RIM in the Age of E-Discovery

1. RIM in the Age of E-Discovery  FIRM Summer Program June 23, 2009 Christina Ayiotis, Esq., CRM Group Counsel– E-Discovery & Data Privacy, CSC Adjunct Professor, George Washington University

2. Records, Information, Data, Documents, Content, ESI, Web 2.0 • Full life-cycle management of information– from creation/receipt to final disposition • Proper and Thorough Destruction (Media Neutral) • Privacy Laws/E-Discovery Records and Information Management (RIM)—Setting the Stage

3. Definition of “Litigation Preparedness” • Consistent, Auditable RIM • Legal Hold Process/Management • Must be able to demonstrate preservation obligation is fulfilled • Records in the Ordinary Course • “Routine and Repetitive” Activity Coordinating RIM Strategy with Litigation Preparedness

4. Nationally and internationally • Global systems should be configured to account for cross-border restrictions • Protecting certain data types • Private data, export-controlled data • Incorporating compliance requirements at the front end Corporate Strategy for Meeting Compliance Requirements

5. Discovery is Discovery • Less Information = Less Cost to Review • Version Control- Best Evidence • Authenticity/ Trusted Time Stamps – Admissibility, SOX compliance, etc. Interplay between E-Discovery and Enterprise Information Management

6. System of Record • Deduplication • Hashing • Hold Management • Defensibility of Process • Collection (Forensically Sound) • Preservation (In Situ or on Secure Server) • Chain of Custody Interplay between E-Discovery and Enterprise Information Management

7. Have a RIM policy but don’t implement it • Plan a system without considering authenticity requirements • Maintain strict divisions between IT, RIM and Legal • Deploy systems without C&A process • Have a RIM program but don’t audit it TOP TEN Enterprise Information Management and E-Discovery DONTs

8. Deny requests to search E-Mail due to cost burden without justification • Claim privilege without justification • Produce records in any format you like • Refuse to meet and confer regarding ESI • Forget to use sampling as a way to validate keywords and limits costs TOP TEN Enterprise Information Management and E-Discovery DONTs

9. SEC v. Collins & Aikman Corp. (S.D.N.Y. Jan. 13, 2009), 2009 U.S. Dist. LEXIS 3367 • Whether identifying responsive documents that have been organized by the producing party invades the protection accorded to attorney work-product and how a government agency—acting in its investigative capacity– must respond to a request for the production of documents • SEC claimed compilation is attorney work product • Even if not work product, is how “maintained in the usual course of business” • Key to dichotomy is the assumption that in either case he documents would be organized– that records kept in the usual course of business would not be maintained in a haphazard fashion The FRCP and Government

10. SEC v. Collins & Aikman Corp. (S.D.N.Y. Jan. 13, 2009), 2009 U.S. Dist. LEXIS 3367 • Whether a government agency may unilaterally restrict the scope of its search based on an assertion of an “undue burden” on limited public resources • “Like any ordinary litigant, the Government must abide by the Federal Rules of Civil Procedure. It is not entitled to special consideration concerning the scope of discovery . . .” • “The calculus might differ where the Government must defend against allegations that may have little merit but can be enormously expensive to litigate.” • General scope– any nonprivileged matter relevant to any party’s claim or defense … relevant to the subject matter involved … reasonably calculated to lead to the discovery of admissible evidence The FRCP and Government

11. SEC v. Collins & Aikman Corp. (S.D.N.Y. Jan. 13, 2009), 2009 U.S. Dist. LEXIS 3367 • Whether a government agency may unilaterally restrict the scope of its search based on an assertion of an “undue burden” on limited public resources • “The SEC’s blanket refusal to negotiate a workable search protocol responsive to these requests is patently unreasonable.” • Sedona Conference Cooperation Proclamation • “[U]rges parties to work in a cooperative rather than an adversarial manner to resolve discovery issues in order to stem the ‘rising monetary costs’ of discovery disputes.” The FRCP and Government

12. SEC v. Collins & Aikman Corp. (S.D.N.Y. Jan. 13, 2009), 2009 U.S. Dist. LEXIS 3367 • How much information the Government must disclose in order to allow an adversary– and the court– to assess an objection based on the deliberative process privilege • “In order to qualify for the privilege, a document must be ‘predecisional’ and ‘deliberative.’” • SEC’s privilege log was deficient • SEC must submit documents for in camera review with a short memorandum explaining why each document is entitled to protection The FRCP and Government

13. SEC v. Collins & Aikman Corp. (S.D.N.Y. Jan. 13, 2009), 2009 U.S. Dist. LEXIS 3367 • Whether a government agency may unilaterally exclude its own e-mail from document production on the ground that most– but not all– will be privileged • “It is now well-established that electronically stored information is subject to discovery.” • “The concept of sampling to test both the cost and the yield is now part of the mainstream approach to electronic discovery.” • Parties are “directed to meet and attempt to negotiate a reasonable search protocol.” The FRCP and Government

14. Relationship between RIM and Legal • Regular open communication • Strategize before systems are set up to ensure authenticity of content and ease of reproducing it • Work with IT to calculate true cost of storage (incorporate cost per gigabyte of attorney review time) Best Practices

15. Collaborate, collaborate, collaborate • Communicate, communicate, communicate • Train, train, train • Audit, Audit, Audit • Judge Facciola will not consider a RIM program legitimate unless it is implemented and audited Best Practices