“eDiscovery and Information Governance is a dynamic and complex market. To be successful with eDiscovery projects and develop broader information governance strategies, teamwork across traditional roles is mandatory,” says James D. Shook, Esq., Director of eDiscovery and Compliance Practice at EMC. “This is our third year of sponsoring a day of thought leadership CLE sessions at LegalTech. With this year’s lineup we have brought together the best legal and technical minds to deliver best practice insights during sessions at Legal Tech in New York.”

EMC is sponsoring the following sessions for CLE credit on January 31st in Concourse E:

Harnessing Search Technology Effectively – 9:00 am – 10:00 am

Search has become a cornerstone of all legal technology, from legal research to early case assessment to document review. As search becomes more accessible, it also becomes more powerful, requiring experts in the technology to take full advantage of the available tools. There is still a gap though, as search methodologies used in different stages of a case are vastly different. Case teams need to assess what strategies must be used, engage experts in both subject matter and search technology, and be aware of potential pitfalls. This session will provide attendees an opportunity to hear from experts in the field, preparing them to tackle search more effectively in their own cases.

Speakers:

Charlie Kaupp, eDiscovery Consultant, Digital Strata, Inc.

Don C. McLaughlin, Jr., Esq., President and CEO, Falcon Discovery

Dan Brassil, Principal Consultant, H5

Kenneth Rashbaum –  Rashbaum Associates LLC

Overcoming the FUD To Bring eDiscovery In-House – 10:30 am – 11:30 am

Bringing more of the eDiscovery process in-house can result in substantial savings and better control over the process.  Yet many corporate IT and in-house counsel are afraid to assume the responsibility for the process.  Listen to a panel of experts discuss the most common concerns and how to overcome them to improve your process.

Speakers:

David Yerich, Esq., Director of eDiscovery at United HealthCare

Ian Campbell, iConect

James D. Shook, Esq., Director of Compliance and eDiscovery team EMC

Security, Hacking, and the Rise of Corporate CyberTerrorism: What every GC must Know! – 12:00 pm – 1:00 pm

 The benefits of corporate networks and the Internet, which deliver instant global communications, have accelerated the pace of business.  However, they have also created new vulnerabilities that cyber criminals, nation-states and “hacktivists” have learned to exploit.  Andrew Cohen, Esq., and Branden Williams were part of a team that responded to an advanced cyber attack on RSA in March of 2011.   In this session, you will learn the impact of advanced threats to corporate security, the impact of large scale intellectual property theft, and what every General Counsel must know to help protect corporate interests.  RSA, The Security Division of EMC, provides security, compliance and risk management solutions to organizations throughout the world including 90 percent of Fortune 500 companies.

Speakers:

Andrew Cohen, VP and Associate General Counsel – EMC

Branden Williams, CTO, CISSP, CISM – RSA, an EMC company

Heidi Maher, Esq., EMC – Principal, eDiscovery and Compliance Practice

The Case For Machine Coding in Document Review: A Judicial Perspective – 2:00 pm – 3:00 pm

The case for using machine coding and classification of documents in the eDiscovery review process has never been stronger.  As costs and ESI volumes continue to grow, machine coding promises faster, cheaper – and better.  Yet there remain many concerns about how to properly use these technologies, and the potential for risk when used incorrectly.  Hear what a prominent member of the Judiciary and members of the Bar have to say about the promising future – and their concerns for reaching it.

Speakers:

Honorable Andrew J. Peck, United States Magistrate Judge

Ed Larkin, Esq., Partner, Venable LLP

James D. Shook, Esq., Director of Compliance and eDiscovery team EMC

What it takes to have fun as a 30(b)6 witness – 3:15 pm – 4:15 pm

We have all heard horror stories, reviewed cases about organizations / defense teams who crashed and burned in court when they brought their ill-prepared, inarticulate, tech heads into the courtroom as “subject-matter-expert” (SME) / 30(b)6 witnesses in Federal Court on electronic records and eDiscovery matters.  Therefore, we have seen many examples of what not to do in those critical / do-or-die situations.  We at EMC thought it was about time someone showed you and explained what an example of an effective 30(b)6 witness looks like in addition, to what it took to prepare, what to do, what not to do and what was learned from the experience.  This session will employ a role-play learning method with a plaintiff as-well-as defense attorneys and our SME witness.

Speakers:

Thomas Reding, CRM

Heidi Maher, Esq.

