© 2009 Kroll Ontrack Inc. | Hello IT, Its Legal Calling April 14, 2009.

© 2009 Kroll Ontrack Inc. | www.krollontrack.com

Hello IT, It’s Legal Calling

April 14, 2009

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Discussion Overview

Creating a Document Management Plan

Venus & Mars: Bridging the IT - Legal Communications Gap

Data Preservation & Litigation Holds

Parting Thoughts & Best Practices


Creating a Document Management Plan

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Introduction

Few IT professionals understand the complexity of procedural and discovery rules in the context of litigation, and few in-house attorneys understand fully the technical intricacies of IT

Corporate counsel are recognizing the need to partner with IT and both now recognize the need to draw from one another’s expertise – Recognition of IT’s importance marks a shift toward what must

become a more collaborative and team-oriented approach to e-discovery

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Litigation Task Force

Litigation preparedness and response activities are forcing IT and Legal to come together to improve communication and collaboration around e-discovery

Organizations are recognizing the importance of coordinating an e-discovery response team to assist in formulating document retention and litigation response policies

No “one-size fits all” approach to these problems. Organizations are searching high and low to find the best alternatives to fit their needs

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Forming a Litigation Task Force

The litigation task force should maintain knowledge of information regarding:

Where company data resides

How it is maintained

How it can be accessed

When it is destroyed

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Litigation Task Force: Roles & Responsibilities

E-Discovery Expert

Corporate Records

Management

IT-Corporate

Security

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ESI Strategy Formation: Who Is Responsible?

35% of US companies attribute responsibility to IT

– Up from 18% in 2007

Trend is testament to the technical nature of ESI

An ongoing marriage between IT and the legal team is essential to ensure that the plans put in place are adequate, all-encompassing and feasible when a legal crisis breaks

– Second Annual ESI Trends Report, Kroll Ontrack (2008)


Venus & Mars: Bridging the IT - Legal Communications Gap

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General Communication Considerations

When communicating, make sure everyone is on the same page

IT and Legal don’t speak the same language– IT’s strength lies with charts and technical language– Legal’s strength lies with “legalese”

Use “simple” talk to convey points– Eliminate acronyms and highly technical or legal language

Don’t be embarrassed about not understanding the jargon

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Early engagement between IT and Legal is incredibly important– Know who the key people in each department are

Meetings are essential: – Develop rapport and break down communication barriers– Keep everyone on the same page regarding what is happening and

what resources are needed

During these meetings, discuss projects that are coming down the pipeline

Speak in-person or via phone– E-mail is not always clear – Speaking directly may identify additional information that is needed

or identify issues that may have been overlooked

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Establish the goals of each project:– Why are we doing this?– What do we hope to achieve?

Avoid side conversations and decisions by keeping open communication

Establish written policies and procedures, making them easily accessible to members of both IT and Legal

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How Should Legal Communicate with IT?

Ask! (and take good notes)– Hint: embark on an initiative to prepare joint documentation that

includes litigation response

Always ask the same question at least twice

Always ask more than one IT person

Ask the right people, including:– Records management personnel and business owners

Bring in an expert when appropriate

Include IT in conversations with the company’s vendor (if applicable)

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How is Legal Asking?

Beware the language barrier!– Did you pack your “Legalese-to-Techie” dictionary?

Did you hand the client’s “Techie” a copy of the interrogatories and say “Answer as best you can”?

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How is Legal Asking?

Techie Answer:

“We had Two Dell PowerEdge 1955 Blade Servers with Quad-Core Intel® Xeon® 5000 Sequence processors and 32Gb of Ram powering our workgroup of twenty-five Dell Precision M90 Notebook computers with Intel® Core 2 Duo processors and 4Gb of Ram.”

Interrogatory: “Please list all systems in use during the time period in question.”

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Who Should Legal Ask?

