Succeeding at eDiscovery What you need to know

1. Succeeding at eDiscoveryWhat you need to know Department of Executive Services Records and Licensing Services Division Archives and Records Management Section Gregory Trosset – ERM Project Program Manager

2. Why is it importantWhat you need to know • Federal Rules of Civil Procedure (revised) • Parties need to discuss (early on) the discovery aspects of ESI1, provide for timely production (in native format), preserve ESI with metadata intact, and provide for a verifiable chain of custody • Successful eDiscovery starts with good records management • Provide staff with a way to comply (tools) • Set expectations (policy) • Communicate (education) • Conduct oversight (compliance)

3. The Records Management ShiftWhat you need to know Today Records created electronically – 90% Enterprise data growth over the next five years – 650% 2 High User Participation Time 60’s Low Managed Unmanaged Content Managed - Well defined, centralized control, structured schema, few participants Unmanaged - Undefined, decentralized, flexible schema, many participants

4. AnalysisWhat you need to know • Are we ready? • 14% - Organizations consistently following their retention schedules • 55% - Organizations addressing retention for email and Web 2.0 • 56% - Organizations with a formal discovery plan • Most organizations.. • Are not retaining everything they should • Lack policies and procedures • Are at risk for significant sanctions/costs 2007 Electronic Records Management Survey – Cohasset Associates

5. The costs of not being readyWhat you need to know • Discovery • 35% - eDiscovery portion of the total cost of litigation 3 • $1,800 to $2,500 – Legal review cost per gigabyte 4 • $11M – DuPont study over 5 years (50% of record reviewed needlessly) 5 • Sanctions • $1.45B – Coleman Holdings v. Morgan Stanley (inability to produce records) 6 • $29M – Zubulake v. UBS Warburg (Spoliation presumption) 7 • $6.2M – Murphy Oil USA v. Fluor Daniel (failure to follow policy) 8 • “State orders City Hall computers secured in email dispute” 9 • King County agrees to pay $255,000 to settle public records lawsuit” 10

6. ToolsWhat you need to know • ERMS – Electronic Records Management System • Not document management • Compliance tool • Complex retention requirements (ie. Govt.) • DoD 5015.2 (defacto standard) • Features • Categories (what to keep) • Standardization (category level) • Built-in retention policies (how long) • Auto-profile (simplify end user interaction) • Metadata preservation • Auditing • Chain of custody & authenticity (trustworthy) • Rich security (access controls) • De-duplication (control copies)

7. Tools (cont.) What you need to know • Questions and cautions • Upfront costs (pay me now) • Scope (electronic, paper, imaging, web) • DM integration • DoD Certification (do you really need this?) • Executive support • Ongoing support • Significant lead time to deploy • File plan development • Big bucket approach (keep it simple for end users) • End-users (must be in the equation)

8. Other tools – Use with caution What you need to know • Automated policy (auto-delete) • Ignores retention • All records are not created equal • Lost institutional knowledge • Archiving tools (pay me later) • Keep it all • If you have it, you may have to produce it (review $$) • Storage acquisition $$ are decreasing as TCO continues to rise. [11] • Ignores retention (migration issues) • Disaster recovery tapes • Allow users to manage retention (“just in case”) • Allow pst files to proliferate (personal archives)

9. Policies What you need to know • Email Management • Appropriate use (we all have this) • It’s a record (but not a record series) • Provide guidelines (How to manage) • PST issues • Former employees (the black hole) • Web 2.0 • It may be a record • Challenges • Ownership • Control • Retention • Your staff are using it • Provide guidance • Encourage vs. discourage • Insert yourself into the discussion

10. Policies (cont.) What you need to know • Legal Hold • Define roles • Everyone • Communicate • Suspend destruction • Compile • Attorney • Describe, Issue, Remove • Periodic review/reminder communications • Coordinate • Department head/delegate • Internal procedures • Communicate hold • Document (everything) • Compile index • Coordinate • Media neutral • Native format (preferred)