Richard Vestuto, Esq., Vice President, Client Advisory Services, Merrill Corporation

Laws, Regulations, and the Cloud: The Confluence of eDiscovery with Pervasive Governance – 4:30 pm – 5:30 pm

Today, many organizations are looking to the Cloud for answers for controlling escalating information management costs.  However, organizations cannot just be focused on the perceived information technology infrastructure cost savings offered by the Cloud.  Organizations must be equally focused on laws, regulations and information governance issues.  If your organization has governance issues currently, then the Cloud will only exacerbate them.  Discover what the Cloud means to others and why it’s critical to place Pervasive Governance ahead of any Cloud initiative in your organization.

Speakers:

Fiona Schrader, Principle Product Manager Records Retention, Compliance, and Governance

Tom Reding, CRM, EMC – Principal eDiscovery and Compliance Practice

William O’Neil, Jr., Esq., EMC – Principal eDiscovery and Compliance Practice

RSVP and reserve your session seat @ EMC’s LegalTech Sessions

In this presentation, you will learn:

• How to Find the Goods and the Gold – How do we discover and collect content on the companies’ and and experts’ Twitter, Facebook, YouTube, and LinkedIn pages, or blogs?
• Issues with Privacy Laws and Privacy Walls – What privacy laws or regulations need to be considered when conducting discovery of social media content? How do they differ in different regions?
• The Importance of Social Media Policies – What type of policy and enforcement activities will help companies to take advantage of social media’s benefits while minimizing the risks it imposes on the business?

Discover the OnDemand Webinar

William E. O'Neil, Jr., Esq., EMC eDiscovery expert

Part III

Faster, better, cheaper was the mantra at NASA as it set goals to improve quality, efficiency and better manage costs after several setbacks…it was a way to set goals and measure success from a “top down” approach of looking at it from all perspectives and seeking to better quantify risks & rewards in various programs…expect quality, but demand efficiency!!!

The Legal Profile:

An often overlooked link between the IT footprint and the FRCP is the notion of “source  mapping” or “mapping of sources” for the Rule 26f “Meet & Confer Conference” where the parties need to discuss & disclose potentially responsive ESI by “category or type”…if the organization understands what systems and repositories contain potentially responsive information, that ESI can be managed appropriately for the matter at hand and as an indicator as a source for future eDiscovery…most organizations have certain types of legal & regulatory challenges like employment, Intellectual property or other types of litigation and key regulatory issues which form a pattern of a “Profile”.

If these systems and applications are identified or “mapped” a categorization & classification of systems, data & ESI can be developed and used as an early assessment tool and a strategic tool to ensure proper preservation of ESI and notification of potential custodians.

Put another way, employment cases and Intellectual Property cases may share some common sources of ESI (email, file shares, collaborative spaces), but typically also have systems & repositories for business information related to the particular business function that is subject of the legal inquiry.  It is rare that all systems or applications would contain responsive ESI.

Here is an opportunity to move away from the “Hold All” order and develop a defensible response protocol for legal and regulatory matters and target responsive ESI and manage the non-responsive ESI according to standard business practices.  If you can’t find the handful of relevant ESI in the terabytes of data, then “retain all” may look like the “best option” in a bad situation.

Here is some hidden ROI:

Once Responsive ESI is identified, preserved & collected, it is a reasonable assumption that the non-responsive ESI is not subject to legal hold…but subject to ordinary lifecycle management (RM) or part of the organization’s GRC efforts within a sound Information Governance Program and only retained based on categorization & classification of information.

Leverage the opportunity to do some “house cleaing”…gain file visibility and perform file remediation…dispose of ESI that has outlived its useful life in a defensible, scalable manner.

Understanding all these different elements of the People, Process & Technology in your eDiscovery process is the key to controlling costs & mitigating risks.

If you would like to discuss this topic further…please give me a call or send an email @ ted.oneil at emc.com.

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William E. O'Neil, Jr., Esq., EMC eDiscovery expert

Part II

Faster, better, cheaper was the mantra at NASA as it set goals to improve quality, efficiency and better manage costs after several setbacks…it was a way to set goals and measure success from a “top down” approach of looking at it from all perspectives and seeking to better quantify risks & rewards in various programs…expect quality, but demand efficiency!!!

Benchmarking: People, Process & Technology

Identifying all the key players in the legal & regulatory processes that request ESI (consumers) and why they need it…then find all the key players and stakeholders that identify, preserve & collect ESI and the tools currently in use to help to understand the processes and the level of effort associated with eDiscovery from an internal resource perspective as well as from the third party cost perspective…and to understand risk.

