allvision computing by legal for legal 2007 litigation readiness andrew haslam

Allvision ComputingAllvision Computing

By Legal For Legal 2007By Legal For Legal 2007Litigation Readiness Litigation Readiness

Andrew HaslamAndrew Haslam


AgendaAgenda What is Litigation Readiness and why is it so What is Litigation Readiness and why is it so

important now?important now? What are global corporations doing today in What are global corporations doing today in

response?response? How has this environment impacted US law How has this environment impacted US law

firms?firms? How has this environment impacted UK firms How has this environment impacted UK firms

to date?to date? How might UK firms be impacted in the future?How might UK firms be impacted in the future?


1.1. Exponential VolumeExponential Volume

2.2. MetadataMetadata

3.3. UnknownsUnknowns

Cost and risk in determining, “Have we produced what we need to?”

Challenges of Electronic Challenges of Electronic DataData


Drivers in electronic Drivers in electronic discoverydiscovery

RulesRules New laws, i.e. changes to the CPR, FRCP New laws, i.e. changes to the CPR, FRCP

ComplexityComplexity Increased complexity and dependencyIncreased complexity and dependency Increased use of computer systemsIncreased use of computer systems Increased digital-only existence of dataIncreased digital-only existence of data

VolumesVolumes Bigger storage volumesBigger storage volumes


Company said they located and searched all relevant backup Company said they located and searched all relevant backup tapes, but had not.tapes, but had not. $1.4 billion in damages, adverse inference instruction, default $1.4 billion in damages, adverse inference instruction, default

judgmentjudgmentColeman v. Morgan StanleyColeman v. Morgan Stanley

Employees deleted relevant e-mail, IT continued to rotate and Employees deleted relevant e-mail, IT continued to rotate and overwrite backup tapes.overwrite backup tapes. $29 million damages, adverse inference (in ordinary employment $29 million damages, adverse inference (in ordinary employment

case)case)Zubulake v. UBS WarburgZubulake v. UBS Warburg

Executives did not print e-mail subject to litigation hold, IT Executives did not print e-mail subject to litigation hold, IT continued 60-day purgecontinued 60-day purge $2.75 million fine, executives precluded from testifying$2.75 million fine, executives precluded from testifying

US v. Philip Morris USA US v. Philip Morris USA

Trends in US CourtsTrends in US Courts


What is Litigation What is Litigation ReadinessReadiness

““A better fence at the top of the cliff”A better fence at the top of the cliff” Sound RIM as a good efficient Sound RIM as a good efficient

business practicebusiness practice Becoming essential for certain firms Becoming essential for certain firms

i.e. SOX, FSA, Basel 2 and MiFIDi.e. SOX, FSA, Basel 2 and MiFID May be part of due diligence in a May be part of due diligence in a

M&A situationM&A situation


Why Litigation Why Litigation Readiness?Readiness?

Regulatory and Compliance driversRegulatory and Compliance drivers Litigation issuesLitigation issues Data Protection problemsData Protection problems General information management General information management

“Best Practice"“Best Practice"


1.1. Profile your systems and dataProfile your systems and data

2.2. Reduce the pool of backup/archival mediaReduce the pool of backup/archival media

3.3. Extend records/retention policy to ESIExtend records/retention policy to ESI

4.4. Establish “Preserve Now” team and Establish “Preserve Now” team and processprocess

5.5. Streamline litigation hold processStreamline litigation hold process

6.6. Manage outside counsel and vendorsManage outside counsel and vendors

7.7. Litigation Process “Outsourcing”Litigation Process “Outsourcing”

Changing the Corporate ArchitectureChanging the Corporate Architecture

Corporate StrategiesCorporate Strategies


Be first to put a reasonable plan in place, to Be first to put a reasonable plan in place, to your advantage, then cost shiftyour advantage, then cost shift

Issue litigation hold quickly, narrowly, and Issue litigation hold quickly, narrowly, and oftenoften

Proactively involve IT at a level that gets Proactively involve IT at a level that gets results, pay attention to spoliation via results, pay attention to spoliation via maintenance processes/ programsmaintenance processes/ programs

Preserve quickly (‘anticipation’ of lawsuit), Preserve quickly (‘anticipation’ of lawsuit), on a rolling basison a rolling basis

Preserve metadataPreserve metadata Collect accessible data, broadly, cull laterCollect accessible data, broadly, cull later Sample to reduce population of documents Sample to reduce population of documents

sent to reviewsent to review ‘‘Conceptual’ document review toolsConceptual’ document review tools

Emerging “best Emerging “best practices”practices”


Reactive/technologyProactive

Original Volume (and Cost)

Sco

pe

Pre

serv

e

Gath

er

Pro

cess

Host

Revie

w

Pre

sent

Litigation

Readiness

Efficiencies in e-disclosureEfficiencies in e-disclosure


1.1. Understand the details of client IT systemsUnderstand the details of client IT systems Think globalThink global Scope of data – locations, volume, timeframe, Scope of data – locations, volume, timeframe,

retentionretention Preservation options, and cost to access, cull and Preservation options, and cost to access, cull and

produceproduce2.2. Preserve data/metadata upon ‘anticipation’Preserve data/metadata upon ‘anticipation’

Employee litigation holds should be robust, but Employee litigation holds should be robust, but may be insufficient.may be insufficient.

IT should proactively preserve from a system IT should proactively preserve from a system standpointstandpoint

Metadata, backup tapes, what is reasonable?Metadata, backup tapes, what is reasonable?3.3. Develop ‘CMC’ strategy for negotiatingDevelop ‘CMC’ strategy for negotiating

Defensibility of preservationDefensibility of preservation Accessibility/inaccessibility for collectionAccessibility/inaccessibility for collection Timeframe/format of productionTimeframe/format of production

The ChallengesThe Challenges


How has this environment impacted How has this environment impacted UK firms to date?UK firms to date?

