E-Disccovery Best Practices 20090710 Ver02
- 1. 2009 Electronic Discovery Best Practices: Prioritizing Improvements in the Real World Presented by: Stefan Adler, H3 Consulting
- 2. Contents • Background • History – how did we get here? • Today – FRCP & EDRM • Plan • Execution phases for Client and Counsel • Trends • Q&A
- 3. Background • More like paper discovery than different – But the Differences Matter! • Evolving case law • Volume driving costs – Discovery costs are a core business issue • How do I improve process and outcomes? – Understand key cost drivers and management options – Set expectations and plan accordingly
- 4. History: How Did We Get Here? • Early: “Everything important is in paper” - ED was infrequent and specialized • 1998: DOJ v Microsoft – Only in email • 2003: Zubulake v UBS – Series of decisions improve guidance, starting to close many gaps • 2006: F.R.C.P. revised, guidance re: Meet & Confer, Disclosure, Accessible / Inaccessible • 2008: Qualcomm v Broadcom – what NOT to do
- 5. Today: Overview • F.R.C.P. accepted beyond Federal Courts • Meet & Confer – Iterate – Collection Scope, Filtering, Production Format – Test Production? • Accessible and Inaccessible • EDRM & Related Industry Efforts – Leverage guidance to develop standards
- 6. Plan: Key Considerations • Technical risks become legal risks • There is no “all” • Electronic Discovery is not a Six Sigma process – Idiosyncratic data and systems – Gaps and exceptions - plan to manage them. • Key cost drivers to manage – Number of data sources to collect / preserve – Volume of data to process and review – Reviewer cost & productivity
- 8. Today: EDRM Processing Considerations Input and output considerations - does the plan consider them all? Source graphic from www.EDRM.net
- 9. Plan: Gathering Information Work with client to identify data for consideration • IT Infrastructure - Type and location of systems – Local: Laptop / Desktop / Home PC / PDA, etc. – Network: Email server, file servers, databases, – Archive: Backup tapes, third parties, etc. – GET TAPES – Documentation: Policies & Procedures AND Practices • Individuals, departments & projects / initiatives • Relevant time period, terms & data types Implement litigation hold NOW
- 10. Plan Acceptance: Meet and Confer • Discuss plan and modification when new info arises • Custodians & servers to capture • Filtering criteria - time periods & terms • Production format – Consider use after production • Rolling production – first batches for validation – Key custodians go first – Validate date & term filtering criteria, other process issues (key opportunity to lock down additional efficiencies) • Accessible / inaccessible data
- 11. Execute: Client Phases • Help client understand obligations & risks • Implement litigation hold immediately – Talk to custodians and ask what data they have – don’t take IT’s word for it – Validate the right custodians • Sound collection is key – issues from initial steps will haunt the project throughout – You don’t have to process all data you collect – Type of dispute matters, e.g., general litigation, SOX audit, IP / Trade Secret • General Counsel and IT speak different languages
- 12. Execute: Collection, Preservation & Forensics • Collection: Retrieval of Data from Source – Impacts client employees, IT and GC – Will client IT perform work? BE CAREFUL - details matter • Forensics: Multiple meanings – Processing “missing”, “hidden” or “damaged” data – “Forensically sound” process preserve metadata as stored in source environment • Preservation: Copy of collected data stored securely (with outside counsel, consultant, etc.)
- 13. Execute: Counsel Phases • Process & Review – Process costs driven by volume of data for processing – Review costs are determined by application functionality (robust apps improve document targeting), productivity, and hourly cost for reviewer – Larger reviews justify robust platforms with higher productivity – Smaller reviews justify simpler internal tools with lower coordination • Produce – Unexpected outcomes are better managed with rolling productions
- 14. Trends • Increased enterprise management – Direct control at left hand of EDRM – Preservation increasingly a standard part of IT – Coordination of right hand of EDRM • Early Case Assessment lower up-front volumes • Reduce processing fees – lower volume & rate • Continued outsourcing of hosting & review
- 15. Questions? ?
- 16. Thank You! Stefan Adler, Director of Consulting H3 Consulting www.h3lpo.com stefan@h3lpo.com (415) 572-9659
Editor's Notes
- #3: ED evolving quickly. Connect to tradition litigation to provide context for current issues and discuss key issues for today.
- #4: Successful support of your client core business issues was always best practice. Now, ED is a core business issue.
- #9: Discuss using this to identify “yellow flags”
- #10: Verify with both GC and IT. Key emphasis on understanding idiosyncrasies and inaccessible data.
- #11: No one knows enough at the beginning of the process to finalize a plan. “Surprises” will occur.
- #15: What are core client needs? How can you align with these. Think about this before you have the new case. NOT saying be an eDiscovery expert - draw the line at understanding what you need to be an effective advocate.