Each organization is unique…understanding who touches the process is critical…knowing this early saves resources in the long run!!

Most organizations face a mix of needs for ESI:

• Internal Audits & Board driven actions
• Regulatory Investigations
• State & Federal Litigation

Consumers of ESI may include:

• Human Resources
• Litigation Counsel
• Regulatory Affairs
• General Counsel
• Internal Audit

Personnel involved in Preservation & Collection of ESI may include:

• Security
• IT
• 3^rd Parties / Service Providers
• Custodians
• Legal Service Providers
• Outside Counsel
• Internal Counsel
• Human Resources

Understanding all these different elements of the People, Process & Technology in your eDiscovery process is the key to controlling costs & mitigating risks.

If you would like to discuss this topic further…please give me a call or send an email @ ted.oneil at emc.com.

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James D. Shook, Esq., CIPP EMC eDiscovery Expert

by James D. Shook, Esq.

This is the time of year when many make predictions for 2011.  But while we try to look forward, the reality is that as an industry, we have not yet conquered our eDiscovery challenges from 2010 – or even 2009 or earlier!  In the spirit of the season and with a nod to Charles Dickens’ A Christmas Carol, I decided to take a Scrooge-based approach to eDiscovery.  Without further ado, I present the ghosts of eDiscovery Past, Present and Future.

eDiscovery Past

In the early days of eDiscovery, even before the amendments to the FRCP in December 2006, we all made plenty of mistakes as we learned about this challenging new area.  Many of our problems resulted from collecting and preserving electronically stored information (ESI) from backup tapes; artificially segmenting the eDiscovery process into three stages known informally as “collect stuff”, “throw stuff over the wall” and “review stuff”; and pretending that eDiscovery either was a passing fad, or just could not be as difficult as we had heard.

While the list of mistakes and challenges from the past is virtually limitless (see Ralph Losey’s recent blog entry on this issue), many of these mistakes really boiled down to a few fundamental issues:  a lack of coordination and communication between Legal and IT (and Records Management or “RM”); and a lack of basic knowledge on IT systems from people working in legal roles.

If these ghosts of eDiscovery past continue to plague you, next year resolve to:

• Have your legal team learn at least the basics about your IT infrastructure;
• Insure that Legal, IT (and RM) coordinate, communicate and interact on a regular basis; and
• Have a basic plan, prepared in advance, for what to do when eDiscovery hits.

eDiscovery Present

Over the last year, we continued to struggle with the concept of when sanctions should be awarded for eDiscovery blunders, and how we should determine the severity of those sanctions.  In fact, these are such difficult issues that there is currently disagreement even within the same jurisdiction (compare Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order) with Orbit One Commc’ns, Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010)).

But there were several other trends that rang through loud and clear.  One of the clearest trends is that there is significant risk in relying upon employees to preserve and collect their own data for eDiscovery.  (See our “Weekend At Bernie’s” post).  While there is still no absolute prohibition, the problem with “custodian-based eDiscovery” is that employees can be self-interested or uninterested in a case, making it risky to assume that they will do what they are asked.  Even for those who are sufficiently motivated, many will still fail because they are under-educated on both legal and IT issues.  This makes it exceptionally difficult for them to determine what ESI should be retained as relevant to a case, and how to properly find and preserve that ESI.

Another clear trend is that unintentional – and even seemingly minor and understandable—eDiscovery blunders can cascade into prejudicing a case and result in severe sanctions.  (See Harkabi v. Sandisk Corp., 08 Civ. 8203 (WHP) (S.D.N.Y. Aug, 23, 2010).

A trend that has been around for a while, but seems to finally be gaining momentum, is enforcing the point that litigation holds do not begin upon receipt of the first Request For Production of Documents, or even upon being served with a Complaint.  Instead, the hold duty attaches when one can reasonably anticipate litigation, which typically occurs before the data of service (and for plaintiffs, will certainly occur before filing the Complaint).  Courts are beginning to take a closer look at when a party’s preservation process actually began, so companies need to get legal informed about litigation threats so that decisions on holds can be made at the right time.

