the electronic discovery reference model: what does it mean for your organization?
DESCRIPTION
Attend this session and learn how EDRM guidelines, coupled with other legal ramifications, impact how you do business today and—more important—in the future. We’ll discuss the costs of outside IT and how compliance solutions impact downstream expense. And we’ll address the question of how, with complex rules and diverse regulations governing retention schedules, your organization can come to terms with growing demands while still delivering quality service to your company.TRANSCRIPT
1 ©2010 Hewlett-Packard Development Company, L.P. The information contained herein is subject to change without notice
The EDRM (Electronic Discovery Reference Model): what does it mean for your organization?
Robert L. Tallman
IM Pre Sales Practice – Compliance, Archiving and eDiscovery
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Information and eDiscoveryBackground and Update
– Subtitle goes here
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eDiscovery … Complexity and Risk
Amount of Information
Number of People Involved
Complexity of Process
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Buy More
“Disk is Cheap”
Retain More Information
& Applications
Generate More
The Infinite Retention Trap
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– 1750 – 1900: 150 years to double
– 1900 – 1950: 50 years to double
– 1950 – 1960: 10 years to double
– 1960 – 1992: 5 years to double
– IDC 2007 - there was more digital data
(bytes) created, captured, and replicated
than there are stars in the universe
– It is now estimated that the digital universe measures 900
exabytes (900 billion gigabytes), and the number is
projected to double every 18 months
– By 2020, some estimate that information will double every
73 days
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Complexity – Number of People
Discovery Manager
IT (Applications/DB's,
Document Repositories)
HR(Protected Emp Data,
Privacy Rules)
Business Units(Custodians)
Management
Legal
R&D
Sales & Marketing
Corporate Legal(Case Planning,
Evidence Reviews)
Outside Firms(Evidence Collection ,
Outside Council)
Custodians10’s – 1000’s
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Complexity – Process, Who Is Responsible…
Effective communication is difficult
• E-mail per day
• Attention span measured in seconds, not minutes
• Text messages, Tweets, Instant Messaging, and ???
What’s the priority vs. my “real” responsibilities?
Did we reach everybody?
In the context of their daily job*
• 15% understand legal holds
• 21% understand records retention
* Source: 2008 Kahn Consulting
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Best Practice e-Discovery EDRM - Electronic Discovery Reference Model
www.edrm.net
IT Responsibilities
Legal Responsibilities
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Information Sources
Business applications
Order management,
inventory, financial, etc.
“Structured data”
Communication and
collaboration tools
E-mail, Outlook, SharePoint, etc.
“Semi-structured data”
End user toolsMicrosoft Word, Excel, Adobe
Photoshop, etc.
“Unstructured data”
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Where’s the Data You Need?
Identification
Cloud Stored
Offline Storage
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Lower the costs
• Approaching “Tsunami”
Increase efficiency
• Repeatable process
Mitigate Risk
• Litigation-ready foundation
Changing the eDiscovery Focus
HP’s Perspective:
People, Process and Technology together are the solution….
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Phillip M. Adams & Assoc., LLC v. Dell, 2009WL 910801 (D. Utah Mar. 30, 2009)
– Plaintiff alleged that ASUS Computer International “reverse engineered”
his patented solution to floppy drive data loss
– ASUS produced virtually no evidence supporting its claim that it invented
its solution independently– claiming it simply did not retain records very
long
– Magistrate Judge David Nuffer ruled that ASUS’s “lack of a retention
policy and irresponsible data retention practices…” Violated Rights
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Phillip M. Adams & Assoc., LLC v. Dell, Inc., 2009WL 910801 (D. Utah Mar. 30, 2009)
Issue:
When did the duty to preserve arise and were defendants culpable for
loss of data?
Holding:
Duty to preserve arose based on industry environment, including
litigation on similar issues; culpability was “founded in [defendant’s]
questionable information management practices.”
?
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WL 3833384 (N.D. Cal. Aug. 12, 2008)
Keithley v. Homestore.com, Inc., 2008
– In this patent infringement case the plaintiff requested terminating
sanctions for the Defendants failure to produce evidence.
– Magistrate Judge Elizabeth LaPorte found that the Defendant made
misrepresentations to the plaintiff and the court, failed to do an
adequate search and production initially, and was liable for some
spoliation of evidence, particularly source code
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WL 3833384 (N.D. Cal. Aug. 12, 2008)
Keithley v. Homestore.com, Inc., 2008
Issue:
What sanctions were appropriate for “egregious” discovery violations?
Holding:
“The facts – specifically that Defendants have no written document
retention policy nor was there a specific litigation hold put in place.
