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Managing Your Data: Policies, Practices & Tools

Presented by:Galina Datskovsky, Ph.D., CRM

CA, Inc.

Charlene Wacenske

Morrison & Foerster LLP

Joe Anton

DLA Piper US LLP

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Session Description

Data retention issues have been troubling us for years. Just when we think we have the answers, new legislation and new technology causes us to rethink and update our strategy. Do you have a strategy for the following situations: 1. A lateral attorney at your door with 5GB of email from his/her previous firm. 2. Attorneys who insist on doing client work from their personal email accounts. 3. A unified messaging implementation. This session will address these and many others, including best practices and the tools available to deal with discovery and regulatory issues, retention policies, archiving and more. Come if you dare, and confront your worst nightmares

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Agenda

Examining Rules and RegulationSpecific Cases from our Panel MembersQuestion and Answer TimeWrap up

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Formats and Hidden Places

Document ManagementLocal/personal drives

Email (In/Sent Items boxes)Email ArchivesPortable MediaPart of Data BasesPostings on Internet/Intranet

Back up mediaCDs, Flash Drives, Home Machines

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Hold

PolicyProcedureDemonstrating Compliance

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Compliance

US Securities and Exchange Commission (SEC) National Association of Securities Dealers (NASD) The Freedom of Information Act Sarbanes-Oxley Act of 2002Rules of Civil Procedure (26, 34)Case Law

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Obligations Under the New FRCPBe prepared to discuss the discovery of ESI at early Rule 16 and 26 conferences.

Including preservation, scope and productionIdentify and Preserve information that is potentially relevant to known or “reasonably anticipated” litigation.Collect information so that the information maintained in the “ordinary course of business” is maintained.

Mostly this means metadata and formatting information.Produce information that has been ordinarily maintained or reasonably usable in the negotiated format requested.In short, exhibit a high degree of control over your enterprise data.

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Electronic Discovery TodayCurrent Landscape

Reactive, ad hoc actionHigh costServices basedClients billed by volumeHigh impact on IT resourcesCollection efforts disruptive No investment; throw-away moneyNot capturing repeatable processesBottom Line: It is Expensive

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Electronic Discovery TodayIT and Legal Disconnect

IT owns data, Legal owns discovery processIT must do Legal’s bidding, abandoning its own work and using scarce IT resourcesIT must frequently stop recycling backup tapes to meet court-ordered data preservationLegal must rely on IT for critical restoration tasks

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Electronic Discovery TodayWish Lists

What IT WantsManageable Data StoresServer PerformanceMore efficient an uninterrupted backup proceduresIncrease service back to the businessHand over discovery to someone else

What Legal, Compliance & Records WantsDefensible preservation / collection methodologiesComprehensive, enterprise-wide searchProactive management & uniform retention policiesEfficient and effective hold mechanismPredictable and reduced Discovery costsMinimize disruption to the businessTurn Discovery into a repeatable business process

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Legal Complications for International Firms

Differing legal systems – common law and civil law

Changing jurisdictional landscapes – the E.U., Mercosur, Asean, the Russian Federation

Different states of legal development in different jurisdictions

Trans-boundary legal issues

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Boundary Restrictions on Data Flow

Some data set can’t be sent to certain locations, or can’t be removed from some jurisdiction

The Data Privacy Directive, national laws on tax and accounting records, national security laws

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What’s the Problem?

If you haven’t put thought into it, you’re probably in violation

May heavily affect workflows and processes

May heavily impact the way technology is used

DON’T assume you can move and store information anyplace you want to

Proceed on a jurisdiction-by-jurisdiction basis

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Law Firms are NOT Exempt

NY Law Firm retains documents which have met their disposition deadline during the regular course of business under pharmaceutical clients retention schedule.Firm bore the expense of production and lost the company as a client.

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More Real Life …

Firm passes on female associate for partnership. She sues for discrimination.Associate evaluations for 10 years are reviewed. Male associates who received less favorable reviews made partner.Lower court favored employee. Later, higher court overturned.

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Results

Negative publicity for firm involved.Attorney started her own firm and has been extremely successful. Evaluations were kept for much longer than legally necessary. They also served no business useful business purpose.

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Proskauer vs. Sage and City of Dallas

Client is entitled to see and copy entire file, including lawyer work product, unless lawyer shows substantial grounds for denial.Sanctions were won because the Dallas Police department was unaware of its own retention policy. Documents in a murder case could not be produced because they had been destroyed under the policy.

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Importance of Retention Management

Retention ManagementFocuses on the management of all content Objective is to eliminate content where risk, cost or inefficiency outweighs its valueRetention rules specify the point which content must be re-evaluated or destroyedManage content in-place and move if desired

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Tools

Email Archiving SoftwareHSM ProductsRecords Management SystemsBack Up SoftwareE-Discovery Tools

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4 eDiscovery ToolsCompany Strengths Weaknesses

Attenex   Strong in doc review  

  Clusters 'like' documents  

 Greatly reduces review costs, which are the largest part of the impact  

Relies on partners for front and back end processing

         

Guidance  De-Facto standard in forensic collection   Complicated to use

 Used by majority of service providers who offer forensic collection services  

Need service engagement to use licensed model

         

PSS Systems   De-Facto standard in legal holds   Stand-alone play

 Can issue hold notices, monitor compliance  

Does not offer processing, review or production

 Now offering retention management and data mapping  

         

Kazeon  Full-text indexing of unstructured information  

"Boiling the ocean" leads to performance problems

  Uses FAST for indexing   Relies on FAST for indexing

   

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Lateral Attorney with 5 GB of Mail

Who is affectedITRecords

ElectronicPhysical

RecruitingConflicts

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Charlene Wacenske

Morrison & Foerster LLP

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Lateral Policy

What it should coverIncoming AttorneysOutgoing Attorneys

It should match your policy for physical materialConflicts

Closed mattersMaterials for companies that are not clients

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Implementation

Approval of messagesBalancing firm risks with attorneys workingClient work vs. Reference material

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Unified Messages

Retention periodIT Records

Legal HoldsDiscovery

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Joe Anton

DLA Piper US LLP

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Discoverable “because you send client e-mail from your ‘hotmail’ account we need a copy of it for a litigation hold”

Send a copy to your firm mailbox

Attorney use of personal e-Mail for business!

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Alternatives for external e-Mail access

Outlook WebDon’t need the client on their home machine

Citrix Metaframe Grants access to any of your internal resource

Browser access to the above

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Policies

Merging of PoliciesTechnology PolicyRetention PolicyRetention Schedule

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Conclusion

Have Clear Retention GuidelinesUnderstand How Information is Created and Who the Owner isUnderstand Legal RequirementsHave Clearly Defined Hold ProceduresHave Clearly Defined Transfer/Ingestion ProceduresHave the Right ToolsAlways Audit and Evaluate

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