SAVING HUNDREDS OF

THOUSANDS IN E-DISCOVERY

AND EMAIL STORAGE

Steven J. Heller

Director of Technology – Graubard Miller

Agenda

• Introduction

• Planning

• Preparation

• Production

• Conclusion

• Q&A

Introduction

Introduction

• E-Discovery Request: wrong time to start thinking

about e-discovery

• 83% of respondents in a 2000 ABA study said

corporate clients had no established procedures

• Most attorneys save everything.

• Lack of official records retention policy and

intelligent archiving plan = $$$$$ or sanctions

What Is E-Discovery and ESI?

• E-Discovery is the process of identifying, preserving,

collection, reviewing, analyzing and producing

information during civil and criminal legal action.

• ESI (“Electronically Stored Information”) refers to “any

designated documents or electronically stored

information …stored in any medium from which

information can be obtained either directly or, if

necessary, after translation by the responding party into

a reasonably usable form.”

FRCP 34(a)(1)(A)

The Electronic Discovery

Reference Model (EDRM)

Case Law & Rules Regarding ESI

• Federal Rules of Civil Procedure (“FRCP”). http://www.law.cornell.edu/rules/frcp/

• Amendments to Rules 16, 26, 33, 34, 37 and 45 of the FRCP.

• http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/EDiscovery_w_Notes.pdf

• http://www.dummies.com/how-to/content/ediscovery-federal-rules-of-civil-procedure-and-fe.html

• Federal Rules of Evidence (“FRE”). http://www.law.cornell.edu/rules/fre/

• State Laws

• http://www.fiosinc.com/case-law-rules/e-discovery-state-rules-civil-procedure.aspx

Industry-Specific Data Retention

Regulations

• All businesses/industries – IRS, OSHA, ADA, etc.

• Financial Services/Brokerage – SEC, NASD, NYSE Regs.

• Healthcare industries – HIPAA, Medicare, FDA

• Government agencies – Various regulations according to agency

• Publicly traded companies – Sarbanes-Oxley Act, etc.

• http://www.inc.com/encyclopedia/record-retention_pagen_2.html

Case Study

Case Study - Before Archiving

• Small/medium law firm (50-99 users)

• No official records retention policies

• Increasing mailstore; users archiving to PSTs

• Backup tapes for Disaster Recovery

• Amendments to FRCP imminent; other

requirements on the horizon

• Luddite mentality regarding records retention

Planning

Planning – Ideal System

• Policies and templates for:

– Implementation and verification of legal holds

– Records retention

– Internet use, instant messaging, social media

– Data storage

• Off-site e-mail archive that could double as a disaster-recovery

tool plus policy-based e-mail archive

• Consolidated content management system

• On-site and/or off-site data vault/repository with search engine

Planning – First Steps

• Researched obligations for data retention

• Researched federal, state, local, industry-specific

E-Discovery regulations

• Developed, implemented records retention policy

• Developed “action plan” and procedures for litigation holds

• Consolidated Data Stores

• Forged E-Discovery partnership between IT and legal

Planning – Taking an Inventory

• Resources in-house:

– Records Management software/system

– Content Management software/system

– Off-Site Data Backup system for Disaster Recovery

– Co-location site for business continuity and DR

• Needed:

– E-Mail archive system for data consolidation,

E-discovery and to reduce mailstores’ size

Preparation

Preparation

• Implemented records retention policy

• Implemented guidelines for legal holds

• Consolidated Data Stores

• Acquired/subscribed to off-site E-Mail archiving service

• Implemented acceptable use policies for mobile phones,

instant messaging and social media

• Blocked instant messaging, social media on Firm’s internet

• Educated end-users

Preparation - Results

• Reduced Exchange store by two-thirds

– One user mailbox reduced from 38GB to 6GB

– Saved approx. $100K in additional Exchange

infrastructure

• Eliminated PST files

– Imported existing PST files to archive

• Easy E-Discovery

– Saved approx. $200K - $400K per discovery

event

• “Free” Disaster Recovery

– Data stored in redundant offsite data centers

Preparation – Results (continued)

• Fast access, export of huge volumes email and

documents

• Stubbing and search features intuitive for users

• System administrator easily built and maintained

data preservation policies and implemented

litigation holds

• Few end user complaints

• Director of Technology slept better knowing that

he and his Firm were prepared and able to

respond

Production

Production - First Steps

• Notification from department chair regarding

pending litigation

• Litigation Hold Notice regarding pending

lawsuit sent to all employees

• IT Department implements legal holds on

Proofpoint E-Mail archives pertaining to

referenced matter

• IT Department implements legal holds on

records stored in iManage Worksite

databases/datastore

Production - First Steps (continued)

• Routine destruction of related records

suspended

• Routine overwriting of weekly backup tapes suspended

• All new records generated/received after the litigation hold preserved

• All records pertaining to the referenced matter are identified, located and preserved in their original electronic format

Production – Next Steps

• After “official” e-discovery requests, lists of search terms

and date ranges formulated

• Search terms/date ranges used for searches in e-mail

archive and content-management system

• Results copied in original format, exported to a

segregated data store for attorney review

• Exported data imported into a Concordance and/or

Relativity database for internal attorney review

• Logs are kept to document and verify each step

Production – Final Steps

• Attorneys complete document review

• Documents/records segregated into three

categories:

– Non-responsive

– Attorney/client privileged communications

– Responsive

• Responsive documents are copied onto

agreed-upon media for production to opposing

side

Conclusion

Conclusion

• Time spent on record identification,

preservation, collection and processing cut by

almost 75%

• Getting buy-in from stake holders and forging

an alliance between IT and Legal is key.

• Do not ignore e-discovery, you or your Firm will

pay the price later in sanctions.

• By being proactive and planning ahead, you

will save lots of money for your Firm and/or

clients.

Useful Resources

Useful Resources

• A Process of Illumination – The Practical Guide to Electronic Discovery, Mack, Mary, Esq. (Fios, Inc. - 2008)

• The Concise Guide to E-Discovery, Osterman Research, Inc. 2010 (www.ostermanresearch.com)

• Fios, Inc. Knowledge Center (http://www.fiosinc.com/e-discovery-knowledge-center/default.aspx)

• Law Technology News – Electronic Discovery section (http://www.law.com/jsp/lawtechnologynews/e_discovery.jsp)

• FindLaw’s Interactive Guide to Electronic Discovery (http://technology.findlaw.com/electronic-discovery/electronic-discovery-guide/)

• The Sedona Conference (http://www.thesedonaconference.org/)

• E-Discovery Pocket Guide – State Bar of California (http://litigation.calbar.ca.gov/Publications/EDiscoveryPocketGuide.aspx)

• The Electronic Discovery Reading Room (http://www.ediscoveryreadingroom.com/)