PowerPoint Presentation - Corporate Ediscovery Forum

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PowerPoint Presentation - Corporate Ediscovery Forum Powered By Docstoc
					                     Houston National Forum
                          October 2010
                                        Corporation Attendees
   BBVA Compass, BP, Chesapeake Energy, ConocoPhillips, Dell, El Paso Energy, Enterprise Products,
Fox Entertainment Group, Halliburton, HCC, Hess, John Deere, Key Energy, KBR, Marathon Oil, Microsoft,
NuStar Energy, NY Federal Reserve, Prudential, Qualcomm, Sony Corporation of America, Sony Electronics,
                            Total, Towers Watson and Waste Management

                                  Conference Number: 866-622-6625
                                      Conference ID: 6496594#
                       Supporting Documents are located in Document Repository

     Houston National Sponsors: LeClairRyan, Hudson Legal and HSNO
             8:30am – 9:15am

- Name and Affiliation
- Role & Responsibilities
  (E-Discovery Response Team)
- Additional Comments

                 Legal Update

Defensible Client-Managed ESI Preservation and
Collection Processes in Light of Recent Case Law

LeClairRyan: Bill Belt, Daryl Shetterly and Alon Israely (BIA)

                  9:15pm – 10:15am
        10:15pm – 10:30am
“Leveraging Exchange 2010 for ECA and eDiscovery”
              EJ Bastien (Microsoft)

                  10:30am – 11:15am

                   October 28th, 2010

        11:15pm – 11:25am
    E-Discovery Vendor/Provider Analysis

Panel Participants: Cynthia Bateman (KPMG), Paul Meyer (Towers
  Watson), Renee Meisel (Dell) and David Neff (ConocoPhillips)

                     11:25am – 12:15am

                       October 28th, 2010

            Lunch Presentation
         "Social Media and Cloud Technologies:
“ESI Outside your PCC: Preservation, Custody & Control”
   Nicholas Bunin (Fox Entertainment, CEDF Chairman)

                  12:15pm – 12:45pm

         12:45pm – 1:00pm
           Managing Outside Counsel
        When e-Discovery Work is Conducted
           In-house and/or by Vendors
     Panel Participants: Joe Banks (Microsoft), Brent Griffy (ConocoPhillips), Jane Rushton
            (Prudential), Jeri Lou Head, Susan West (Sony Corporation of America)


                                      October 28th, 2010

   •   In-house counsel assuming more responsibility for some e-Discovery processes.

   •   Reduction in costs
   •   Greater control over your data
   •   Early Case Assessments
   •   Reduced dependency on outside counsel
   •   Stronger partnership w/ outside counsel – if done well

   •   Challenges by opposing counsel
   •   Strained relationships with outside counsel re: lack of visibility into the in-house
       processes as O/C is ultimately responsible to the court
   •   Increased costs due to extra cycles caused by lack of coordination or inadequate
               Best Practices to Improve
•   Timely and relevant communications
•   What do we mean by transparency?
•   Starts with preservation and continues on
•   Identify key members of the legal team that need to be included on the communications
    (e.g. in-house paralegals, e-Discovery specialists, Outside counsel, Vendors)
•   Materials to provide Outside Counsel:
      – Lit Hold Notice template
      – Form objections (general, NRA, IM, etc.)
      – E-Discovery Process Summary of internal processes – detailed
      – Baseline privilege terms
      – Document Review Protocol used by contract review attorneys (including Privilege
      – Invite Q’s and modify protocols – if necessary

    How to Quantify the Lower Costs?

•   Most e-Discovery vendors & O/C charge on a volume (per GB) basis
•   Track GBs of raw data collected
•   Track GBs of data culled
•   Track GBs of data requiring review
•   Contract attorney review firm can provide metrics on how many GBs an
    attorney can review per hour
•   Easy to calculate metrics for savings on volume charges due to the fact you
    have done data minimization in-house
•   Easy to calculate metrics for hourly rate savings using contract attorneys vs.
    outside counsel attorneys (even if they have their own e-Discovery group)
•   Cost savings are significant & can be used to support additional internal
    headcount for e-Discovery team

              E-Discovery Vendor Working In-house Counsel
                         and w/ Outside Counsel

•   Engage early – establish pricing
•   Obtain process flow documentation
•   Communications protocol

• Vendor
• Outside Counsel
• In-house paralegal and e-Discovery specialist
• Form of communications: email and conference calls
• Determine production specifications: Opposing Counsel & Outside Counsel
• Clients need to give final approval on decisions

                Duty of Loyalty

• Ethical Issue: Client confidences learned in
  representation that can be used against the client in
  future adverse litigation.

