E-Discovery – Practical Experience from an Agency Perspective Robert Wright Former Chief, Plans and Program Management Unit FBI.

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Presentation transcript:

E-Discovery – Practical Experience from an Agency Perspective Robert Wright Former Chief, Plans and Program Management Unit FBI

2 E-Discovery Preserve the integrity of relevant material  Not to delete  Destroy  Alter When a legal matter is initiated (or reasonably anticipated) - litigation hold

3 E-Discovery RiskTypeImpact 1.Ineffective or inefficient management of increasing quantities of ESI in various systems. Control Policy/Procedure Training Compromise of data’s integrity and lack of compliance to meet legal requirements. 2. Proliferation of ESI located throughout the organization. Control Policy/Procedure Difficulty in locating all related ESI to meet legal search& retrieval requirements. 3. Various retention standards for differing IT systems. Control Policy/Procedure Inability to retain vital ESI when required. 4. Decentralization of ESI systems.Policy/ProcedureLack of proper organizational compliance due to conflicting and contradictory policies. 5. Numerous un-standardized local policies and guidelines. Control ProcedureStandardize and centralize all e-discovery policies and procedures at the highest levels.

4 E-Discovery RiskTypeImpact 6. In terms of shifting costs burden to requestors, it may be problematic to accurately calculate costs for research and retrieval of organization’s ESI. Control Policy/Procedure Un-forecasted use of organizational resources (time, personnel, systems & funds) adversely impacting products and services. 7. Problems associated with treating classified ESI in open court. Control Policy/Procedure Compromise of classified or law enforcement sensitive information, sources or methods. 8. Problems of secondary ESI located in online storage media (hard drives & servers). Control Policy/Procedure Difficulty in locating all related ESI to meet legal search & retrieval requirements. 9. Problems of secondary ESI located in near-line storage media libraries (disks & tapes). Control Policy/Procedure Difficulty in locating all related ESI to meet legal search & retrieval requirements.

5 E-Discovery RiskTypeImpact 10. Problems of secondary ESI located in offline storage (disks, CDs); back up tapes; and replicant files (temporary files). Control Policy/Procedure Difficulty in locating all related ESI to meet legal search and retrieval requirements. 11. Inadequate up-to-date guidance in determining discovery rights and obligations. Policy/ProcedureLack of proper organizational compliance due to lack of current policies and procedures. 12. Inconsistent case law developments and conflicting or overriding legal decisions. Policy/ProcedureDiminished ability to properly plan and prepare for e-discovery cases. 13. Potential problems related to “safe harbors” from sanctions and “privilege & work-product protection claims.” Control Policy/Procedure Loss of safe harbor and privileged communication defenses.

6 E-Discovery RiskTypeImpact 14. In terms of two-tier discovery, “not reasonably accessible” may involve obsolete IT systems or applications. Control Policy/ProcedureLack of full compliance due to ESI produced or stored on legacy systems no longer available, increasing “cost and burden’ of retrieval or production.

7 Take-Away Tomorrow is not soon enough! Corporate View  Continuous monitoring  Exponential growth  Proliferation of specialized applications

8 Contact Information Robert Wright Principal Merrill LLC