5 e Discovery Risks to Avoid in Board Communications

Five eDiscovery Risks to Avoid in Board Communications

Kelly Twigger, Esq.Passageways PowWOW

May 14, 2015Indianapolis, IN

Kelly TwiggerAdvises clients on all aspects of preparing for and conducting eDiscovery and IGFluent in legal, business and IT Co-author of Electronic Discovery and Records and Information Management Guide (updated annually); creator of eDiscovery Assistant™Blogger at www.esiattorneys.com/blogKentucky basketball and Packers football fan

“The most valuable commodity I know of is information.”

— Gordon Gecko

“Information is a source of learning. But unless it is organized, processed, and

available to the right people in a format for decision making, it is a burden, not a

benefit.”

— William Pollard

“Information Technology and Business are becoming inextricably interwoven. I don’t think anyone can talk meaningfully about

one without talking about the other.”

— Bill Gates

What is Electronic Discovery?

eDiscovery is the identification, collection, review and production of

electronically stored information, or ESI.

A party has a duty to preserve information that may be responsive when it knows about or reasonably

anticipates litigation.

— Zubulake v. Warburg, 220 F.R.D. 212 (S.D.N.Y.

2003)

A long time ago, in a galaxy far, far away . . .

ESI Challenges

Volume of data (in GB)

Cost

✓ Volume is directly tied to cost

✓ 196.3 billion emails sent daily

✓ $1.4 million to handle 1 TB data

Where do eDiscovery Rules Come into Play?

Litigation Third party subpoenas Regulatory Responses Government

investigations DOJ Second requests

eDiscovery of Board Communications

✓ When decision by board is at issue in litigation

✓ Shareholder derivative actions✓ Breach of fiduciary duty ✓ Pension fund cases

Risk #1Failure to Plan for

eDiscovery

Plan for eDiscovery

Planning done with specific organizational risks and goals in

mind

CreateTeam

AnalyzeRisks

DevelopProcess

Implement and Audit

Records

Relevant

ESI ESI

Information

Goal of eDiscoveryLegal

obligations+

Legal Strategy

=eDiscovery

Goal

Create Team

InformationGovernanc

eLegal IT Business

To successfully address risks, an organization must change the way the business thinks. No more silos, regions or business units. Policies must govern and be enforced. Goals must be determined as business

objectives.

Analyze Risks

Likelihood of litigation Regulatory issues/concerns New/proposed legislation Past experience Potential exposure Impact on shareholders/members

Develop Internal Process

Records and Information Management Legal hold policy and protocol Process for managing eDiscovery Understanding sources of ESI at play Selecting tools for handling data Outside eDiscovery counsel

Consequences of Failure to Plan for eDiscovery

Exponentially higher discovery costsBad publicityPotential regulatory violationsExclusion of witnesses, default judgment, sanctions in litigation

Risk #2Allowing Board

Members to Use An Email Address

Outside the Company

Risk #2Poll Question:

What email address do your directors use to

communicate regarding company issues?

Risk #2

A. Their own company email address (i.e. where they are employed)

B. A personal email addressC. A designated email address for the

company on which the board member sits

Epic Fail

of all Boards of Directors still use email to send

documents and information to Board

Members

The evolving role of the global board

— Thomsen Reuters, 2014

43%

Risk #3Not Identifying ALL sources of ESI that

may be discoverable

Risk #3Poll Question:

What is your organization’s policy regarding the

annotations made by directors in the portal?

Risk #3

A. Annotations remain on the individual director’s portal — the company takes no action with them

B. Annotations are deleted by the administrator within a fixed time after the meeting is concluded

C. My organization has no policy or procedure for how annotations are treated on the portal

Sources of ESI

Word docs

agendaspowerpoints

photographsspreadsheets

Databases VideoAudio files

Text messages

Annotations in board portal

GPS data

email

social media

instant messages

Social Media

Social Media

OOPS.

Risk #4Not Understanding

How data is Captured and

Stored

Deleted, but not Gone

Images captured using MP+ from Access Data

Deleted, but not Gone

Images captured using MP+ from Access Data

Deleted, but not Gone

Images captured using MP+ from Access Data

Risk #5Failure to Educate Board Members on

the Risks of ESI

Training Do’s • Conduct in-person with board members at regular meeting as

part of agenda• Use impartial presenter from outside organization who has

met with team• Consider attorney-client privilege and using counsel to

conduct training to shield contents of training from being discoverable

• Have case studies and materials to support policies and positions regarding use of ESI by board members

• Be willing to discuss positions of board members relative to inconvenience of issues vs. risk management for the organization (think Hillary Clinton)

• Bring Your Own Device (BYOD)

Training Topics • Governing regs, statutes, FRCP etc. on the requirements to

preserve records and information• Basics of electronic discovery and the risks, including

when duty to preserve arises• Bring Your Own Device (BYOD)• Use of personal devices and computers for company

business• Email as a communication tool • Impact and use of social media• Technical/forensic components to provide context for

understanding the issues

Your Homework✓ Gather the right people to assess the risks of ESI for your

Board and organization ✓ Put together a game plan for planning for eDiscovery in

conjunction with your information governance policies and strategy

✓ Review existing methods for creating, storing and transmitting board materials and evaluate against risks

✓ Put in place protocols for handling eDiscovery, including identifying counsel, tools to assist with the process, identify sources of ESI, etc.

✓ Provide training for board members on ESI related risks, and put policies in place to govern communications in any form

eDiscovery Assistant™

Web version to be

released this

summer

www.ediscoveryassistant.com

Questions??

Thank You!

Contact Information:ktwigger@esiattorneys.com

720.370.0435LinkedIn: Kelly TwiggerTwitter @kellytwigger

Blog esiattorneys.com/blog