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LTNY 2010: Trends & Impressions

LTNY 2010: Trends & Impressions. February 17, 2010. OVERALL THEMES. Cost reduction: bringing it in-house Catering to Corporations “To the left, to the left…” Preservation Legal Hold Early Case Assessment Cloud computing/social networking Sharepoint. Cost Reduction Take Aways.

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LTNY 2010: Trends & Impressions

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  1. LTNY 2010: Trends & Impressions February 17, 2010

  2. OVERALL THEMES • Cost reduction: bringing it in-house • Catering to Corporations • “To the left, to the left…” • Preservation • Legal Hold • Early Case Assessment • Cloud computing/social networking • Sharepoint

  3. Cost Reduction Take Aways Bring it in-house Cooperate Manage the process / minimize the front end Records management Preservation Collection Filtering Employ project management principles Maintain control of your ESI Be able to audit or otherwise defend work product Consider alternative licensing or pricing structures

  4. Cost Reduction Take Aways(Cont’d.) 10 Commandments of eDiscovery* Thou shalt exhibit competence and avoid pleading technological ignorance. Thou shalt cooperate and be transparent. Thou shalt comply with the “duty to preserve evidence.” Thou shalt take meet and confer conferences seriously. Thou shalt educate thyself (and thine outside counsel) as to thine systems and what is and is not feasible. Thou shalt not misrepresent thine systems capabilities or lack thereof. Thou shalt identify “inaccessible” data sources during discovery. Thou shalt cooperate with counsel to conduct search terms. Thou shalt remember Rules And 26 (g) regarding cost/proportionality Thou shalt be wary of eDiscovery sanctions if these commandments are ignored. *Andrew M. Cohen, GM or EMC eDiscovery & Moderator of Super Session “The eDiscovery Truth from the Judges, Attorneys, General Counsel & IT Professionals.”

  5. Legal Hold Take Aways Management of data andprocess Defensible process andresults Auditable Activity

  6. Early Case Assessment Take Aways Defining ECA: Process management or technology? New or existing stage in the EDRM?

  7. CLOUD COMPUTING TAKEAWAYS Case Law - Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities LLC, et al., Amended Opinion, Case No. 05-CV-9016 (S.D. NY Jan. 15, 2010). Judge Sheinlein outlines comprehensive guidelines on preservation and creating a legal duty to issue a written legal hold. - Flagg v. City of Detroit (Flagg II), 2008 U.S. Dist. Lexis 64735 (E.D. Mich. Aug. 22, 2008). The city retained control of the text messages stored by third party provider and can’t use the Stored Information Act as a shield for discovery. • Adams v. Dell, 2009 WL 910801 (D. Utah March 30, 2009). While a party may design its information management practices to suit its business purposes, one of those business purposes must be accountability to third parties. The court held that the defendant’s practice of having employees archive email did not establish a “good-faith” nature of the defendant’s data management practices. Regulations - SEC Rule 17A-4: Broker-dealer records must be stored in an non-rewriteable and non-erasable format. - FINRA Reg. Notice 10-06: Governing the use of social media websites for business purposes. Firms permitting the use of social media sites must establish written procedures and systems that are reasonably designed to ensure compliance with FINRA communications rules. Issues - Security - Access (Control) - Lack of interoperability standards - Performance - Cost

  8. Items of Concern re Cloud Computing* • Preservation, retention and disposal of ESI • Control of Access to ESI • Ability to Enforce a Legal Hold • Ensure the continued use of ESI • Location of cloud • Ownership of ESI • Assignment of Contract • Auditable Facility • Ability to Move Data • Treatment of ESI in Response to Subpoena • Business Continuity • Disaster Recover *as provided by Wayne Matus, Pillsbury Ediscovery Partner “Taking Compliance and eDiscovery to the Cloud.”

  9. Impressions • Seminars/participants more advanced in the understanding of technology. • Watch for lower pricing of commodity work. • More consultative services. • Corporations moving to control the process. • Consolidation of service providers. • Integration across all phases of the EDRM but not necessarily one “easy button.”

  10. Panel: Anne Costello, GrippoElden LLC Therese Carey, kCura Corporation Brennan Kelly, Inference Corporation Lee Neubecker, Forensicon Moderator: Marco Nasca, CALSM V.P. of Programming (Iris Data Services)

  11. Save the date: The next CALSM lunch will be April 21, 2010.

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