoverable costs in the firm’s Absorbing unrecoverable costs in the firm’s
budgetbudget
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What actions should be on What actions should be on your “Strategic To Do’s” your “Strategic To Do’s”
list?list? Create a policy dialogue with firm’s Create a policy dialogue with firm’s
leadershipleadership Understand potential risks and costs of doing Understand potential risks and costs of doing
nothingnothing Present plan for E-Disclosure preparedness and Present plan for E-Disclosure preparedness and
seek supportseek support Make sure IT’s operational procedures fit Make sure IT’s operational procedures fit
with the firm’s business goals for e-with the firm’s business goals for e-Disclosure preparednessDisclosure preparedness
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What actions should be on What actions should be on your “Strategic To Do’s” your “Strategic To Do’s”
list?list? Keep pace with evolving standards and Keep pace with evolving standards and
changes in environmentchanges in environment ““You will be measured today by tomorrow’s You will be measured today by tomorrow’s
standards”standards” Enforce records retention/destruction Enforce records retention/destruction
policy on electronic informationpolicy on electronic information Implement a comprehensive matter Implement a comprehensive matter
centric computing environment, if possiblecentric computing environment, if possible
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What items should be on What items should be on your “Tactical To Do’s” list?your “Tactical To Do’s” list?
Establish a formal litigation hold processEstablish a formal litigation hold process Understand the high risks of e-mail and Understand the high risks of e-mail and
manage aggressivelymanage aggressively Set shortest possible retention period for un-Set shortest possible retention period for un-
filed e-mails and enforce automated deletionfiled e-mails and enforce automated deletion Ensure backup procedures are aligned with Ensure backup procedures are aligned with
retention rulesretention rules Understand and mitigate risks of users creating Understand and mitigate risks of users creating
personal e-mail archive filespersonal e-mail archive files
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What items should be on What items should be on your “Tactical To Do’s” list?your “Tactical To Do’s” list?
Maintain historical and current inventories Maintain historical and current inventories of data, media, and user access rightsof data, media, and user access rights Establish operational policies and procedures Establish operational policies and procedures
to keep them currentto keep them current Distinguish between reasonably accessible and Distinguish between reasonably accessible and
inaccessible locationsinaccessible locations Maintain historical and current inventories Maintain historical and current inventories
of technology infrastructureof technology infrastructure
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Questions?Questions?