Discussion Question – Need 3 answers for 1 question (Total 2 questions so need 6 answers)

CHAPTER GOALS AND

OBJECTIVES

2

➢ What is the key functional

area for IG impact?

➢ How does IG impact legal

functions in an organization?

➢ What are the Federal Rules

of Civil Procedure (FRCP)?

➢ How is e-discovery affected

by the FRCP?

➢ Outline the holding of

Zubulake v.

UBS

➢ Know the facts and how it

affects IG and e-discovery

➢ What are currently e-

discovery techniques

CHAPTER GOALS AND

OBJECTIVES…Continued

3

➢ What is the e-discovery

reference model?

➢ What is it used for?

➢ How does IG impact E-

Discovery?

➢ What is a record retention

policy?

➢ What are the benefits of a

record retention policy?

➢ What is predictive coding

➢ What case law impacted the

use of predictive coding?

➢ What is Technology Assisted

Review

➢ What are the 8 steps to

defensible disposition of

information?

Key Legal Processes Impacted

by IG

4

➢ E-Discovery

➢ Legal Hold Notification

➢ Defensible Disposition

➢ Use of new technology to comply with E-discovery

“Discovery”:

Pretrial procedure in a lawsuit in

which each party, through the law of

civil procedure, can obtain evidence

5

from the other party or parties by

means of discovery devices such as a

request for answers to Interrogatories,

Requests for Production of Documents,

Request for Admissions and

depositions. Discovery can be obtained

from non-parties using subpoenas.

When a discovery request is objected

to, the requesting party may seek the

assistance of the court by filing a

motion to compel discovery.

Wikipedia https://en.wikipedia.org/wiki/Discovery_(law)

E-DISCOVERY

The Federal Rules of Civil

Procedure govern civil proceedings in the

United States district courts. Their

purpose is “to secure the just, speedy,

and inexpensive determination of every

action and proceeding.” Fed. R. Civ. P. 1.

The rules were first adopted by order of

the Supreme Court on December 20,

Congress on1937, transmitted to

January 3, 1938, and effective

September 16, 1938.

http://www.uscourts.gov/rules-policies/current-rules-

practice-procedure/federal-rules-civil-procedure

http://www.uscourts.gov/rules-policies/current-rules-

RELEVANT 2006 CHANGES TO THE

RULES OF CIVIL PROCEDURE

6

➢ Revisions applicable to

preservation of electronic records in

the litigation process

➢ Revisions applicable to the discovery

of electronic records in the litigation

process

Applicable to “ESI”- Any information that is

created or stored in electronic form

GOAL of 2006 revision:

✓ Recognize importance of ESI

✓ Respond to increasingly prohibitive costs

of document reviews

✓ Protection of privileged information

FRCP AMENDED 2006 ARE

APPLICABLE TO WHAT?

7

➢ Cases in Federal Court

➢ Civil Cases
➢ All types of e-documents stored on all types of storage

devices and communication devices

➢ All content on those devices including metadata

Consider the Impact of “Big Data”

8

➢ The average Employee creates roughly 1 gig of data annually (and

growing)

➢ Costs associated with “dark data”

➢ Unknown or useless data

➢ Identify which data is important and relevant and classify, prioritize, and

schedule the systematic disposition of other data in a legally defensible

way

➢ Statistics: Approximately 25 % has real business value. 5 % required to be

retained as business records. 1% retained due to litigation hold.—On the

average 69% has no business, legal or regulatory value, and could be a

legal liability to the company

REVISED FEDERAL RULES OF CIVIL

PROCEDURE

9

How does this involve IG ?
➢ IG must make sure information is organized in a way that it

can be accessed quickly

FRCP 1 – Scope and Purpose: To secure the just, speedy, and

inexpensive determination of every action.

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-

dummies-cheat-sheet.html(accessed January 20, 2018)

http://www.dummies.com/how-to/content/ediscovery-for-

FRCP 1

Rule 1. Scope and Purpose

10

These rules govern the procedure in all civil actions and proceedings
in the United States district courts, except as stated in Rule 81. They
should be construed, administered, and employed by the court and
the parties to secure the just, speedy, and inexpensive determination
of every action and proceeding.

