Allvision Computing By Legal For Legal 2007 Litigation Readiness Andrew Haslam

Allvision Computing Page 2 Agenda What is Litigation Readiness and why is it so important now? What is Litigation Readiness and why is it so important now? What are global corporations doing today in response? What are global corporations doing today in response? How has this environment impacted US law firms? How has this environment impacted US law firms? How has this environment impacted UK firms to date? How has this environment impacted UK firms to date? How might UK firms be impacted in the future? How might UK firms be impacted in the future?

Allvision Computing 1. Exponential Volume 2. Metadata 3. Unknowns  Cost and risk in determining, “Have we produced what we need to?” Challenges of Electronic Data

Allvision Computing Drivers in electronic discovery Rules New laws, i.e. changes to the CPR, FRCP New laws, i.e. changes to the CPR, FRCPComplexity Increased complexity and dependency Increased complexity and dependency Increased use of computer systems Increased use of computer systems Increased digital-only existence of data Increased digital-only existence of dataVolumes Bigger storage volumes Bigger storage volumes

Allvision Computing Company said they located and searched all relevant backup tapes, but had not.  $1.4 billion in damages, adverse inference instruction, default judgment Coleman v. Morgan Stanley Employees deleted relevant , IT continued to rotate and overwrite backup tapes.  $29 million damages, adverse inference (in ordinary employment case) Zubulake v. UBS Warburg Executives did not print subject to litigation hold, IT continued 60-day purge  $2.75 million fine, executives precluded from testifying US v. Philip Morris USA Trends in US Courts

Allvision Computing What is Litigation Readiness “ A better fence at the top of the cliff ” “ A better fence at the top of the cliff ” Sound RIM as a good efficient business practice Sound RIM as a good efficient business practice Becoming essential for certain firms i.e. SOX, FSA, Basel 2 and MiFID Becoming essential for certain firms i.e. SOX, FSA, Basel 2 and MiFID May be part of due diligence in a M&A situation May be part of due diligence in a M&A situation

Allvision Computing Why Litigation Readiness? Regulatory and Compliance drivers Regulatory and Compliance drivers Litigation issues Litigation issues Data Protection problems Data Protection problems General information management “ Best Practice" General information management “ Best Practice"

Allvision Computing 1. Profile your systems and data 2. Reduce the pool of backup/archival media 3. Extend records/retention policy to ESI 4. Establish “ Preserve Now ” team and process 5. Streamline litigation hold process 6. Manage outside counsel and vendors 7. Litigation Process “ Outsourcing ” Changing the Corporate Architecture Corporate Strategies

Allvision Computing Be first to put a reasonable plan in place, to your advantage, then cost shift Be first to put a reasonable plan in place, to your advantage, then cost shift Issue litigation hold quickly, narrowly, and often Issue litigation hold quickly, narrowly, and often Proactively involve IT at a level that gets results, pay attention to spoliation via maintenance processes/ programs Proactively involve IT at a level that gets results, pay attention to spoliation via maintenance processes/ programs Preserve quickly (‘anticipation’ of lawsuit), on a rolling basis Preserve quickly (‘anticipation’ of lawsuit), on a rolling basis Preserve metadata Preserve metadata Collect accessible data, broadly, cull later Collect accessible data, broadly, cull later Sample to reduce population of documents sent to review Sample to reduce population of documents sent to review ‘Conceptual’ document review tools ‘Conceptual’ document review tools Emerging “best practices”

Allvision Computing Reactive/technologyProactive Original Volume (and Cost) Scope Preserve Gather ProcessHostReviewPresent Litigation Readiness Efficiencies in e-disclosure

Allvision Computing 1. Understand the details of client IT systems Think global Think global Scope of data – locations, volume, timeframe, retention Scope of data – locations, volume, timeframe, retention Preservation options, and cost to access, cull and produce Preservation options, and cost to access, cull and produce 2. Preserve data/metadata upon ‘ anticipation ’ Employee litigation holds should be robust, but may be insufficient. Employee litigation holds should be robust, but may be insufficient. IT should proactively preserve from a system standpoint IT should proactively preserve from a system standpoint Metadata, backup tapes, what is reasonable? Metadata, backup tapes, what is reasonable? 3. Develop ‘ CMC ’ strategy for negotiating Defensibility of preservation Defensibility of preservation Accessibility/inaccessibility for collection Accessibility/inaccessibility for collection Timeframe/format of production Timeframe/format of production The Challenges

Allvision Computing How has this environment impacted UK firms to date? How has this environment impacted UK firms to date? How might UK firms be impacted in the future? How might UK firms be impacted in the future? So What?

