1. Legal IT Forum 2007 Litigation Readiness
Andrew Haslam
Jonathan Maas
John Forsyth
Andrew Dey
Introduce everyone, 45 minutes for presentation.
Time for questions at the end.
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2. Agenda What is Litigation Readiness and why is it so important now?
What are global corporations doing today in response?
How has this environment impacted US law firms?
How has this environment impacted UK firms to date?
How might UK firms be impacted in the future?
Think about this one, may make it more visual, and focus on:
Brief on EDD and LR from me,
Global viewpoint from Andrew Dey & John
US and UK firms from Andrew Haslam and Jonathan
Then look at what Clients might do and more importantly what Law firms might need to do.
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Draft - Priviliged & Confidential 2

3. Drivers in electronic discovery
Rules
New laws, i.e. changes to the CPR, FRCP
Complexity
Increased complexity and dependency
Increased use of computer systems
Increased digital-only existence of data
Volumes
Bigger storage volumes
This is the background
Employee drafts, copies, attachments, thumb drives, CDs
IT copies, mirrors, backups, replicas, archives, distributed storage
Formats: spreadsheets, databases, PowerPoint's, business , personal , instant messaging
No employee or IT incentive, time or budget to manage the proliferation
Volumes = 90Bn s worldwide each day.
MS study in Federal Judge’s pocket book = roughly 50 s sent/received per person per day.
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4. Trends in US Courts
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
We are NOT saying this will happen over here, but will be looking at why these things went wrong.
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5. What is Litigation Readiness
“A better fence at the top of the cliff”
Sound RIM as a good efficient business practice
Becoming essential for certain firms i.e. SOX, FSA, Basel 2 and MiFID
May be part of due diligence in a M&A situation
Overall want to bring out that the fundamentals of litigation readiness also meet a number of other good business requirements.
Having a sound mechanism for handling electronic data has a business value in its own right.
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6. Why Litigation Readiness?
Regulatory and Compliance drivers
Litigation issues
Data Protection problems
General information management “Best Practice"
Increased regulatory requirements
Increased risk profile for global businesses
Morgan Stanley
Brand tarnishment
Reducing ever escalating costs of e-discovery
Changes in the UK and US rules (CPR and FRCP)
Sharing of information early in the litigation process (meet & confer)
Courts expect parties to cooperate
UK has been “ostrich like,” with lawyers avoiding implications, but soon enough cases will arise where one side is prepared and the other isn’t and this will affect outcome of case.
US has very actively embraced it, so there are best practices to be shared
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7. Corporate Strategies Profile your systems and data
Reduce the pool of backup/archival media
Extend records/retention policy to ESI
Establish “Preserve Now” team and process
Streamline litigation hold process
Manage outside counsel and vendors
Litigation Process “Outsourcing”
Changing the Corporate Architecture
Brief summary of each point.
1) 80/20 rule = most data in PCs/ & file servers/Back-up tapes. Interview & document = understand universe
2) Define a policy, sweep for media, destroy and control following “principled” approach.
(Obtain legal opinion and clear criteria on when to include backup tapes in litigation and how to communicate to opposing parties.)
3) Purge paper and electronic equivalents if not needed.
(Develop audit protocol to periodically revisit policy implementation)
4) Needs to be a senior management initiative with plan and checklists.
(Establish “rules of engagement” to ensure immediate and appropriate access to relevant systems and data)
5) Ongoing process for IT and legal to carry on talking and review process.
6) Get a grip of outside counsel, identify suitable vendors.
(Auditing lawyer document review process)
7) Review work using LPO’s and consultancies.
Finally rather than playing the hand you have been dealt with as well as possible, you can “stack the deck”.
