Monica Crocker & Cathy Beil eDiscovery In The Real World

eDiscovery in the Real World: Best Practices For Imperfect and Under-funded Organizations

Minnesota Government IT SymposiumDecember 10, 2009

Session #77

December 10, 2009 eDiscovery in the Real World

Outline Background A real-world example EDRM phases Best practices – Real World – Bridging

the Gap Lessons Learned The Future


About UsCathy Beil Records Manager at

MN DHS MLIS 2010 MN-GRIN

Chair

Monica Crocker ECM Consultant,

Genus Technologies MN AIIM Board

Member CRM, PMP


Facts and Figures Email is the leading piece of evidence

requested at civil trials Companies have been fined millions for non-

compliance with holds and discovery requests – and government is not exempt!

The average knowledge worker generates 25,000 emails/year (AIIM)

1GB of data costs approximately $20,000 to harvest, process, review, and produce (CGOC)


Climate “This past year highlighted a major trend in cases

concerning issues involving the exchange of electronically stored data: an increase in judicial unwillingness to display compassion or tolerance for negligent e-discovery blunders.” (Kroll Ontrack Case Law Update & E-Discovery News January 2009 v. 9 Issue 1)

“NightOwl Inc., which handles paper and electronic discovery for law firms and companies engaged in litigation, has seen its electronic-storage business increase 600 percent over the past two years.” (MSP Business Journal, March 27, 2009)


A Real World Example… Multi-million dollar multi-year contract

cancelled, lawsuit/s ensued Hundreds of staff had contact with the

project Millions of responsive electronic

documents and emails Plus all the software code


A Real World Example… No Records Manager Litigation Hold implemented via email Identifying custodians was challenging Collection instigated by disaster – flooding Largest hold and collection DHS has ever

implemented


A Real World Example… Collection via Outlook mailbox folders,

network drive folders, a secure server Parties agreed to small group of core

custodians Vendor contracted to scan paper for core

custodians (116,000+ pages) Initial relevance review using hosted service


Discovery Process Steps1. Triggering Event (anticipated or filed)2. Freak out3. Identify responsive data4. Freak out5. Place litigation hold on responsive data6. Freak out7. Collect responsive data8. Freak out9. Process and review responsive data10. Freak out11. Produce responsive data



EDRM Phase: Information MgmtBest Practice Records

management policies in place

Litigation response procedures in place

Eliminate duplication Backups used for

disaster recovery only

Reality What’s records

management? No SOP for litigation

response Many copies stored

in many different places

Records regularly recovered from backups


EDRM Phase: Information MgmtBest Practice Technology

solutions in place that support RM policies

Training and audits to ensure compliance with policies & procedures

Legal, IT, and RM understand each other’s work and act as partners

Reality RM policies not

automated or supported by technology

RM policies exist…but no one knows about or follows them

Legal, IT, and RM don’t know each other or how to work together


EDRM Phase: Information MgmtBest Practice Comprehensive

data map in place Policies and

procedures regularly reviewed and updated

Policies regarding content ownership clearly defined

Reality No way to know

where responsive data might be

Retention schedules exist, but aren’t followed or up to date

Staff feel they own the content they create or store


EDRM Phase: IdentificationBest Practice Taxonomy and

metadata in place A place for

everything and everything in its place

Reality No standard naming

conventions or categorization

No standard storage structure


EDRM Phase: IdentificationBest Practice Clear content

ownership Records

management policies are a starting point for findability

Reality Unclear

responsibility for content

No connection between RM policies and content organization


EDRM Phase: PreservationBest Practice Activate established

hold procedures Hold in place Appropriate storage

media; migrate if necessary

Reality Identification

problems lead to patchy hold notification

Data held but can’t be retrieved

Might have to collect just to ensure preservation


EDRM Phase: PreservationBest Practice Appropriate file

formats – don’t degrade!

Ensure adequate security

Maintain audit trail and chain of custody

Reality Efforts to preserve

degrade metadata (e.g.. Office formats to PDF or paper)

Access to responsive data not controlled; can’t prove it wasn’t changed


EDRM Phase: CollectionBest Practice Activate established

collection procedures

Leverage enterprise tools

Integrate with processing and production tools

Reality Have to recreate /

re-determine collection process each time

Buy tools that might have been unnecessary with better RM infrastructure

Hasty = Wasty


EDRM Phase: CollectionBest Practice Isolate collected

data from active data

Communication Data ownership

communicated and understood

Reality Creation of a

collection area within active systems – collected data unsecured

Custodian obliviousness

Unprepared to deal with ownership conflicts


EDRM Phase: ProcessingBest Practice Utilize automated

tools (OCR) Identify active vs.

inactive content Seamless

integration IT and Legal

determine details together

Reality Overspend on manual

processing time Process inactive

content without determining if it’s necessary

Each repository has to be addressed separately

Legal doesn’t understand the technology, IT doesn’t understand Legal’s needs


EDRM Phases: Review, Analysis, Production, Presentation

We’re not lawyers—talk to them about techniques

Know when to use in-house vs. outsourced services

Good tools available– Add-ons to ECM solutions– Stand-alone solutions


Bridging the Gap


Bridging the Gap Start learning about RM – make it

someone’s responsibility – then implement policies, procedures, and audit compliance as you can

Legal, IT, and RM need to talk! Build data map as cases come up Educate staff – they’ll generate helpful

ideas and projects


Bridging the Gap – Cont. Develop SOPs for identification of

custodians and responsive data Establish a Litigation Response Team Do an initial data survey/inventory

– Prioritize– Work through it in Phases

Clarify who is responsible for content and attach ownership information to the content


Bridging the Gap – Cont. Establish SOP for litigation holds ASAP Include documentation that SOP were

followed Learn about data spoliation and

degradation and prevent it! Track preserve actions – even if it’s not

perfect!


Bridging the Gap – Cont. Standardize (and document!) processes Remind staff that you own the content

they create and store on your systems Regulate external storage – email, USB

drives, PDAs, etc. De-clutter Explore enterprise search tools


Lessons Learned in the Real World…

Being proactive is best, but every case will involve some reactivity

No organization is perfect – learn/standardize as you go!

Document, document, document Hey IT, Legal, and RM: educate each

other!

Hidden Benefits (yes, really) eDiscovery efforts can dovetail or support

other efforts– Disaster Recovery Planning– HIPAA Compliance– Data Practices Compliance– Public Data Requests– Records Management policies, esp. retention


Hidden Benefits, cont. A Data Mapping Exercise might actually

reduce costs– For storage/system support/maintenance– By revealing existing data that can be used to

make processes more efficient Good excuse to instigate collaboration

between IT, Legal, Compliance & Business



The Future… Hosted services provide

opportunities Agency resources for discovery

response are limited (RM, IT, Legal) Experience is the best teacher Staying current with best practices

and case law is a full time job Shared service model could provide

benefits


Resources Electronic Discovery Reference Model (EDRM)

www.edrm.net Sedona eDiscovery Principles

www.thesedonaconference.org ARMA www.arma.org AIIM www.aiim.org Compliance, Governance, and Oversight Council

(CGOC) www.cgoc.com Mimosa’s eDiscovery Resource Center

http://www.ediscoveryresourcecenter.com Fios’ Discovery Resources

www.DiscoveryResources.org K&L Gates www.ediscoverylaw.com Kroll Ontrack

http://www.krollontrack.com/publications/

http://www.thesedonaconference.org/

http://www.arma.org/

http://www.aiim.org/

http://www.cgoc.com/

http://www.ediscoveryresourcecenter.com/


Thank you!

Questions?

[email protected]@genusllc.com