REVISED FEDERAL RULES OF CIVIL

PROCEDURE

11

How does this involve IG

➢ Court expects IT and

network literacy of both

sides, so that pretrial

conferences regarding

discoverable evidence are

productive

Pretrial Conferences,

Management.

FRCP 16 –

Scheduling;

Guidelines for preparing for and

managing the e-discovery process.

(Volonino and Reddpath, e-Discovery for Dummies,

www.dummies.com/how-to/content/ediscovery-for-dummies-

cheat-sheet.html(accessed January 20, 2018)

http://www.dummies.com/how-to/content/ediscovery-for-dummies-

REVISED FEDERAL RULES OF CIVIL

PROCEDURE

12

FRCP 26 – Duty to Disclose; General Provisions Governing Discovery

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-

to/content/ediscovery-for-dummies-cheat-sheet.html (accessed January 20, 2018)

How does this involve IG ?

➢ Protects litigants from costly and burdensome discovery requests,

given certain guidelines

http://www.dummies.com/how-

REVISED FEDERAL RULES OF CIVIL

PROCEDURE

13

FRCP 26(a)(1)(c) Requires initial discovery to be made no later than

14 days after initial meeting(Rule 26(f).

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies-cheat-

sheet.html (accessed January 20, 2018)

How does this involve IG ?

➢ IG must make sure information is organized in a way that it can be

accessed quickly

http://www.dummies.com/how-to/content/ediscovery-for-dummies-cheat-

FRCP 26(A)(1)(C)

14

(C) Time for Initial Disclosures—In General. A party must make the

initial disclosures at or within 14 days after the parties’ Rule 26(f)

conference unless a different time is set by stipulation or court

order, or unless a party objects during the conference that initial

disclosures are not appropriate in this action and states the

objection in the proposed discovery plan. In ruling on the

objection, the court must determine what disclosures, if any, are

to be made and must set the time for disclosure.

REVISED FEDERAL RULES OF

CIVIL PROCEDURE

15

FRCP 26(b)(2)(B): First introduces the concept of not reasonably

accessible ESI. Provides procedures for shifting the cost of accessing

not reasonably accessible ESI to the requesting party

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies-cheat-

sheet.html (accessed January 20, 2018)

How does this involve IG

➢ IG must justify why this ESI is not reasonably accessible

http://www.dummies.com/how-to/content/ediscovery-for-dummies-cheat-

REVISED FEDERAL RULES OF

CIVIL PROCEDURE

16

FRCP 26(b)(5)(B): Gives Court a clear procedure for settling

claims when you hand over ESI to requesting party that you

shouldn’t have.

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-

dummies-cheat-sheet.html (accessed January 20, 2018)

How does this involve IG

 IG should have clear rules for disposing of information that you
should not have

http://www.dummies.com/how-to/content/ediscovery-for-

FRCP 26 (b)(5)(B)

17

FRCP 26 (b)(5)(B) Information Produced. If information produced

in discovery is subject to a claim of privilege or of protection as

trial-preparation material, the party making the claim may notify

any party that received the information of the claim and the basis

for it. After being notified, a party must promptly return,

sequester, or destroy the specified information and any copies it

has; must not use or disclose the information until the claim is

resolved; must take reasonable steps to retrieve the information

if the party disclosed it before being notified; and may promptly

present the information to the court under seal for a

determination of the claim. The producing party must preserve

the information until the claim is resolved.

REVISED FEDERAL RULES OF CIVIL

PROCEDURE

18

FRCP 26(f): Requires parties to meet within 99 days of filing suit

and at least 21 days before scheduling conference.

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies-cheat-

sheet.html (accessed January 20, 2018)

How does this involve IG

➢ IG must make sure information is organized in a way that it can

be accessed quickly

http://www.dummies.com/how-to/content/ediscovery-for-dummies-cheat-

REVISED FEDERAL RULES OF CIVIL

PROCEDURE

19

FRCP 33 – Interrogatories to parties: Gives definitions of business e-

records that are discoverable and the right of opposing parties to

request and access them.