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8. Emerging “best practices”
Be first to put a reasonable plan in place, to your advantage, then cost shift
Issue litigation hold quickly, narrowly, and often
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 metadata
Collect accessible data, broadly, cull later
Sample to reduce population of documents sent to review
‘Conceptual’ document review tools
Lawyers are turning to internal IT organizations for advice (and sometimes services directly to client) – Perhaps use slide with EDD life cycle to illustrate
New roles for IT
Help corporate counsel communicate more effectively with their IT organizations for legal hold and preservation instructions
Assist in early case assessment looking to identify locations of potentially responsive materials
Distinguishing technically between accessible and inaccessible materials
Perform collections
Perform forensic investigations
Traditional roles for IT
Provide technology to support in-house processing, review, and production
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9. Original Volume (and Cost)
Efficiencies in e-disclosure
Litigation
Readiness
Proactive
Reactive/technology
Original Volume (and Cost)
Scope
Preserve
Gather
Process
Host
Review
Present
What’s the ultimate effect of these?
Disclosure made up of these elements.
Standard approach is to do this:
Far more significant is to try this:
On-site collection and “triage” using consultancy alongside the legal team to identify the core data, and smarter tools to find it.
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10. The Challenges Understand the details of client IT systems
Think global
Scope of data – locations, volume, timeframe, retention
Preservation options, and cost to access, cull and produce
Preserve data/metadata upon ‘anticipation’
Employee litigation holds should be robust, but may be insufficient.
IT should proactively preserve from a system standpoint
Metadata, backup tapes, what is reasonable?
Develop ‘CMC’ strategy for negotiating
Defensibility of preservation
Accessibility/inaccessibility for collection
Timeframe/format of production
Make the point that metadata is being increasingly used by the courts to establish the veracity of evidence.
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11. So What? How has this environment impacted UK firms to date?
How might UK firms be impacted in the future?
Balancing act between US SOX = “preserve everything” vs. EU Data Protection = “delete as soon as you don’t need it”.
Long arm of US. Natwest 3, Betfair directors.
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12. Law firms and EDD Respond to client requests
Client is under investigation or subject to litigation
Client requests back history
Client requests destruction or return of materials
Respond to request from regulatory body or government
Respond to a Data Access Information Request
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
Reasonable expectation of litigation (US)
When might EDD come knocking at your door?
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13. What might Litigation Readiness involve?
Records Management policy, procedures and documentation
Demonstrable proof that IT information management policies and procedures align with and enforce RM policy
Defensible litigation hold processes, procedures and documentation
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14. What might Litigation Readiness involve?
Defensible preservation processes, procedures and documentation (paper and electronic information)
Up-to-date inventory of technology systems
Up-to-date data map
Methods to collect and produce required materials
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15. What Challenges Might a Firm Face?
Getting management support in advance
Firm’s believe they are immune until an event occurs
Records management policies and procedures are notoriously hard for firms to embrace
Tony Williams warning.
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16. What Challenges Might a Firm Face?
Balancing interests of competing stakeholders
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
Client wants firm to maintain information in accordance with the client’s interests
Establishing effective communications between IT and legal
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17. What Challenges Might a Firm Face?
Doing the work
Most IT systems and procedures are designed for business continuity and recovery, not disclosure activities
Data privacy rules and regulations can complicate work substantially
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
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18. What Challenges Might a Firm Face?
Covering the costs—which can be enormous
Identifying and capturing costs (hard and soft)
Recovering costs from clients
Absorbing unrecoverable costs in the firm’s budget
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19. What actions should be on your “Strategic To Do’s” list?
Create a policy dialogue with firm’s leadership
Understand potential risks and costs of doing nothing
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
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20. What actions should be on your “Strategic To Do’s” list?
Keep pace with evolving standards and changes in environment
“You will be measured today by tomorrow’s standards”
Enforce records retention/destruction policy on electronic information
Implement a comprehensive matter centric computing environment, if possible
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21. What items should be on your “Tactical To Do’s” list?
Establish a formal litigation hold process
Understand the high risks of and manage aggressively
Set shortest possible retention period for un-filed s and enforce automated deletion
Ensure backup procedures are aligned with retention rules
Understand and mitigate risks of users creating personal archive files
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22. What items should be on your “Tactical To Do’s” list?
Maintain historical and current inventories of data, media, and user access rights
Establish operational policies and procedures to keep them current
Distinguish between reasonably accessible and inaccessible locations
Maintain historical and current inventories of technology infrastructure
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23. Questions?
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