RIM in the Age of E-Discovery 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

Records and Information Management (RIM)—Setting the Stage 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

Coordinating RIM Strategy with Litigation Preparedness 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

Corporate Strategy for Meeting Compliance Requirements 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

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

TOP TEN Enterprise Information Management and E-Discovery DONTs 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 Deny requests to search 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

The FRCP and Government 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 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 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 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 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 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.”

Best Practices Best Practices 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 Best Practices 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