How might UK firms be impacted in How might UK firms be impacted in the future?the future?

So What?So What?


Law firms and EDDLaw firms and EDD Respond to client requestsRespond to client requests

Client is under investigation or subject to litigationClient is under investigation or subject to litigation Client requests back historyClient requests back history Client requests destruction or return of materialsClient requests destruction or return of materials

Respond to request from regulatory body or Respond to request from regulatory body or governmentgovernment

Respond to a Data Access Information RequestRespond to a Data Access Information Request Comply with a protective order issued by a court Comply with a protective order issued by a court

prohibiting sharing of information within the firmprohibiting sharing of information within the firm Preparing to defend itself against action brought Preparing to defend itself against action brought

by client or employeeby client or employee Reasonable expectation of litigation (US)Reasonable expectation of litigation (US)


What might Litigation What might Litigation Readiness involve?Readiness involve?

Records Management policy, procedures Records Management policy, procedures and documentationand documentation

Demonstrable proof that IT information Demonstrable proof that IT information management policies and procedures management policies and procedures align with and enforce RM policyalign with and enforce RM policy

Defensible litigation hold processes, Defensible litigation hold processes, procedures and documentationprocedures and documentation


What might Litigation What might Litigation Readiness involve?Readiness involve?

Defensible preservation processes, Defensible preservation processes, procedures and documentation (paper and procedures and documentation (paper and electronic information)electronic information)

Up-to-date inventory of technology Up-to-date inventory of technology systemssystems

Up-to-date data mapUp-to-date data map Methods to collect and produce required Methods to collect and produce required

materialsmaterials


What Challenges Might a What Challenges Might a Firm Face?Firm Face?

Getting management support in advanceGetting management support in advance Firm’s believe they are immune until an event Firm’s believe they are immune until an event

occursoccurs Records management policies and procedures Records management policies and procedures

are notoriously hard for firms to embraceare notoriously hard for firms to embrace



Balancing interests of competing Balancing interests of competing stakeholdersstakeholders Lawyers want to keep everything “forever”Lawyers want to keep everything “forever” Firm as a business needs to routinely dispose of Firm as a business needs to routinely dispose of

information in accordance with RM policy in information in accordance with RM policy in order to be prepared to defend itselforder to be prepared to defend itself

Client wants firm to maintain information in Client wants firm to maintain information in accordance with the client’s interestsaccordance with the client’s interests

Establishing effective communications Establishing effective communications between IT and legal between IT and legal



Doing the workDoing the work Most IT systems and procedures are designed for Most IT systems and procedures are designed for

business continuity and recovery, not disclosure business continuity and recovery, not disclosure activitiesactivities

Data privacy rules and regulations can Data privacy rules and regulations can complicate work substantiallycomplicate work substantially

People mix personal and business information and you People mix personal and business information and you might have to uncouple themmight have to uncouple them

Work efforts to preserve, collect and product can Work efforts to preserve, collect and product can be labour intensive for IT if not planned for in be labour intensive for IT if not planned for in advanceadvance



Covering the costs—which can be Covering the costs—which can be enormousenormous Identifying and capturing costs (hard and soft)Identifying and capturing costs (hard and soft) Recovering costs from clients Recovering costs from clients Absorbing unrecoverable costs in the firm’s Absorbing unrecoverable costs in the firm’s

budgetbudget


What actions should be on What actions should be on your “Strategic To Do’s” your “Strategic To Do’s”

list?list? Create a policy dialogue with firm’s Create a policy dialogue with firm’s

leadershipleadership Understand potential risks and costs of doing Understand potential risks and costs of doing

nothingnothing Present plan for E-Disclosure preparedness and Present plan for E-Disclosure preparedness and

seek supportseek support Make sure IT’s operational procedures fit Make sure IT’s operational procedures fit

with the firm’s business goals for e-with the firm’s business goals for e-Disclosure preparednessDisclosure preparedness


What actions should be on What actions should be on your “Strategic To Do’s” your “Strategic To Do’s”

list?list? Keep pace with evolving standards and Keep pace with evolving standards and

changes in environmentchanges in environment ““You will be measured today by tomorrow’s You will be measured today by tomorrow’s

standards”standards” Enforce records retention/destruction Enforce records retention/destruction

policy on electronic informationpolicy on electronic information Implement a comprehensive matter Implement a comprehensive matter

centric computing environment, if possiblecentric computing environment, if possible


What items should be on What items should be on your “Tactical To Do’s” list?your “Tactical To Do’s” list?

Establish a formal litigation hold processEstablish a formal litigation hold process Understand the high risks of e-mail and Understand the high risks of e-mail and

manage aggressivelymanage aggressively Set shortest possible retention period for un-Set shortest possible retention period for un-

filed e-mails and enforce automated deletionfiled e-mails and enforce automated deletion Ensure backup procedures are aligned with Ensure backup procedures are aligned with

retention rulesretention rules Understand and mitigate risks of users creating Understand and mitigate risks of users creating

personal e-mail archive filespersonal e-mail archive files


What items should be on What items should be on your “Tactical To Do’s” list?your “Tactical To Do’s” list?

Maintain historical and current inventories Maintain historical and current inventories of data, media, and user access rightsof data, media, and user access rights Establish operational policies and procedures Establish operational policies and procedures

to keep them currentto keep them current Distinguish between reasonably accessible and Distinguish between reasonably accessible and

inaccessible locationsinaccessible locations Maintain historical and current inventories Maintain historical and current inventories

of technology infrastructureof technology infrastructure


Questions?Questions?

allvision computing by legal for legal 2007 litigation readiness andrew haslam

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