eDiscovery 101: Navigating the Changes to the FRCP Inn of Court / LogicForce Implications to Your Litigation Practice

Agenda LogicForce’s Presenting Expert Implications of the changes to the FRCP Proportionality Impact of Technology, Big Data and Cyber Crime Preservation Considerations Practical Approach to Proportionality What Are We Actually Doing? How to build a budget

The Presenting Experts John Sweeney - President and COO John Sweeney is President of LogicForce Consulting and has led both publicly traded and privately held businesses to unprecedented financial success. As President of Thomson Reuters he built the Litigation Consulting Practice into the premiere advisory in the industry and is still considered a Top 100 legal consultant in the United States by Law Dragon and ALM. He has successfully led multidisciplinary teams in over 400 consulting engagements involving Legal Process Reengineering, eDiscovery, Litigation Management and Law Firm Growth Strategy. He is the author of The Amended FRCP Explained 2015 and has written numerous treatises for legal and technical publications over the last 25 years.

RULE 1: Scope and Purpose Changes to the FRCP RULE 1: Scope and Purpose Courts and Parties Share Responsibility for Effective Litigation Efficiency Cooperation RULE 16: Pretrial Conferences; Scheduling; Management  More Effective Scheduling Conferences Better Communication; Reduce delay and misunderstandings Shorter Time Limits; Meet Early & Often Discovery Requests Prior to Meet and Confer Discovery Plan Proposals for Preservation and Clawbacks

Changes to the FRCP RULE 34: Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes Specified Discovery Responses and Objections New Rule Eliminates Boilerplate Objections Objection Rules Raise Issues About the Necessity to Log Withheld Information RULE 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Uniform Standard for Sanctions When It Comes to Preservation, Good Faith and Reasonableness are Paramount

Changes to the FRCP: Proportionality RULE 26: Duty to Disclose; General Provisions; Governing Discovery Scope of Discovery and Proportionality Importance of the issues at stake Amount in controversy Parties’ relative access to relevant information Parties’ resources Importance of discovery in resolving the issues Whether the burden or expense outweighs its likely benefit Protective Orders for Costs Proportionality arguments are primarily around undue burden, expense, or delay from a party’s action or inaction   Expeditiously preserving this data through a litigation hold order indicates you are knowledgeable and in control to the court Rarely will a judge approve further discovery and only when opposing counsel can show that additional data from another source “may be of paramount importance to the case”

IT Trends The Digital Universe will grow from 3.2 Zetabytes today to 40 Zetabytes by 2020! - 85% of the growth will be derived from net new sources * Mobile, Social Media, Web 68% of your corporate clients are investing in infrastructure over the next 24 months Data management and Cyber Security have become a major focus for not only corporate IT departments but the General Counsel’s office as well

Cyber Security Trends Professional Services Firms Increasingly Targeted (Law Firms, CPA’s) ABA 25% of Firms Reported Breach in 2015; Up from 10% in 2012 Model Rule 1.6 of the ABA Code provides that attorneys shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure or access to confidential client information 5 Billion Internet Connected Devices by the End of 2015 LogicForce Consulting Cyber Audit Requests Growing at an Exponential Rate Ransomware (CryptoLocker, CryptoWall, etc) Spear Phishing Emails Rogue insiders Non encrypted communication “I am convinced that there are only two types of companies: those that have been hacked and those that will be. And even they are converging into one category: companies that have been hacked and will be hacked again.“ - Robert S. Mueller, III, Director Federal Bureau of Investigation

Preservation & Collections In 2014 Mobile Device Use Officially Surpassed Desktop Computer Use with Over 1.6 Billion Users Handset encryption becoming an issue for forensics Personal and corporate data segregation continues to be an issue in litigation Much of the data accessed through handsets actually resides on cloud servers Data preservation continues to be an issue because custodians very rarely want to be away from their device Mobile backups are frequently overlooked during preservation efforts Courts Are Begining to Require Social Media Evidence be Authenicated United States v. Vayner, - F.3d_, 2014 WL 3932227(2d Cir. Oct. 3, 2014) Cloud data is often overlook Confusion on where cloud data resides, who owns it and how it is accessed Cloud services often modify their platforms making preservation difficult Forensically Sound Data Preservation Data Sources Cloud data Mobile devices Social Media Remote Collections 3rd Party Records

Proportionality Considerations Know the time, effort and cost associated with the processes from preservation through  production in order to impress upon opposing counsel & the court any undue burden, expense or potential delay their request may cause Voice and document it early as judges are increasingly impervious to these arguments as cases progress Examples: Capturing duplicative data from backup tapes Use of TAR/Analytics Targeted collections v complete forensic images Lack of IT/Forensics manpower internally To substantiate any proportionality argument attorneys must: Gain a good working understanding of client systems and data Where is it stored (network servers, backup tapes, cloud, personal devices) Types of data implicated (eMail, structured data, texts, social media) Does the same data reside in different systems? Who are the Primary Custodians? How much data is involved? What are the scheduling orders?

Proportionality Considerations Opposing Counsel Considerations When, How, To Whom was litigation hold issued? What time frame is involved in the data preservation? What types of data? Where is the data stored? What are data governance policies? Remediation schedule vs actual practice? Current vs. legacy systems are on/off line? What are the credentials of the data collection team? Systems Credentials Forensics Credentials Methodologies

Consulting / Process / Technology Project Management Cyber Risk Management & IT Management Scope Preserve Data Collection Process Review TAR Analytics Host Production Present Consulting Process Technology

Budget considerations for eDiscovery Actual eDiscovery Matter : Primary Custodians - 25 Average data size per Custodian – 50GB Average amount of shared data per custodian – 10GB Total GB to be preserved and collected – 1500GB Average amount of documents per GB – 6000 Average expansion of data is 1.5 ( 1.5x 1500GB = 2250GB) Average processing cull rate – 80%  (450GB) 450 GB to be promoted into a hosted document review platform (Relativity/Xera) Applying Technology Assisted Review and Analytics for document review  - 90GB of produced data Cost of vendor supplied services varied by $515K between 3 service providers

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