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Data Collection Sources: Work with IT to Identify Key Locations

Thoroughly interview IT personnel

This meeting enables you to get the “lay of the land”

Identify and interview custodians

Identify data locations

Establish relevant preservation protocols

Build partnerships between IT and legal professionals

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Chain of Custody

Maintaining proper chain of custody is absolutely essential– Chain of custody logs answer the "what, who, when, where, and

why" questions about the history of the electronic evidence they document

Having defensible documentation provides protection from accusations that electronic data may have been intentionally or inadvertently altered

IT must understand how to establish chain of custody

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How Should IT Communicate with Legal?

Form dedicated “SWAT” teams comprised of IT and Legal – Teams should exist for both the introduction and decommission

phases of an application

On the front-end, teams should communicate the role of any new application to help Legal understand application’s role and purpose– Assists during discovery requests

On the back-end, teams should communicate the retirement of an application– How long was the application in existence?– What happened to the data?

Migrated? Retained? Etc.

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Schedule regular meetings between the head of IT and Legal to update project and technology development– Technology constantly changes – meetings allow both departments

to stay on top of the trends

Develop “information sheets” based on each major application within the company that is routinely involved in e-discovery. Each information sheet should include a separate focus for IT, Legal and one general version

These sheets describe each application, including:– What it does– What it’s needed for– How it works, etc.

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Repeat any request received from Legal and double-check what the precise request was – Helps with planning and ensuring work is completed efficiently

Clearly establish and define the project timeline

Understanding the request fully will help cut down on amounts of non-relevant data returned to Legal– In turn, this will help decrease mistakes and costs

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IT Can Help Educate Legal

IT can help educate counsel as follows:

– All operating systems, software applications and hardware formerly and currently in use;

– The flow of data into, within and out of the company;

– Disk or tape labeling conventions, file name customs, location-saving rules;

– Corporate document retention policies and the current enforcement status of those policies; and

– Corporate policies regarding employee use of company computers and data

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Third-Party IT / Legal Liaison

Company should have one person who straddles the line between IT and Legal – Should possess a working knowledge of both fields

It may be prudent to engage a third-party IT/Legal liaison or expert to facilitate communication– Liaison can offer best practices on consulting and e-discovery

management within the organization

Working with IT and counsel, these liaisons can be critical to managing collection, and facilitating review and production of responsive data

However, there may not always be a budget for an outside expert


Data Preservation & Litigation Holds

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Data Preservation: Duty to Preserve

Preservation triggers:– Notice of litigation = “reasonable anticipation”

“Obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”

- Treppel v. Biovail Corp., 2008 WL 866594 (S.D.N.Y. April 2, 2008) (citing Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001))

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Issue Litigation Holds and Communicate with Pertinent Parties

Ensure that department heads, IT personnel and all pertinent employees are made aware of the hold.

Counsel should also notify legal opponents and relevant third-parties of their duty to preserve potentially responsive documents and data.

Upon Notice of Litigation

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Suspend Routine Disposal Practices

Upon Notice of Litigation

Issue Litigation Holds andCommunicate With Pertinent Parties

Make Forensically-SoundImages of Key Hard Drives

Work with Opposing Counsel toDefine the Scope of Discovery

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Ensure & Monitor Litigation Hold Compliance

Counsel should actively monitor suspension measures and personally ensure compliance

Follow-up with key players and new employees who may be affected by the hold

Send follow-up notices, especially during prolonged litigation

Maintain document of who, what, when and how litigation notices were acknowledged

Provide list of custodians to IT and HR to ensure compliance

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Ensure & Monitor Litigation Hold Compliance

A litigation hold should remain in effect until:– All appeals deadlines have tolled and the entered judgment and

award is final– A final settlement agreement has been reached and a formal

release has been signed by all parties– The case is dismissed with prejudice and no outstanding related

claims remain

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Cooperation and communication are essential elements of the relationship which must exist between IT and Legal in order for a corporate ESI policy to be a success

Documentation shared by Legal and IT, corresponding to their communication, should be as simple as possible, easily understandable and well-maintained

Empower your litigation response team with tools and resources to efficiently identify, locate and preserve discoverable information

Plan for discovery!

© 2009 Kroll Ontrack Inc. | Hello IT, Its Legal Calling April 14, 2009.

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Transcript of © 2009 Kroll Ontrack Inc. | Hello IT, Its Legal Calling April 14, 2009.