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eDiscovery 911: Building a discovery response team for effective legal hold management 26 August 2008 Association of Corporate Counsel

Page 3 Gartner predicts that through 2010, companies that have not adopted formal e- discovery processes will spend twice as much on gathering and producing documents as they will on legal services Recent AIIM survey % of organizations with 10,000 – 50,000 employees have a formal system for preservation and legal holds in place More than 51% have not identified anyone to testify regarding electronically stored information Executive considerations on discovery response planning initiatives … Market Insights: Discovery Response

Page 4 Legal Considerations and Ramifications: Duty Date Determinations Duty to preserve based in statute or regulation Duty to preserve after service of process or notice of investigation Duty because company “reasonably anticipates litigation”

Page 5 Legal Considerations and Ramifications: Repercussions of Mistakes Can Be Severe Spoliation or adverse inference instructions Obstruction of justice charges Monetary sanctions Entry of an adverse judgment Even if these are avoided, loss of credibility and trust

Page 6 Discovery Response Programs A framework of strategies, policies, plans and methodologies Enables a company to define and plan for projects that support the company’s cost- effective and efficient compliance with its discovery obligations Implemented by a Discovery Response Team

Page 7 The courts and regulators are raising the bar… Higher expectations when it comes to providing evidence (records) Courts - and the revised Federal Rules of Civil Procedure - assume that rational and effective internal procedures are being followed Shorter period of time to respond to document requests No excuses for missing records or incomplete responses Raised expectations around the systems to retain and produce responsive records Response Teams: Why Are They Necessary?

Page 8 Saves time and money Decisions made in the heat of the moment will be second guessed later Not only paper documents, but electronically stored information (ESI) must be preserved Proper handling worth less if not accompanied by proper documentation Legal Considerations and Ramifications: Advantages of a Response Team

Page 9 Establishing a Framework for Governance: An Example

Page 10 Response Teams: Building the Team GCO/Legal Develop scope of the matter, oversee legal hold project, assist in identification of relevant ESI, supervise outside counsel Records Management Assist with ESI mapping, define data retention policies and schedules Program Management Document, supervise and coordinate all elements of response team and plan, oversee third party vendors, work with Compliance for plan improvements IT & Other Departments Assist with ESI mapping, implement legal holds, assist in maintaining data retention policies and schedules, assist with any document collection and/or productions, have information relevant to identification of custodians and ESI Business Unit Leaders Provide insight on the BU structure, operations and component business processes to identify potentially relevant information Compliance Perform internal audits, evaluate discovery response plans for areas to improve

Page 11 The Development of a Discovery Response Program Record Coordinators Office and Officer of Record Systems of Record Implement Hold Plan Identify Relevant Data/Record Types Identify Custodians Update Classification Scheme Train Records Coordinators Update Retention Schedule Update Data Maps Train 30(b)(6) Witnesses Review Tools Revise Response Plan Classification Scheme Retention Schedule Continuous Improvement Execution Discovery Event

Page 12 Legal Considerations and Ramifications: The Scope of ESI Ask yourself: Without a team ready in advance, could my company timely lock down documents in all formats and locations? Even if so, would the documentation of those efforts withstand scrutiny? ESI includes not only the expected , word processing files, and spreadsheets ESI also includes instant messages, text messages, voice mails, PowerPoint or other presentation slides, pictures, and web pages – but that’s not all! ESI includes the metadata for all of the above For multinational corporations, the paper documents and ESI may exist in foreign lands and languages, with attendant cultural, language, and logistical considerations And it’s not only in file drawers anymore: it’s on phone machines (desktop and cell); laptops; Blackberries, Palms and other hand held devices; hard drives (desktop and free standing); CDs; and thumb drives

Page 13 What Tools Does the Discovery Response Team Use?  Current ESI map  Communication protocol  Hold tracking/reporting tool  Escalation protocol  Compliance process  Documentation templates

Page 14 What Process Should Your Discovery Response Team Follow?  Scope and approach established  Response team activated  Custodians notified  In scope ESI identified and preserved  Existing holds cross-referenced  Compliance monitored according to case discovery plan  Case documentation developed, reviewed and updated  Exceptions investigated and resolved  ESI disposition when hold is lifted

Page 15 Records and Information Management Risks The Response Team May Consider Situation Lack of developed records retention schedules Legal Holds preserve too much or too little Lack of a coordinated and communicated discovery response plan Inadequate Records Management infrastructure and policies Strategy Prioritize business lines with high discovery risk Develop a data preservation plan Communicate and monitor standardized procedures Preservation plan Process for collection and review Define production protocol Uniform approach for records management

Page 16 Technology Risks Your Response Team May Consider Situation Inconsistent internal response to discovery requests Inadequate electronic information inventory No plan for preserving and collecting emerging data sources Difficulty retrieving data from obsolete systems or media Strategy Develop standard response to data interrogatories Centralized electronic information repositories Identify data sources at risk of discovery Evaluate ability of systems to support discovery

Page 17 Monitor for understanding and compliance Employees do what you inspect, not what you expect Periodically review discovery efforts and develop feedback to improve the discovery response plan Demonstrate that the company takes discovery seriously Compliance The Response Team’s Role In Monitoring Compliance

Page 18 Question & Answer Session

Page 19 Please contact with any questions: David Wetmore Ernst & Young LLP Executive Director Fraud Investigation & Dispute Services Forensic Technology & Discovery Services Minneapolis, MN Ben Hawksworth, PMP CFE Ernst & Young LLP Senior Manager Fraud Investigation & Dispute Services Forensic Technology & Discovery Services Washington, DC Monica J. Palko, Esq. BearingPoint, Inc. Associate Corporate Counsel – Litigation Office of the General Counsel McLean, VA

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