If these ghosts have the chance of haunting you, next year resolve to:

• Rely more upon your eDiscovery team of investigators and counsel, and arm them with useful technologies to complete their work.  Merely hoping that your employees are handling the preservation and collection of critical ESI is no longer a viable option;

• Review your eDiscovery processes to insure that litigation holds are integrated into your business processes.  This will insure that holds can be recognized at the appropriate time and not just after litigation has already commenced.

eDiscovery Future

There are two main roads that the ghost of eDiscovery Future can take.  The first is the obvious road of emerging and future technologies.  For 2011, emerging issues will clearly include the Cloud and social media technologies such as Facebook and Twitter, and we will certainly see some new technologies that we have not yet even worried about.

The second road in the future is more sinister, and relates to issues that we should already be aware of but have failed to adequately address because they have not yet risen to the right level.  These issues are actually riskier because we should be prepared, and mistakes with these technologies may not be viewed in a forgiving light because we should know better.  As a few examples, this group would include legal issues around international data privacy, data stored in Sharepoint repositories, and structured databases.

It is difficult to predict what you should do about the ghosts of eDiscovery Future, but consider a few possible resolutions for the new year:

• At minimum, update your ESI Map to include basic information about data that may be outside your firewall (such as outsourced Email and other Cloud technologies, Facebook, Twitter, etc.);

• If you transact business outside the U.S., understand the basics of privacy law and determine whether and how they may impact you in normal litigation matters; and

• Subscribe to a publication that will keep you updated on the latest legal and technology developments (Law Technology News and its Daily Alert are terrific, free resources).

Good luck in 2011!

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Quentin Archer, Partner - Hogan Lovells, London

Kazeon eDiscovery Best Practice Webinar Series

with Quentin Archer and James D. Shook with J. David Morris as moderator.

As businesses go global, legal complications have followed. Ignoring cross border legal obligations, privacy laws, and litigation discovery orders have had severe consequences for numerous companies, including sanctions in the millions of dollars/pounds.

How does today’’s General Counsel successfully navigate the global legal seas?

James D. Shook, Esq., EMC eDiscovery Expert

Discover in this Webinar:

• US Law and eDiscovery
• UK Law and eDisclosure
• Cross border Privacy Challenges
• How to protect your corporation in cross-border disputes?

Register Now!, as space is limited for this one time premium webinar.

J. David Morris, EMC SourceOne eDiscovery - Kazeon

Rakesh R Nair, EMC eDiscovery Manager

by Rakesh R. Nair

Having spent the better part of a decade designing Information Management & eDiscovery Solutions, I decided to write a blog to share some of my findings in this space.

This is my first post and if you are even remotely interested in Information Management for the Enterprise, then read on!

Unstructured Information

Corporations large and small create significant amount of data that include documents, presentations and email messages.  Most of this data is “unstructured”, i.e it resides on file shares and employee laptops/desktops.  Industry analysts like Gartner estimate that this unstructured information accounts for 80% of all corporate information and expect it grow at 60%  or more each year.

In the simplest terms, unstructured information is nothing but “unmanaged” information.  The file system on which this information resides typically is not monitored and the content is practically invisible to employees, auditors or corporate compliance officers. In an effort to provide a greater degree of visibility, control and management of this information to meet compliance reporting requirements and enhance it’s abilities and obligations to respond to corporate litigation, many organizations have implemented one or more technologies, each of which has advantages and disadvantages:

1.     Enterprise File Backup

Many companies attempt to solve the problem by creating regular backups of all the data on the network. These backups are saved to tapes, which are typically shipped and stored at a remote location for disaster recovery purposes. Backing up all data regardless of its business value is an inefficient use of time and resources, increases the cost of tape storage and decreases the likelihood of rapid single file recovery, which is the most-used aspect of file backup, thereby still leaving the problem of quickly identifying “responsive” data, unsolved.

2.     Enterprise Content Management

Enterprise Content Management (ECM) systems can effectively manage many types of content and can provide access and version control, both of which are effective aspects of information management. ECM systems also tend to have significant costs to setup and maintain. These systems typically require an organization to purchase server and user licenses, implement policies and processes for using the system, and train its users. Because of these costs, companies often limit their ECM implementations to specific areas of their business or types of data, such as documents that pertain to finance or HR. According to many analyst organizations, ECM systems are being used to manage approximately ten percent of today’s corporate information.

3.     Enterprise Search

Enterprise Search is an effective way to index and find documents or emails that contain certain keywords.   Most are easy to implement and mid-range enterprise implementations require only a modicum of regular maintenance.  Some organizations also deploy Enterprise Search for proactive litigation readiness i.e ability to quickly produce responsive information pertaining to a litigation or an investigation.