That at least some evidence was destroyed…that defendant made
material misrepresentations to the Court and Plaintiffs…and that
Defendants have produced an avalanche of responsive… information
only after the court informed the parties that sanctions were appropriate
– show a level of reckless disregard for their discovery obligations
and for candor and accuracy before the Court sufficient to
warrant severe monetary and evidentiary sanctions”
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No. 80922-4 (Wash. Supreme Court, Nov. 25, 2009)
Magana v. Hyundai Motor America
– Plaintiffs, injured in a car accident with a truck, alleged that their injuries
were partially caused by a design defect in their 1996 Hyundai accent.
– Hyundai initially refused to produce records relating to other failures of
allegedly similar seatback designs.
– Some such records were not preserved.
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No. 80922-4 (Wash. Supreme Court, Nov. 25, 2009)
Magana v. Hyundai Motor America
– “Hyundai had the obligation not only to diligently and in good faith
respond to discovery efforts, but to maintain a document retrieval system
that would enable the corporation to respond to plaintiff’s requests.”
– “Hyundai is a sophisticated multinational corporation, experienced in
litigation.”
– Wash Supreme Court held trial court acted “well within its discretion” in
entering $8 million default judgment plus fees against Hyundai
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Public Perceptions of Big Companies
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Three Keys for eDiscovery
Pre-litigation Readiness is Key: Make sure you have an adequate written document retention policy and archiving system
Be prepared ahead of time with litigation hold procedures that can be quickly and easily implemented when needed
Upon anticipation of litigation, or litigation, be sure to preserve and be prepared to produce all relevant records on a timely basis
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Proactive Steps for Litigation Readiness
– Subtitle goes here
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Infinite Retention
It’s worked so far!! ???
It’s easy
Lack of solutions
Disk is cheap
Lack of awareness
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Energy
Cooling
Backup
Floor Space
Recovery
Replication
PerformancePersonnel
Governance
Compliance
Risk
e-DiscoveryRunaway IT Spend Performance, Storage,
Personnel, …
Diminished End User Productivity
Performance, search, replication, …
Increased RiskInability to meet regulatory compliance / e-Discovery
obligations
Disks May Be CheapInfinite Retention is Not
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We Can Not Spend Our Way Out of this
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…what do I keep?
What do I have?
…for how long?
INFORMATION GOVERNANCEInventory, Analysis, Classification, Archiving, e-Discovery and Records Management
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Are These Important to the Organization?
The email is a record
The paper now has context, authenticated and is dated
Record the context to the activity that the object was used for
A rock painting with recorded context is a record
Objects without context
= not important
Reco
rd C
olle
ctio
n
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• Identification of responsive data relies on select business users
•Legal hold happens at the application level
• Infinite hold on applications?Structured data:
•Rely on a large number of users
•Need to “collect” in order to “preserve”
•Large amount of duplicate dataUnstructured data:
Unstructured Data
Costs are for Processing,
Analysis and Review
Structured DataeDiscovery
expenses are IT & user costs for Identification, Collection and
Legal Hold
eDiscovery pain points
Structured vs. Unstructured Data
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RISK and LIABILITY
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Record Lifespan in a Business Application
Business application
Creation
Non -changeable
Busi
ness
Valu
e
Time
Business complete
Audit
Lawsuit
Dispositioneligible
Expiration
Business users
IT
$$$$$$$$$$1
Entire application subject to legal hold3
4
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Software Solutions
Document
Collection
Document
Collection
100%
100%
Start (Time)
Start (Time)
Software Enhanced Filtering, Deduping and Review
Vo
lum
e o
f D
ocu
men
ts
100%
90
80
70
60
50
40
30
20
10
0
Standard Filtering, Deduping and Review
Vo
lum
e o
f D
ocu
men
ts
100%
90
80
70
60
50
40
30
20
10
0
Trial Counsel Oversight
92%
Elimination of Exact Duplicates
Redundancy Suppression
78%
5%
5%
Detailed Review & Analysis
Detailed Review & Analysis
10%
10%
Manual Review
Document Mapping
Initial Review
Initial Review
Savings
Finish
Conversion
Conversion
Production
Production
Finish
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Managing ComplexityAutomation opportunities to reduce costs
Legal Discovery Process Chain
Volu
me o
f re
sponsi
ve d
ata
Relevance to investigation
Litigation/AuditReady Infrastructure
Preservation, Collection
ProcessReview Analysis
ProductionIdentification
Records, archiving, & search infrastructure choices will:– Impact the initial volume of responsive data.– Enable companies to rapidly prepare for “meet and confer.” – Facilitate operational efficiencies – Drive a repeatable and defensible process
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Capture, classify, preserve, discover, and analyze information faster
Document and records management with HP TRIM
Compliance archiving with HP IAP (Integrated Archive Platform) Legal analytics with Clearwell Systems
www.edrm.net
HP Solutions for Best Practice E-discovery
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Key Benefits
• Apply compliance policy management across the enterprise
• Prove authenticity with version/access control and audit trails
• Reduce risk with global cert. standards and best practices
