1. 1 © Copyright 2008 EMC Corporation. All rights reserved. Litigation Response Planning: eDiscovery Best Practices Stephen O’Leary Sr. eDiscovery and Compliance Consultant EMC Corporation

2. 2 © Copyright 2008 EMC Corporation. All rights reserved. Policy Mgmt of Information Customer goal: move from reactive outsourced model, to in-house policy and records management, and repeatable process for identification, collection and preservation/hold Post-notice Discovery Process Step 1 Reduce the amount of retained data Step 2 Reduce cost and improve the quality/ auditability of eDiscovery Electronic Discovery Reference Model (EDRM)

3. 3 © Copyright 2008 EMC Corporation. All rights reserved. 1.Make a business case for support from a high-level officer 1.ROI associated w/ ILM for unstructured sources (i.e. email, file shares, SharePoint and desktops) 2.Operational Efficiencies including back-up windows, higher availability and less management 3.Organizational Risk associated with cost of collection, review and dominant liability of content 2.Requires executive sponsorship (at the highest level) 1.Personal preference is General Counsel 3.Form a standing task force (cross functional) 1.Senior Level representation from Legal, IT, Compliance, Records Management, Security and a line or two of the business 4.Appoint an eDiscovery coordinator and/or Legal IT person (i.e. Records Manager) to maintain data maps and document processes Litigation Response Planning – Take Charge!

4. 4 © Copyright 2008 EMC Corporation. All rights reserved. Task Force Goal and Objectives – Develop LRP Goal:  Develop a Litigation Response Protocol (LRP) “Playbook” –Documented, validated and repeatable business process  LRP is a lifecycle of activities from matter identification through to matter disposition and closure, focused on eDiscovery requirements  Organic reference guide Objectives:  Identify existing people, process and technology involved in Litigation Response –Identify gaps between current capabilities and target capabilities; IT capabilities and Legal requirements  Document the target state for end-to-end Litigation process beginning with identification of a matter through closure of the matter.  Assimilate process to technology; identify and invest in tools where gaps may occur. The key is to bring eDiscovery “in-house” an enable eDiscovery within the IT infrastructure/investments in infrastructure.

5. 5 © Copyright 2008 EMC Corporation. All rights reserved. Process Steps 1.Define4. Validate 2.Assess 5. Educate 3.Document6. Remediate SAMPLE

6. 6 © Copyright 2008 EMC Corporation. All rights reserved. Define Targeted State - Perform Assessment 1.Define and Scope Project Parameters 2.Assessment  Operational Capabilities (Identify, gather, review, confirm) –Organizational structure, roles, and responsibilities related to litigation response –Litigation Hold policies and procedures –Legal Department processes related to eDiscovery –Records Management policies and procedures –IT Department processes related to eDiscovery –Archive Policies and Procedures –Back-up Policies and Procedures  IT Systems Capabilities (same) –Evaluate eDiscovery indexing, search and collection tools –eDiscovery data segregation and protection systems and tools –Evaluate unstructured ESI sources/systems (dimensions should include policy procedure, consistency, enforcement)

7. 7 © Copyright 2008 EMC Corporation. All rights reserved. Document Litigation Response Protocol & Validate  Lay out specific steps and assignments (by role) for every step in the process –Notification, collection, preservation  Establish a written protocol to follow upon receipt of a discovery request, preservation order or other similar item  Develop a procedure for actively managing and monitoring compliance  Enable a procedure for lifting the litigation hold and restoring the records management program  Confirm and Validate against capabilities

8. 8 © Copyright 2008 EMC Corporation. All rights reserved. Vital LRP component - Data Source Map (s)  Create Data Source Map - Information systems topology –System of record –Systems w/ convenience copies –Archives –Disaster recovery copies / back-ups  Understand the universe of potentially responsive ESI –Potentially create ESI Inventory  Understanding of ESI Accessibility  Potentially Develop Litigation Profiles and Source Maps per Litigation Type

9. 9 © Copyright 2008 EMC Corporation. All rights reserved. Additional Elements of the LRP “Playbook” 1.Defined Key Players in the process 2.Documented processes. 1.Records management program 2.Litigation Hold (you will need this for court) 3.ESI Inventory –Understanding of potentially responsive ESI –Understanding of ESI Accessibility 4.Data source map by litigation type/profile 5.Know your email system! 6.Document and Validate Preservation Steps Undertaken 7.Interview and select outside vendors 8.Educate key stakeholders including outside counsel 9.Prepare 30(b)(6) witnesses

10. 10 © Copyright 2008 EMC Corporation. All rights reserved. Go Back and Correct what is Broken  Limit places where Email can reside  Policy mange your File Shares  Separate Back-up from Archives  Address Legacy Systems  Invest in eDiscovery Collection tools –Collection v. analytics

11. 11 © Copyright 2008 EMC Corporation. All rights reserved.