Unfortunately, most enterprise search engines are tuned to find all the documents that may contain a particular term, rather than a specific document that may be required by an auditor. It is left to the user to sift through the thousands of returned documents to find what he needs, which can be a time-consuming and costly exercise.  For example, many enterprise search engines do not provide the ability to look for sensitive and high risk Personal Identification Information (PII) like SSN, Drivers License etc or Payment Credit Industry (PCI) information like Credit Card within unstructured data.  Additionally, search engines are mostly lacking in providing the ability to manage or take actions on the indexed documents.  Furthermore, scalability of many Enterprise Search Engines is called into question when they are required to “proactively” index and search data in the order of Terabytes or Petabytes.

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The first half of 2010 saw a plethora of decisions refining e-discovery case law and building

on past trends in a rapidly-evolving field. Attorneys from Gibson Dunn provide an overview

of recent e-discovery developments, based on their analysis of 103 e-discovery decisions

issued between January 1 and June 17, 2010.

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Heidi Maher, Esq., eDiscovery Expert

the main reasons for the high cost of eDiscovery.  Vendors and outside counsel make good money helping corporations sift through massive amounts of data to separate out privileged information.  When Federal Rule of Evidence 502 was amended with the intent to mitigate this cost, litigators all over the nation rejoiced.  However, since the establishment of the rule, it has quickly become evident that the celebration may have been a little premature.

There are eight primary provisions to the rule.  The most relevant of which is 502(b) which clarifies that inadvertent disclosure does not result in waiver when the holder of the privilege “took reasonable steps to prevent disclosure” and “promptly took reasonable steps to rectify the error.” So how do courts define “reasonableness” within the context of eDiscovery cases?

One of the premier cases addressing this standard is the Mt. Hawley Ins. Co. v. Felman Prod., Inc. 2010 WL 1990555 (S.D. W. Va. May 18, 2010).  In this case, plaintiff Felman sued defendant Mt. Hawley Insurance for an insurance claim related to property damage and business interruption. During production, plaintiff inadvertently turned over an email that was listed on the privilege log but that the defendant believed was the “smoking gun”.  Plaintiff was unaware of the disclosure until the defendant included it as an exhibit in a motion, thereby making it a public record.  Defendant claimed waiver of privilege due to plaintiff’s negligent review before production.

The court applied the following five factor test established by Magistrate Judge Grimm in Victory Stanley, Inc. v. Creative Pipe, Inc. 250 F.R.D. 251 250 F.R.D. 251, 70 Fed.R.Serv.3d 1052 (D. Md. 2008) to determine if privilege was waived:

1. The reasonableness of the precautions taken to prevent inadvertent disclosure;
2. The number of inadvertent disclosures;
3. The extent of the disclosures;
4. Any delay in measures taken to rectify the disclosure; and
5. overriding interests in justice

At first glance it appeared as though the plaintiff had taken on a massive effort to prevent disclosure of privileged documents.  It used analytic tools at numerous stages to search for carefully crafted privilege search terms, conducted a thorough document by document review of potentially privileged documents, did a second electronic search of remaining documents, and compiled an extensive privilege log. The court considered the plaintiffs review and production methods in light of all of these factors and found that their efforts were in vain, partly because: “As warned in Victor Stanley, 250 F.R.D. at 257, the failure to test the reliability of keyword searches by appropriate sampling is imprudent.”

Great latitude has been given to courts to apply the reasonableness standard on a case-by- case basis to promote fairness and efficiency. Besides the lack of sampling, other factors such as: overproduction of documents of which 30% were irrelevant, the large number of inadvertent disclosures constituting more than double the amount from the Victor Stanley case, and the failure to identify the inadvertent disclosures until the defendants included it in their motion, for the court indicated a significant lapse in plaintiff’s quality control over the eDiscovery process.  As a result, the court determined that plaintiff did not take reasonable steps to prevent the disclosure and determined that privilege was waived.

The takeaway lesson is that Rule 502 has a lot of maneuvering room.  It may give litigators a false sense of security that should they inadvertently produce privilege information, that they can easily claw it back.  However, this case has shown that even with herculean efforts it is not so easy to put the cat back in the bag.  That’s why it would be prudent to document an agreement with opposing counsel at the beginning of the case.  This agreement would state that neither side will raise the reasonability argument, or that the procedure around production has been agreed to as reasonable.  It would be even better to memorialize this agreement in a court order to prohibit any future posturing by opposing counsel.

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