• Manage physical content with the same rigor as ESI
• Establish and enforce a security structure that automatically governs how workers use information
Key Capabilities
• Seamless integration with MS Office and SharePoint enables easy capture, updating and reuse of business information
• Integrate business and vertical applications with a built-in software development kit (SDK) and Web Services
Document and Records ManagementManage information faster with HP TRIM software
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Business Application
Record lifespan with HP Structured Records Management Solution
Records Management System
Creation
Non Changeable
Busin
ess V
alu
e
Time
Business Complete
Audit
Lawsuit
DispositionEligible
Expiration
Deferred
Delete
Business
Users
Legal / Records Managers
$$$$$$$$$$
Application subject
to legal hold Records Management system supports legal hold
IT
REDUCED
RISK/LIABILITY
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5
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Key Benefits
• Control information retention within a centrally-managed, searchable archive solution
• Focus data analysis/processing on the right data set(s)
• Establish and demonstrate an immutable audit trail
• Reduce the need to bring in consultants to assist e-discovery searches
• Manage email with continuous capture, control and protection
Key Capabilities
• Set automated data retention and destruction polices
• Quarantine search results for indefinite periods
• Export quarantined and archived data to legal analytics tools
• Encryption, WORM capability, and digital signatures
• Restrict access and search to authorized personnel
Discover information faster with HP Integrated Archive Platform (IAP)
Compliance Archiving
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Legal Analytics
Key Benefits
• Gain a new level of visibility across all matters
• Decrease costs up to 90%
• Reduce review time from months to hours
• Get up and running < 25 min (turnkey appliance)
Key Capabilities
• Proven, seamless integration with HP IAP
• Enterprise-class e-discovery management
• Simple and intuitive UI for early case assessment
• Industry-leading document processing performance
• Advanced culling, filtering, and analysis
• Rapid reviewing, tagging, and exporting
• Productivity tracking and reporting
Analyze information faster with Clearwell
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• Eliminate unneeded data
• Structured & unstructured data
Lower the costs
• Asset for the knowledge worker
• Centralized access
Increase efficiency
• Enforce retention times
• Immutable audit trailMitigate
Risk
Benefits of HP Solutions for eDiscovery
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eDiscovery Maturity Model
Optimizing cost & efficiency•Can’t use to improve business insight •Legal analysis & contextual searches are difficult & time consuming •Proactive identification of relevant information is inaccurate•Integrating business processes and RM is difficult•Lack of expertise in defining optimal risk/reward tradeoff & a master strategy / deployment plan
Defining & deploying a basic capabilities•No ability to leverage legal knowledge base•Cannot accurately do early case assessment •Preservation (litigation hold) process impacts business•Preservation process does not guarantee integrity of evidence•Collection of evidence is still manual and ad-hoc•Identification of custodians & evidence is too costly
• Admitting there is a problem• Evidence authenticity cannot be proven• Low quality evidence drives extremely high legal analysis fees• Difficult & costly to determine information custodians• IP leakage / loss is continuously occurring• Process is not defensible in a court of law• Non-repeatable ad-hoc process when respond to subpoenas• Little understanding of relevant regulations & business risk
Manual P
roce
sses
Hyb
rid
Auto
mation
Centrally
A
dm
inis
tere
d
Reactive e-Discovery
Mixed Reactive Proactive
e-Discovery
Proactive e-Discovery
Organization Characteristics
Optimizing cost and efficiency
•Identification & preservation centrally managed
•Repeatable, defensible discovery process
•Interested in extending technologies into business insight
Defining and deploying a basic capabilities
•Aware of legal, regulatory, & compliance requirements
•Have taken basic steps to address e-Discovery readiness
•Have identified where lower costs & risk further
Admitting there is a problem
•Don’t have a clear understanding of your business risk
•Spend a lot of money on legal fees
•Duplication of work
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“What is the one thing I have that my competitors do not have? What can I invest in that my competitors cannot replicate?
Information.
It’s the new competitive edge.”
Source: “The Value Factor,” by Mark Hurd & Lora Nyberg
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IM Transformation Experience Workshop: Your first step to a successful Information Management execution
Location: at customer premises or HP Invent Center
Duration: half day
Content: practical, structured, PowerPoint free
Attendees: customer CxO, HP senior consultants
Enrolment: Via assessment questionnaire
Main objectives
•Define your IM needs in a structured way
•Establish where you are / will go on your IM roadmap
•Provide templates, examples and “how to” advice
•Give immediate value, leave behind a report
•Ensure follow up with the same resources in the room
For more information
•Please contact you HP account manager.
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For MoreInformation…
www.hp.com/go/imhub
The new HP InformationManagement Digital Hub
• Discussions
• Best Practices
• Reviews & More
• Contact us
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Q&A
44 ©2010 Hewlett-Packard Development Company, L.P.
To learn more on this topic, and to connect with your peers after
the conference, visit the HP Software Solutions Community:
www.hp.com/go/swcommunity
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