Allvision Computing Law firms and EDD Respond to client requests Respond to client requests Client is under investigation or subject to litigation Client is under investigation or subject to litigation Client requests back history Client requests back history Client requests destruction or return of materials Client requests destruction or return of materials Respond to request from regulatory body or government Respond to request from regulatory body or government Respond to a Data Access Information Request Respond to a Data Access Information Request Comply with a protective order issued by a court prohibiting sharing of information within the firm Comply with a protective order issued by a court prohibiting sharing of information within the firm Preparing to defend itself against action brought by client or employee Preparing to defend itself against action brought by client or employee Reasonable expectation of litigation (US) Reasonable expectation of litigation (US)

Allvision Computing What might Litigation Readiness involve? Records Management policy, procedures and documentation Records Management policy, procedures and documentation Demonstrable proof that IT information management policies and procedures align with and enforce RM policy Demonstrable proof that IT information management policies and procedures align with and enforce RM policy Defensible litigation hold processes, procedures and documentation Defensible litigation hold processes, procedures and documentation

Allvision Computing What might Litigation Readiness involve? Defensible preservation processes, procedures and documentation (paper and electronic information) Defensible preservation processes, procedures and documentation (paper and electronic information) Up-to-date inventory of technology systems Up-to-date inventory of technology systems Up-to-date data map Up-to-date data map Methods to collect and produce required materials Methods to collect and produce required materials

Allvision Computing What Challenges Might a Firm Face? Getting management support in advance Getting management support in advance Firm’s believe they are immune until an event occurs Firm’s believe they are immune until an event occurs Records management policies and procedures are notoriously hard for firms to embrace Records management policies and procedures are notoriously hard for firms to embrace

Allvision Computing What Challenges Might a Firm Face? Balancing interests of competing stakeholders Balancing interests of competing stakeholders Lawyers want to keep everything “forever” Lawyers want to keep everything “forever” Firm as a business needs to routinely dispose of information in accordance with RM policy in order to be prepared to defend itself Firm as a business needs to routinely dispose of information in accordance with RM policy in order to be prepared to defend itself Client wants firm to maintain information in accordance with the client’s interests Client wants firm to maintain information in accordance with the client’s interests Establishing effective communications between IT and legal Establishing effective communications between IT and legal

Allvision Computing What Challenges Might a Firm Face? Doing the work Doing the work Most IT systems and procedures are designed for business continuity and recovery, not disclosure activities Most IT systems and procedures are designed for business continuity and recovery, not disclosure activities Data privacy rules and regulations can complicate work substantially Data privacy rules and regulations can complicate work substantially People mix personal and business information and you might have to uncouple them People mix personal and business information and you might have to uncouple them Work efforts to preserve, collect and product can be labour intensive for IT if not planned for in advance Work efforts to preserve, collect and product can be labour intensive for IT if not planned for in advance

Allvision Computing What Challenges Might a Firm Face? Covering the costs—which can be enormous Covering the costs—which can be enormous Identifying and capturing costs (hard and soft) Identifying and capturing costs (hard and soft) Recovering costs from clients Recovering costs from clients Absorbing unrecoverable costs in the firm’s budget Absorbing unrecoverable costs in the firm’s budget

Allvision Computing What actions should be on your “Strategic To Do’s” list? Create a policy dialogue with firm’s leadership Create a policy dialogue with firm’s leadership Understand potential risks and costs of doing nothing Understand potential risks and costs of doing nothing Present plan for E-Disclosure preparedness and seek support Present plan for E-Disclosure preparedness and seek support Make sure IT’s operational procedures fit with the firm’s business goals for e-Disclosure preparedness Make sure IT’s operational procedures fit with the firm’s business goals for e-Disclosure preparedness

Allvision Computing What actions should be on your “Strategic To Do’s” list? Keep pace with evolving standards and changes in environment Keep pace with evolving standards and changes in environment “You will be measured today by tomorrow’s standards” “You will be measured today by tomorrow’s standards” Enforce records retention/destruction policy on electronic information Enforce records retention/destruction policy on electronic information Implement a comprehensive matter centric computing environment, if possible Implement a comprehensive matter centric computing environment, if possible

Allvision Computing What items should be on your “Tactical To Do’s” list? Establish a formal litigation hold process Establish a formal litigation hold process Understand the high risks of and manage aggressively Understand the high risks of and manage aggressively Set shortest possible retention period for un-filed e- mails and enforce automated deletion Set shortest possible retention period for un-filed e- mails and enforce automated deletion Ensure backup procedures are aligned with retention rules Ensure backup procedures are aligned with retention rules Understand and mitigate risks of users creating personal archive files Understand and mitigate risks of users creating personal archive files

Allvision Computing What items should be on your “Tactical To Do’s” list? Maintain historical and current inventories of data, media, and user access rights Maintain historical and current inventories of data, media, and user access rights Establish operational policies and procedures to keep them current Establish operational policies and procedures to keep them current Distinguish between reasonably accessible and inaccessible locations Distinguish between reasonably accessible and inaccessible locations Maintain historical and current inventories of technology infrastructure Maintain historical and current inventories of technology infrastructure

Allvision Computing Questions?