We Must Produce! Presented by: Terrence Coan, CRM – Director, RM Solution Line Lead Baker Robbins & Company Charlene Wacenske – Firmwide Records Manager Morrison & Forrester LLP Scott Christensen – Director, Information Services Bell Boyd & Lloyd LLP

Agenda Introductions ESI – Electronically Stored Information Discovery steps and best practices Partnership between Records Management and IT Two firm’s perspectives

Intersection of RM and Discovery

What is ESI and Why is it Important? ESI is now the dominant method of storing information ESI is different than paper Persistent (“delete” is a misnomer) Dynamic (susceptible to changes in ways predictable and mysterious) Ubiquitous (copies can exist in many places at once: servers, , PDA’s, backup media, hard drives, portable USB drives, iPods, phones, cameras, almost anywhere on the Internet, and more!) Difficult to establish office of record or custodian The volume is staggering – processing can be extremely costly 1GB = 75,000 pages (30 boxes) 100GB = 7.5 million pages (3,000 boxes) 1TB = 1,000GB = 75 million pages (30,000 boxes)

Clients are Paying Attention to ESI Heightened compliance requirements Changes to FRCP Sarbanes-Oxley Regulatory agency requirements Security, privacy, confidentiality obligations Potentially dramatic increase in costs Data retention and preservation Litigation readiness Litigation management Potential for sanctions Business interruption issues

Attorney/Client Privilege Clients are increasing waving privilege Post Enron - era of transparency SEC regulations Law firm client records are… Now “front and center” Increasingly relevant in client document production

A Duty to Preserve When does the duty to preserve arise? “Reasonable anticipation” of litigation Will always depend on the specific circumstances of the case A plaintiff’s duty to preserve may begin earlier than the defendant’s An event will trigger notice to the company that litigation can reasonably be anticipated Whether or not the event constitutes notice to the company will depend on the situation The moment at which litigation is reasonably anticipated will depend on the facts of the case

Timeline ? ? ? ? ? Duty to Preserve Date varies based on triggering event Days Complaint/Denial to Dismiss 16(b) Conference - Access Systems/Data - Preserve Data - Create Discovery Plan < 14 Days > 21 Days Discovery Initial Disclosures 26(f) Meet & Confer Amendments to Federal Rules of Civil Procedures impose even more time pressure on e-data discovery issues This diagram is for illustrative purposes only. CHECK LOCAL RULES

Issuing the Hold Notice should provide enough specificity that recipients understand the scope Notice should be sent by the general counsel to relevant lawyers and staff The notice should make clear that compliance is mandatory The firm’s records management and technology teams should jointly participate in holds A point person should be designated to respond to questions and to provide additional information

Managing the Hold Document all preservation efforts Regular reminders and follow-up efforts should be undertaken Multiple litigation holds require coordination It is important to release a hold properly and at the appropriate time

Collection – Data Integrity is Essential Preparation and planning are key to a successful collection Defensible and forensically sound procedures must be followed to collect ESI Consistent methods for extraction of materials from native systems Meticulous recordkeeping is required throughout the process Track collection details using collection & chain of custody logs Identify and track potential authenticating witnesses The log should be sufficiently clear that anyone can assume responsibility for the continuing collection of the documents/data Each document/data file must be treated as critical to ensure it can be used at trial

Process & Review The human element of the review can be the most complicated and costly aspect The logistics of organizing and managing the review are challenging and therefore time- consuming and expensive Document production Online review Attorney review time is approximately 80% of the cost of online reviews

Winnowing the Collection Body of Potential Documents & Data Potentially Relevant Issue Relevant Potentially Responsive Produced  , IM, Bloomberg  Network Shares and Hard Drives  Documents  Data  collected  Documents/Data Collected  Forensic Data collected  Materials for Outside Counsel to Review  Potentially includes confidential and/or privileged materials  Annotated and Redacted Collections  Agreed-Upon Production Formats  Reduced Sets of Materials for Review; Culled through Automation  Early Issue Reviewed Documents/Data  Legal Hold  archiving  Declaration of business records  Custodian filtering (e.g. key player’s mailbox)  De-duplication & file type culling  Keyword culling e.g. “option grant”)  Early issue review  Regulatory production  Document processing (PDF, TIFF)  Issue coding (hot documents)  Privilege identification  Document annotation  Redaction  Bulk printing/disk creation  Trial preparation

Production Format of the production Digital or hardcopy If digital on what media If the materials are simply leaving the firm (vs. a formal production) does the firm retain copies? What documentation of the release is retained Formal productions Lateral attorney transfers

Two Firm’s Perspectives How to gather ESI Where to store and manage ESI for attorney review How to package and produce Tools in the arsenal

Morrison & Forrester LLP – MailPort

Bell Boyd & Lloyd LLP - iExtract

We Must Produce! Discussion? Terrence Coan, CRM – Charlene Wacenske – Scott Christensen –