• Staffing Issue: Law firm or its vendors may poach
  skilled IT staff from clients.

    Ethics and Confidences learned in

• E-Discovery lawyers and vendors learn a
  company’s infrastructure, processes and
• What can stop the law firm or vendor from using
  this knowledge for a future party or government
  agency adverse to the company?

Model Rule 1.6 Confidentiality of Information

  (a) “A lawyer may not reveal information relating to the
      representation of a client unless the client gives
      informed consent, the disclosure is impliedly
      authorized to carry out the representation or the
      disclosure is permitted by paragraph (b).”

   (b) List of when confidences can be breached: e.g.,
       prevent commission of a crime, imminent bodily
       harm or death, disputes with the client.

Model Rule 1.8 Conflict of Interest:
        Current Clients

 (b) “A lawyer not shall use information relating
   to representation of a client to the disadvantage
   of the client unless the client gives informed
   consent, expect as permitted or required by
   these Rules.”

 Model Rule 1.9 Duties to Former
(a) Shall not represent if “materially adverse.”
(b) Shall not represent in a “substantially related
(c) (1) shall not “use information relating to the
    representation to the disadvantage of the
    former client . . . or”
   (2) “reveal information relating to the

        Conclusion: Ethical Limits

• Model Rules 1.6(a) and 1.9 (c) prevent
  adverse use of knowledge by former E-
  Discovery counsel without consent.
• Practice Tip I. Be sure that client weighs
  whether E-Discovery knowledge is material
  when considering to consent.
• Practice Tip II. Consider contractually
  obligating counsel’s vendors to Rule 1.9(c).
        Staffing Retention Conflict

• Where is the risk?
  – Law firm not used by company on a
    regular or institutional basis.
  – Referrals to third parties by lawyers
    familiar with staff.
  – Partners in firm with long term
    relationship who are outside normal
    client-law firm team.
      Managing the Retention Risk

• Use non-solicitation language in
  engagement letter.
• If this is not done, leverage value of
• Possible violation of Model Rule 1.9(c)(1)
  in extreme cases?

         1:45pm – 2:00pm
          Preservation & Collection Methodologies
                        “New Challenges”

Tina Gibson (Devon Energy), Joe Banks (Microsoft), Steve Stawski (Sony Electronics),
         Alex Buck (Barlit Beck) and Mikki Tomlinson (Chesapeake Energy)

                              2:00pm – 2:45pm

                 New Challenge: Cloud Computing
Who’s Responsibility is it to Preserve and Collect?
      Whether ‘on premises’ or ‘in the cloud,’ an entity (owner) is responsible for
        identifying, preserving and collecting the data for litigation purposes
How Easily Accessible is the Data?
      Ensure you have export capabilities – it is key to control and production
What Safeguards are Available to Ensure Compliance?
      Know and understand your administrative rights (e.g. Exchange and SharePoint)
      Contractual provisions to negotiate:
           Who has access to your data? Purpose of the access?
           Prohibit co-mingling of data with other companies’ data
           Specify owner of data is responsible for preserving, collecting, reviewing, and
             producing content from the cloud
           Cooperation clause? (e.g. Motion to Quash)
           Who bears the costs of responding to subpoenas?
           Address sale of company/bankruptcy events
Are There Risks for Attorney-Client Privilege Waivers?
      Minimal risk with appropriate contractual provisions

           New Challenge: Bifurcating Counsel

Trial Counsel v. National E-Discovery Counsel

Involvement of Lead Trial Attorney is Key

Many Trial Attorneys Like to “Check-Out” of the E-Discovery Process

Beating the Dead Horse: Communicate!

       New Challenge: Auditing Your Hold Process
You Have a Repeatable, Defensible, and Transparent Hold Process in Place…or Do You?
      Don’t expect what you don’t inspect
      Interviewing (virtually or otherwise) is key
      This is the “starting line” in your discovery efforts…if this isn’t right, can you really handle the
       remaining steps internally?
Why Should You Audit the Hold Process?
      To ensure consistency and compliance…people still have to use the technology
      To find and fix issues before your adversary finds them
      To prevent a crisis…gross negligence finding
What Should the Audit Cover?
        Initiating the Hold (triggering event)
        Scoping recipients / Notice details
        Employee confirmations / Employee movement & termination
        Issuing reminders / Revising the Hold /Releasing the Hold
Socialize the Audit Results and Change Management Opportunities
      Establish policies and guidelines with defined roles and responsibilities
      Create an action plan to remediate issues/findings
      Use as an educational opportunity

