we must produce! presented by: terrence coan, crm – director, rm solution line lead baker robbins...

We Must Produce!Presented by:Terrence Coan, CRM – Director, RM Solution Line LeadBaker Robbins & CompanyCharlene Wacenske – Firmwide Records ManagerMorrison & Forrester LLPScott Christensen – Director, Information ServicesBell Boyd & Lloyd LLP

Agenda

IntroductionsESI – Electronically Stored InformationDiscovery steps and best practicesPartnership between Records Management and ITTwo firm’s perspectives

Intersection of RM and Discovery

What is ESI and Why is it Important?ESI is now the dominant method of storing informationESI is different than paper

Persistent (“delete” is a misnomer)Dynamic (susceptible to changes in ways predictable and mysterious)Ubiquitous (copies can exist in many places at once: servers, e-mail, PDA’s, backup media, hard drives, portable USB drives, iPods, phones, cameras, almost anywhere on the Internet, and more!)

Difficult to establish office of record or custodian

The volume is staggering – processing can be extremely costly1GB = 75,000 pages (30 boxes)100GB = 7.5 million pages (3,000 boxes)1TB = 1,000GB = 75 million pages (30,000 boxes)

Clients are Paying Attention to ESI

Heightened compliance requirementsChanges to FRCPSarbanes-Oxley Regulatory agency requirementsSecurity, privacy, confidentiality obligations

Potentially dramatic increase in costsData retention and preservationLitigation readinessLitigation managementPotential for sanctions

Business interruption issues

Attorney/Client Privilege

Clients are increasing waving privilegePost Enron - era of transparencySEC regulations

Law firm client records are…Now “front and center”Increasingly relevant in client document production

A Duty to Preserve

When does the duty to preserve arise?“Reasonable anticipation” of litigationWill always depend on the specific circumstances of the caseA plaintiff’s duty to preserve may begin earlier than the defendant’s

An event will trigger notice to the company that litigation can reasonably be anticipated

Whether or not the event constitutes notice to the company will depend on the situationThe moment at which litigation is reasonably anticipated will depend on the facts of the case

Timeline

????

?Duty to Preserve

Date varies based on triggering event

30-60 Days

Complaint/Denial to Dismiss 16(b) Conference

- Access Systems/Data- Preserve Data- Create Discovery Plan

< 14 Days

> 21 Days

Discovery

Initial Disclosures

26(f) Meet & Confer

Amendments to Federal Rules of Civil Procedures impose even more time pressure on e-data discovery issues

This diagram is for illustrative purposes only. CHECK LOCAL RULES

Issuing the Hold

Notice should provide enough specificity that recipients understand the scopeNotice should be sent by the general counsel to relevant lawyers and staff The notice should make clear that compliance is mandatoryThe firm’s records management and technology teams should jointly participate in holdsA point person should be designated to respond to questions and to provide additional information

Managing the Hold

Document all preservation efforts Regular reminders and follow-up efforts should be undertakenMultiple litigation holds require coordination It is important to release a hold properly and at the appropriate time

Collection – Data Integrity is EssentialPreparation and planning are key to a successful collectionDefensible and forensically sound procedures must be followed to collect ESIConsistent methods for extraction of materials from native systemsMeticulous recordkeeping is required throughout the process

Track collection details using collection & chain of custody logs Identify and track potential authenticating witnessesThe log should be sufficiently clear that anyone can assume responsibility for the continuing collection of the documents/dataEach document/data file must be treated as critical to ensure it can be used at trial

Process & Review

The human element of the review can be the most complicated and costly aspectThe logistics of organizing and managing the review are challenging and therefore time-consuming and expensive

Document productionOnline review

Attorney review time is approximately 80% of the cost of online reviews

Winnowing the Collection

Body of PotentialDocuments & Data

PotentiallyRelevant

IssueRelevant

PotentiallyResponsive

Produced

E-mail, IM, Bloomberg Network Shares and

Hard Drives Documents Data

E-mail collected Documents/Data

Collected Forensic Data collected

Materials for Outside Counsel to Review

Potentially includes confidential and/or privileged materials

Annotated and Redacted Collections

Agreed-Upon Production Formats

Reduced Sets of Materials for Review; Culled through Automation

Early Issue Reviewed Documents/Data

Legal Hold Email archiving Declaration of business

records

Custodian filtering (e.g. key player’s mailbox)

De-duplication & file type culling

Keyword culling e.g. “option grant”)

Early issue review Regulatory production Document processing

(PDF, TIFF)

Issue coding (hot documents)

Privilege identification Document annotation

Redaction Bulk printing/disk

creation Trial preparation

Production

Format of the production Digital or hardcopyIf digital on what media

If the materials are simply leaving the firm (vs. a formal production) does the firm retain copies?What documentation of the release is retained

Formal productionsLateral attorney transfers

Two Firm’s Perspectives

How to gather ESIWhere to store and manage ESI for attorney reviewHow to package and produceTools in the arsenal

Morrison & Forrester LLP – MailPort

Morrison & Forrester LLP – MailPort

Morrison & Forrester LLP – MailPort

Morrison & Forrester LLP – MailPort

Bell Boyd & Lloyd LLP - iExtract

Bell Boyd & Lloyd LLP - iExtract

Bell Boyd & Lloyd LLP - iExtract

Bell Boyd & Lloyd LLP - iExtract

Bell Boyd & Lloyd LLP - iExtract

Bell Boyd & Lloyd LLP - iExtract

Bell Boyd & Lloyd LLP - iExtract

Bell Boyd & Lloyd LLP - iExtract

Bell Boyd & Lloyd LLP - iExtract

Bell Boyd & Lloyd LLP - iExtract

Bell Boyd & Lloyd LLP - iExtract

Bell Boyd & Lloyd LLP - iExtract

Bell Boyd & Lloyd LLP - iExtract

We Must Produce!

Discussion?

Terrence Coan, CRM – tcoan@brco.comCharlene Wacenske – cwacenske@mofo.com

Scott Christensen – schristensen@bellboyd.com