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Structuring your Information Management to Ensure Litigation Readiness
Julian Ackert, PrincipalWashington DC
John Forsyth, HBOSEdinburgh
Andrew Haslam, Consultant
London
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Agenda
What is e-Disclosure Preparedness and why is it so important now?
What are global corporations doing today in response? How has this environment impacted US law firms? How has this environment impacted UK firms to date? How might UK firms be impacted in the future?
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1. Exponential Volume
2. Metadata
3. Unknowns
Cost and risk in determining, “Have we produced what we need to?”
Challenges of Electronic Data
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Drivers in electronic discovery
Rules New laws, i.e. changes to the CPR, FRCP
Complexity Increased complexity and dependency Increased use of computer systems Increased digital-only existence of data
Volumes Bigger storage volumes
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Company said they located and searched all relevant backup tapes, but had not. $1.4 billion in damages, adverse inference instruction, default
judgmentColeman v. Morgan Stanley
Employees deleted relevant e-mail, IT continued to rotate and overwrite backup tapes. $29 million damages, adverse inference (in ordinary employment
case)Zubulake v. UBS Warburg
Executives did not print e-mail subject to litigation hold, IT continued 60-day purge $2.75 million fine, executives precluded from testifying
US v. Philip Morris USA
The Trend in U.S. Court Decisions
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What is Litigation Readiness
“A better fence at the top of the cliff” Sound RIM as a good efficient business practice Becoming essential for certain firms i.e. SOX,
FSA, Basel 2 and MiFID May be part of due diligence in a M&A situation
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Why Litigation Readiness?
Regulatory and Compliance drivers Litigation issues Data Protection problems General information management “Best Practice"
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1. Profile your systems and data
2. Reduce the pool of backup/archival media
3. Extend records/retention policy to ESI
4. Establish “Preserve Now” team and process
5. Streamline litigation hold process
6. Manage outside counsel and vendors
7. Litigation Process “Outsourcing”
Changing the Corporate Architecture
Corporate Strategies for Litigation Readiness
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Emerging “best practices” in the US
Be first to put a reasonable plan in place, to your advantage, then cost shift
Issue litigation hold quickly, narrowly, and often Proactively involve IT at a level that gets results, pay
attention to spoliation via maintenance processes/ programs
Preserve quickly (‘anticipation’ of lawsuit), on a rolling basis
Preserve metadata Collect accessible data, broadly, cull later Sample to reduce population of documents sent to review ‘Conceptual’ document review tools
Emerging “best practices” in the US
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Reactive/technologyProactive
Original Volume (and Cost)
Scope
Preserve
Gather
Process
Host
Review
Present
Litigation
Readiness
Efficiencies in e-disclosure
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1. Understand the details of client IT systems Think global Scope of data – locations, volume, timeframe, retention Preservation options, and cost to access, cull and produce
2. Preserve data/metadata upon ‘anticipation’ Employee litigation holds should be robust, but may be
insufficient. IT should proactively preserve from a system standpoint Metadata, backup tapes, what is reasonable?
3. Develop ‘CMC’ strategy for negotiating Defensibility of preservation Accessibility/inaccessibility for collection Timeframe/format of production
The Challenge for Outside Counsel
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How has this environment impactedUK firms to date?
How might UK firms be impactedin the future?
Discussion
How has this environment impacted UK firms to date?
How might UK firms be impacted in the future?
Discussion
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How has this environment impactedUK firms to date?
How might UK firms be impactedin the future?
DiscussionQuestions?
