Proactive Records Management and eDiscovery

1. Proactive Records Management and eDiscovery Chicago SharePoint User Group March 18, 2010 Bruce A. Radke, Esq. Vedder Price P.C.

2. Game Changing eDiscovery Scenario Zubulake vs. UBS Warburg

3. Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al., No. 05 Civ. 9016, 2010 WL 184312 (S.D. N.Y. Jan. 15, 2010) • Did not involve “any examples of litigants purposefully destroying evidence” • Failure to timely institute written litigation holds constituted gross negligence • “Careless and indifferent” preservation and collections efforts warranted the imposition of severe sanctions

4. continued Pension Committee • To avoid a finding of gross negligence, a litigant must, at a minimum: • Issue a written litigation hold • Identify the key players and ensure that their electronic and paper records are preserved • Cease the deletion of email and otherwise preserve the records of former employees that are in a party’s possession, custody, or control • Preserve backup tapes when they are the sole source of relevant information or when they relate to key players, if the relevant information maintained by those players is not obtainable from readily accessible sources

5. Phillip M. Adams & Assoc., LLC v. Dell, 621 F. Supp. 2d 1173 (D. Utah 2009) • Sanctioned a party for its “questionable” information management practices • Party lacked records retention program and technology to manage its records • The absence of a coherent document retention policy is a pertinent factor to consider when evaluating sanctions • “Information management policies are not a dark or novel art.”

6. The eDiscovery Challenge

7. What Has Been theTraditional Approach?

8. Electronic Discovery Reference Model • Standards and guidelines in the electronic discovery market • Common, flexible and extensible framework for the development, selection, evaluation and use of electronic discovery productsand services • May 2005: The Electronic Discovery Reference Model (EDRM)was developed • f

9. Why is This Challenge So Significant? • The cost of accessing ESI across the enterpriseis significant – the more dispersed – the more expensive • Needless retention of ESI increases the size of the “haystack” • Reduces sound “try or settle” decision making • The inability to produce relevant information may lead to sanctions or claims of “spoliation” of evidence • Spoliation refers to “the destruction or significant alteration of evidence, or the failure to preserve for another’s use as evidence in pending or reasonably foreseeable litigation”

10. Records Management Is Important to eDiscovery • Good Records Management is Key to Good eDiscovery and Evidence Management • Records management is foundation upon which your eDiscovery house is built • Demonstrates good faith disposal of records in accordance with established retention schedules • Reduces volume of business records subject to discovery – lowering eDiscovery costs – while meeting legal and business requirements, in a consistent and uniform manner • Allows for early case assessment • Minimizes litigation and compliance risks • Sword and Shield Goal: Move from a tactical, ad hoc and last minute eDiscovery response to strategic, uniform and proactive approach to records management to meet current and future regulatory and eDiscovery obligations.

11. 5 Immediate Steps to Begin to Eat the Elephant • Step 1: Update, Revise and Implement a Defensible Records Management Program • Extend to existing and evolving forms of ESI • Must be capable of being implemented and easily followed • Regular review/revision for changes in law, technology and business operations • Training, enforcement and periodic auditing of compliance

12. 5 Immediate Steps to Begin to Eat the Elephant • Step 2: Develop E-Mail Retention and Disposal Policy • Distinguishes between Record E‑Mail vs. Non-Record E-Mail • Manage and dispose Record E-Mail retained in accordance with overall record retention schedules • Clear and specific guidance on e-mail usage and management • Back-up tapes for disaster recovery purposes only

13. 5 Immediate Steps to Begin to Eat the Elephant • Step 3: Implement Comprehensive Legal Hold/Disposal Suspension Procedure • Integral component of overall records management program • Defines when preservation obligation is triggered • Mechanism for reporting potential litigation • Who has authority to issue hold • Means for communicating hold • Periodic reminders, tracking and auditing compliance • Procedure for releasing holds

14. 5 Immediate Steps to Begin to Eat the Elephant • Step 4: eDiscovery Response Plan/Gap Assessment • Triage and strategize efforts • Initial focus on “high-risk” records • eDiscovery

15. 5 Immediate Steps to Begin to Eat the Elephant • Step 5: Software Tools to Implement Records Management/eDiscovery Policies and Procedures

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17. Proactive Records Management and eDiscovery Chicago SharePoint User Group March 18, 2010 Bruce A. Radke, Esq. Vedder Price P.C.