11. Policies (cont.) What you need to know • Records Management • What should you be retaining? • How long should you keep it? • Be consistent (follow your own policy) • Document what you do (ie destruction) • Replication (primary/secondary copies) • Metadata issues (native format) • Media neutral

12. Policy considerations What you need to know • Involve the right players • Records Management • IT • Legal • Risk Management • End users? • It must be practical • Employees must have the right tool to comply • No policy could be better then a unenforceable policy • Shouldn’t negatively impact line of business • It must be consistently employed • Media neutrality • Everyone must play

13. Education & Oversight What you need to know • Education • Senior Management • Informed decision-making • Champion for your program • New employee (more then just the 5 minute sound bite) • Ongoing (reinforce) • Brownbag lunches • Website • Quick tips • Oversight • Performance appraisals • Hold employees accountable • Service Level Agreement • On-demand audits • When is it appropriate • Don’t become the records police

14. What is King County doing • Scope • Five year project • Electronic, paper, imaging, web • $4.9M budget • Approximately 9,000 end-users • Phase I – Planning (2006 & 2007) • Business case • Educate senior leadership, identify sponsor, funding, etc. • RFP and selection process • Phase II – Pilot for eRecords (2008) • Human Resources Division (75 users) • Installation, configuration, training curriculum, etc.. • Identify policy needs

15. What is King County doing (cont.) • Phase IIIa – Deployment and additional modules (2009) • Configure and deploy eRecords (Core agencies) • 800 end-users • Implement Physical Records module • Policy development • Phase IIIb – Deployment and additional modules (2010) • Continue eRecords deployment (Core agencies) • 1,200 end-users • Implement Digital Imaging • Implement Web Records management • Phase IIIc – Common Records deployment (2010 & 2011) • Rapidly deploy eRecords countywide (existing categories) • 7,000 users • Address 70% of records needs (by volume) • Limited development work • Production support (2011 and beyond) • Address remaining categories on an ongoing basis

16. Summary • Success at eDiscovery • Starts with RM • Is a collaborative effort • Policy and tools go hand-in-hand • Upfront investments can pay off down the road • Explore all options, but be cautious Records Management

17. Gregory A. Trosset Electronic Records Project Manager Archives and Records Management Records and Licensing Services Division Department of Executive Services GBB-ES-0210 416 Occidental Avenue South, Suite 210 206-296-3488 Seattle, WA 98104-2836 Fax 206-205-1067 gregory.trosset@kingcounty.gov www.kingcounty.gov Thank You Questions?

18. Appendix 1 – ESI = Electronically Stored Information 2 – Top 10 IT Management trends for the next five years – Gartner Group Inc., Computerworld, Oct 2009 3 – “Minimizing the Pain of eDiscovery with a Proactive Strategy” – Osterman Research, Aug 2009 4 – Brian Dirking and Raghu R. Kodali, “Strategies for Preparing for E-Discovery”, The Information Management Journal, May/June 2008 5 – Julie Gable, “What CIO’s Should Know About Records,” CIO Decisions, November 2005 6 – Coleman Holdings, Inc. v. Morgan Stanley & Co. 7 – Zubulake v. UBS Warburg 8 – Murphy Oil v. Fluor Daniel 9 – The Boston Globe, Sep 14, 2009 10 – King County, WA v. Sharkansky 11 – Alan Pelz-Sharpe “Storage costs for ECM and DAM Systems” CMSWatch, Aug 13 & 24, 2009

19. Reasons for compliance California Records Management Act Government Codes 14740-14774 As used in this chapter "record(s)" means all paper, maps, exhibits, magnetic or paper tapes, photographic films and prints, and other documents produced, received, owned or used by an agency, regardless of media, physical form or characteristics….” California Public Records Act (PRA) "Public Records" includes every means of recording or communication or representation: any writing, photograph, drawing, sound or symbol, whether paper, film, magnetic media "computer" data or other document -- which relates to the public business, and which is prepared, owned, used, or retained by the agency. The Federal Rules of Civil Procedure Parties need to discuss (early on) the discovery aspects of ESI1, provide for timely production (in native format), preserve ESI with metadata intact, and provide for a verifiable chain of custody.