       The only real mistake is the one from which we learn nothing. ~John Powell

                      New Challenge: Self Collection
When Might it be Acceptable (and Defensible)?
      Centrally stored data (financial/sales; customer call records)
          Targeted data vs. producing the entire database
          Avoid over production
          Know your data repositories (doc types contained; platform; how and who manages;
            searchable vs. not searchable, etc.)
Risks With Self or Custodian Collection
        Over collecting /under collecting
        Metadata spoliation
        Collection gaps - compound files \calendars \ searchable PDFs
        Comprehensive searching – Home drives\USB devices\retired notebooks
        Inconsistent and not repeatable – Search may vary from custodian to custodian
        Multi-language searching depending on custodian
        30(b)(6) - defensibility of collection process
        Misuse of script and/or technology


         New Challenge: Self Collection - Metadata
Metadata is Considered Part of an Official Record and Can be Used to:
          Search
          Authenticate
          Provide context for documents
Metadata Can be Used to Establish and Defend Against Allegations of:
          Fraud/Forgery
          Infringement
          Spoliation
          Motions for sanctions and adverse inferences

                        Sample Audit Checklist
Initiating Holds
      Is there a clear understanding or policy on what triggers a hold (e.g., a new matter)?
      Is there an established standard for how soon the hold will be issued?
      Are holds actually issued when triggered and how quickly?
      What is the average time lapse for responding and are there individuals or practice areas that
       consistently fall short?
      Do you have drafted notices that are failing to be sent?
      How many times are notices re-issued for errors in their first iteration?
      Have you involved outside counsel?
Scope of Recipients
      Do you have established policies and guidelines that are understood by all those who scope
      Are the right people included on notices that have been sent? Legal, RIM, IT, and HR
       (discovery team)?
      Does every notice include business people? Should it?
      Do similar matters have similar sets of hold participants?
                  Sample Audit Checklist Cont.
Notice Language
       Do notices contain an easy-to-understand description of the matter?
       Do notices adequately describe what information is to be preserved?
       Do the custodians understand the hold and know how to respond?
       Can RIM apply the hold? Are records and date ranges described?
       Can IT apply the hold? Are types and ranges of data and custodians described?
       Are confirmations of compliance required?
       Are they received in a timely manner?
       Do custodian records include their confirmations of compliance?
       Is there documentation on non-responders and actions taken?
     Are notices re-issued when the matter scope or issues changed? Are these changes well
      communicated and easily understood?
     Are confirmations required when the issues or scope of hold changes?
     Do recipients understand what has changed when they receive a re-issued notice?
     Are periodic reminders sent for all matters?
     Is there a standard procedure for issuing reminders and do all members of the team
      understand it?
     Are reminders documented?
                  Sample Audit Checklist Cont.
Interviewing Custodians
        Are you interviewing the recipients and asking about their information practices and habits?
        Are custodian responses captured and documented?
        Is information gathered to identify additional custodians?
        Is information gathered used to refine the hold? Is it used to determine and execute
Releasing the Hold
      Are release notices sent when the matter closes?
      Are all the hold recipients notified of the release including IT, RIM, HR and business staff?
      Are releases not issued in lieu of issuing another hold in a similar matter? If so, is this
       documented and transparent in the legal department?
      Does the release remind the recipients of continued preservation obligations in other
       litigation holds?
         2:45pm – 3:00pm
             Working Group Breakout Sessions

(Members Only Sessions) - Dial In Number: 866-622-6625

(Conference ID listed below for each Working Group)
Information Governance – 6496594#
Tools & Methods – 1362085#
Social Media – 1838470#
Cloud Technologies – 8080747#
Records & information Management – 6942428#

          Houston National Forum
            October 29th, 2010

                       Conference Number: 866-622-6625
                           Conference ID: 6496594#
            Supporting Documents are located in Document Repository

Houston National Sponsors: LeClairRyan, Hudson Legal and HSNO
Social Media And Litigation: Is Anyone Really An Expert?

   Steps You Can Take To Address Social Media Issues
                When Litigation Arises

          Mark Yacano – Hudson Legal

               “E-Dialogue with Judges”

Honorable Judge Honorable Judge Richard Kramer, California Superior Court, County of San Francisco

                                   10:00am – 12:00pm


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