E-Discovery and Document Retention

1. E-Discovery andDocument Retention Patrick W. Michael, Esq. Dinsmore & Shohl LLP 101 South Fifth Street Louisville, KY 40202 (502)581-8022 patrick.michael@dinslaw.com September 25, 2009

2. Document Retention & Electronic Discovery Model Processing Preservation Review Production Presentation Identification Records Management Collection Analysis Litigation Discovery Process Document Retention Trial

3. Electronic Document Retention I Should Just Keep Everything, Right?

4. Benefits of a Comprehensive DRP How we create & store information 93% of all business documents created electronically Only 30% printed to paper

5. Benefits of a Comprehensive DRP More efficient information management Streamline storage costs Spend less time and money managing data Greater ease in finding important info

6. Benefits of a Comprehensive DRP Streamline response to litigation or investigations Avoid settling defensible cases merely because of ESI problems

7. Creation & Implementation of DRP

8. Electronic Discovery Model Processing Preservation Review Production Presentation Identification Records Management Collection Analysis Document Retention

9. Creating the Data Map 1. Identification Where is it located? What do we have? 2. Preservation What do we have to keep? 3. Collection Where do we store it?

10. Identification – Where is it Located? Hardware & software Locations Legacy systems People working from home PDA’s & Cell Phones

11. Identification – What Do We Have? Identify all sources of data Structured Data Accounting & Financial Data Base Industry-based systems

12. Identification – What Do We Have? Semi-Structured Data E-Mail Unstructured Data User created documents Word Excel PowerPoint

13. Identification – What Do We Have? Unstructured Data Divide information Legal Business Everything Else

14. Preservation – What Do We Have To Keep? Legal Tax Records: 7 yrs. Audit Records: 7 yrs. Employment Records: statutory requirement Regulatory & Compliance: statutory requirement

15. Preservation – What Do We Have To Keep? Business Contracts: end date + SOL (15 yrs.) IP Records: life of patent + SOL Real estate: ownership + SOL Corporate Records: permanent Other categories – for litigation Design drawings Risk management Product Safety

16. Preservation – What Do We Have To Keep? Business E-Mails & Correspondence (by category): Contract IP Real Estate Everything Else E-Mails Correspondence

17. Top Ten Tips for Effective Electronic Data Management Make EDM a business initiative supported by corporate leadership Litigation Response Team Create a document review, retention & destruction policy(Document Retention Policy – DRP) Create DRP proceduresfor employees Create employee training program

18. Top Ten Tips for Effective Electronic Data Management Document all ways data can be transferred Keep records of all hardware & software Document the DRP Be aware of electronic “footprints” – delete does not always mean delete Cease document destruction policy at notice of lawsuit

19. E-Discovery Obligations

20. The Five Concepts: Requires production of electronicallystored information Early focus on discovery plans Early focus on privilege considerations Accessibility as key factor in production Specified formats for production

21. Lawsuit: The Initial Steps Reasonably Accessible Planning Report Initial Disclosures Production Meet & Confer Litigation Hold Privilege Documents Scheduling Order Response Team Outside Counsel Outside Counsel

22. Lawsuit: The Initial Steps Reasonably Accessible Planning Report Initial Disclosures Production Meet & Confer Litigation Hold Privilege Documents Scheduling Order Response Team

23. Litigation Hold & Preservation Obligations

24. LITIGATION HOLD Litigation is reasonably anticipated Lawyer sends “Litigation Hold” letter Parties required to preserverelevant data preservation of ESI that is reasonably accessible Must suspend document destruction/retention program

25. Response Team Document Retention Policy Flow Chart procedures Identify Technical person Identify computer systems Training Program

26. Assessment by Response Team Identify “key players” Individuals Work groups Departments Identify relevant time period

27. Assessment by Response Team Identify categories of information relevant to claims E-mail Financial data Calendars & contacts Database information Word processing documents

28. Assessment by Response Team Identify “systems” with relevant data Individual PCs/Laptops Network file servers PDAs/cell phones/ Blackberries Home computers Back-up systems

29. Implement Response Plan Advise key players of preservation obligation written notice to employees likely to have documents & ESI Describe the nature of claims Describe the ESI or other documents for preservation

30. Implement Response Plan Segregate & preserve relevant data Issue periodic reminders Record all decisions & rationales

31. Meet & Confer

32. Lawsuit: The Initial Steps Reasonably Accessible Planning Report Initial Disclosures Production Meet & Confer Litigation Hold Privilege Documents Scheduling Order Outside Counsel

33. MEET & CONFER Planning Report - Timing 90 days after the appearance of defendant OR 120 days after service of complaint

34. MEET & CONFER Planning Report - Content identification of electronically stored information the form for production Agreements for claims of privilege

35. What does your lawyer need to know: Respective computer systems Current and former Software Types of Data

36. What does your lawyer need to know: Document retention policies Archiving procedures Accessible and inaccessible data Production format

37. What does your lawyer need to know: Process for production Costallocation Actions of your Response Team

38. Reasonably Accessible ESI

39. Lawsuit: The Initial Steps Reasonably Accessible Planning Report Initial Disclosures Production Meet & Confer Litigation Hold Privilege Documents Scheduling Order

40. Examples of reasonably accessiblesources Individual PC’s/laptops Network file servers Accounting data servers E-mails servers PDA’s/cell phones/Blackberries

41. Examples of Not Reasonably Accessible sources Magnetic backup tapes Legacy data that is unintelligible Fragmented data after deletion

42. Sources that are not reasonably accessible No requirement to produce Must “identify” those sources Identify by “category or type”

43. Cost of Production Reasonably accessible data Responding party bears the cost Not reasonably accessible data Court determines who pays the costs

44. Attorney-Client Privilege & Trial Materials

45. Lawsuit: The Initial Steps Reasonably Accessible Planning Report Initial Disclosures Production Meet & Confer Litigation Hold Privilege Documents Scheduling Order

46. Electronic Discovery Model Processing Preservation Review Production Presentation Identification Records Management Collection Analysis Review for Privilege Documents

47. ATTORNEY-CLIENT PRIVILEGE Review each document before production time consuming costly Result = inadvertent release of ESI

48. FRE 502 - Attorney-Client Privilege & Work Product Inadvertent Disclosure – not a waiver of privilege Producing party took reasonable stepsto prevent disclosure Promptly took reasonable stepsto rectify error

49. “Claw-Back” Agreements Recipient must return or destroythe document realizes it contains privileged matters or upon request within a reasonable time

50. Form Of Production