2

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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6

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….