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APPA Business & Financial Conference

Information Technology TractSession 30

Caught in the Web: Challenges With e-Discovery

Vic Hatridge – CIO

Nashville Electric Service

vhatridge@nespower.com

(615) 747-3735

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Two Case Studies from Nashville Electric Service

Utility Background

Disclaimer

Case Study 1 & 2– How e-Discovery Started– What We Were Asked to Do– How We Complied– High Level Advice– Practical Tips

Questions & Answers

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Nashville Electric ServiceBackground

Municipal electric-only utility

360,000 customers in the metropolitan Nashville, TN area

TVA distributor; NES has no generation

1,000 employees

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Disclaimer

This presentation is not intended to offer legal advice.

My intention is only to raise the awareness of information technology professionals in dealing with e-Discovery

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How e-Discovery Started – Case 1

A letter from a law firm in February 2008 stated that their client might file a lawsuit against NES for discrimination in hiring and promotions.

The lawsuit would be handled in Federal court.

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What We Were Asked To Do

Comply with the Federal Rules of Civil Procedure (and avoid huge penalties for not complying).

Retain ALL Electronically Stored Information (ESI) until further notice.

The only excluded data was transactional databases such as SCADA, Outage Management, CIS, ERP, etc.

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How We Complied

No instructions to the general employee population – most everything is being done by I.T. behind the scenes.

No way to build an ESI archive since the data would change constantly.

Daily incremental backups of all files and messages.

Backup tapes would never be reused.

All email messages would be archived - except for SPAM that we block from being delivered.

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How We Complied – Voice Mail

Voice mail had always been a revolving data store where messages couldn’t be kept for over 60 days.

We had to start saving all voice messages.

We did this by upgrading to a Unified Messaging version of our voice mail system which now stores all messages in MS Exchange where they are archived.

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How We Complied

I.T. had to bear the added expense of additional disk storage, additional backup tapes, storage cabinets for backup tapes, new voice mail software, etc.

The status of the lawsuit is still pending, so we have to continue what we are doing indefinitely.

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High Level Advice

I.T. should work with Legal Counsel to stay informed of the applicable ESI rules. Many states have now adopted e-Discovery.

I.T. should participate in all e-Discovery projects.

Establish written policies and procedures for handling ESI, including data retention policies – what do you keep, what do you NOT keep.

Know your data.

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Practical Tips

Clean up your ESI BEFORE you encounter a Litigation Hold.

Recognize that employees will keep information beyond the established retention date.

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How e-Discovery Started – Case 2

A lawsuit and counter-lawsuit were filed in Federal court.

Attorneys for both sides requested documents and messages from named custodians.

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What We Were Asked To Do

Assemble an ESI repository of all messages and files in the custody of the named custodians on a specific date.

Many custodians were still active employees; some were retired; some had resigned; one was deceased.

Track down messages and files of non-active employees if they had been transferred to others or placed in other locations.

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How We Complied

Immediately instructed all custodians not to delete or change anything.

Tried to identify all the messages and files for the custodians and where they were located.

Instructed custodians to assemble messages and files that were not on the network – C: drive, CD’s, etc. and to copy them to a designated area on the network.

Purchased Symantec e-Vault software and trained key I.T. employees in its use.

Built the ESI repository in e-Vault.

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How We Complied – Search

Lawyers sparred for some time to agree on the “search terms” to be used. The requestor will usually use the broadest terms and the responder will try to narrow it down.

I.T. Coordinator (me) was asked to perform a number of searches to determine the number of hits on various terms. Results were tested for reasonableness.

E-Vault had to be adjusted to enable accurate searches. As files were added, they were indexed in Google fashion. At one point, our “index sensitivity” was set too low and almost nothing could be found.

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How We Complied – Search

Search terms had to be negotiated based on the capabilities of the e-Vault software.– No wildcards in the first three letters of a term– No direct support for “within x words”– No support for phonetic searches– No support for case sensitivity

The final searches ran for about a week.

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How We Complied - Production

Produced PST files and file shares for all the search results.

Over 1,112,633 emails – 130GB Over 41,592 files – 21GB Delivered to our attorneys on USB hard drives

or DVD. Results were loaded into the attorneys e-

Discovery software for further review. Our attorneys estimated that we would have

paid about $500,000 if we had contracted out the search and production.

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High Level Advice

Get your email archiving process in place TODAY.

Consider data retention/archiving rules.

Consider users who save things beyond the archive date.

Decide if buy a search tool now or later?

Remember that search features do make a difference.

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Practical Tips

Email journaling/archiving is pretty easy going forward.

PST’s will be your biggest challenge. It isn’t hard to ingest PST’s into your archive. But, it is VERY HARD to associate these PST’s

with their originator and provide them easy search.

Users will hate having to search both their current folders and the archive. Remember that the CEO will face the same challenges as everyone else. You will not be popular.

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Questions/Answers