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies-cheat-

sheet.html(accessed January 20, 2018)

How does this involve IG

➢ IG must have clear policy for retention and justifiable procedure for

destruction

http://www.dummies.com/how-to/content/ediscovery-for-dummies-cheat-

REVISED FEDERAL RULES OF CIVIL

PROCEDURE

20

FRCP37 – Sanctions: Safe Harbor Rule. Keeps the court from

imposing sanctions when ESI is damaged or lost through routine

“good faith” operations.

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies-

cheat-sheet.html (accessed January 20, 2018)

How does this involve IG

➢ IG must have good legally defensible document management program

http://www.dummies.com/how-to/content/ediscovery-for-dummies-

REVISED FEDERAL RULES OF CIVIL

PROCEDURE

21

How does this involve IG

 IG must make sure information is organized and identified

FRCP 34 – Producing documents, Electronically Stored Information

and Tangible Things or Entering onto Land for Inspection and Other

Purposes. Addresses the format for requests and require that e-

records be accessible without undue difficulty.

(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies-cheat-

sheet.html (accessed January 20, 2018)

http://www.dummies.com/how-to/content/ediscovery-for-dummies-cheat-sheet.html

E-DISCOVERY REFERENCE MODEL
Visual Planning Tool Created by EDRM.net to assist in identifying and clarifying the

stages of the e-discovery process.

[email protected] Asante 2019
3

5

7 Steps in the E-Discovery Process

Present at
trial if your
case hasn’t

settled.
Judges have

little to no
patience

with lawyers
who appear

before them
not

understandi
ng e-

discovery
and the ESI

of their
clients or

the opposing
side.

7

Clawback
the ESI that

you
disclosed to

the
opposing

party that
you should

have
filtered out,

but didn’t.
Clawback is

not
unusual,
but you
have to
work at
getting

clawback
approved,

and the
court may

deny it.

6

Produce the
remaining
ESI, after

filtering out
what’s

irrelevant,
duplicated,

or
privileged.
Producing

ESI in native
format is
common.

5

Review and
analyze the
filtered ESI
for privilege

because
privileged
ESI is not

discoverabl
e, unless

some
exception

kicks in.

4

Process and
filter the

ESI to
remove the
excess and
duplicates.
You reduce

costs by
reducing

the volume
of ESI that
moves to
the next

stage in the
e-discovery

process.

3

Identify the
relevant

ESI,
preserve
any so it

cannot be
altered or

destroyed,
and collect

all ESI for
further
review.

2Create and
retain ESI

an
enforceable

electronic
records

retention
policy and
electronic

records
management

(ERM)
program.

Enforce the
policy and

monitor
compliance
with it and

the ERM
program.

1

according to

23

GUIDELINES FOR E-DISCOVERY PLANNING

Implement an
IG Program

Inventory ESI

Create and Implement
a comprehensive
records retention

policy-including email

a legal bold
policy that

is
enforceabl

e,
auditable

and legally
defensible

Leverage Technology

Develop and
Execute e-

discovery plan

24

IG IMPACT ON E-DISCOVERY

25

➢ Cost Reduction

➢ Risk Management

➢ Better Litigation win rates

➢ Strategic Planning for Matters

based on Merit

➢ Strategic Planning for Matters

based on Cost

➢ Litigation Budget Optimization

The Legal Hold Process….

26

How Should It Work?

ESI must be preserved in place and no longer edited or altered so it

can be reviewed during discovery

How Does It Work?

Just the opposite of how it should! Employees quickly edit and

delete relevant e-documents that may implicate them

what is it?

Formal system of policies, processes, and controls to notify

key employees of civil lawsuits or potential suits, and the set

of documents that must be put on legal hold.

LEGAL HOLD NOTIFICATION

27

This is a very discreet IG project

Absolute minimum an organization should do to meet the legal guidelines

Where to start?

KEY: Must not be outsourced!

Get over the perception that this is too expensive and too difficult to

deploy

• Define the Requirements

• Define the Ideal Process

• Select the Technology

DEFENSIBLE DISPOSITION OF
INFORMATION

28

➢ Begin with legal hold management.

➢ Law requires a “reasonable effort”

➢ Prioritize what information to delete

➢ Don’t try to delete across the entire organization at

once

➢ Put systematic rules in place for deletion

➢ Hint: Most companies begin with email

DESTRUCTIVE RETENTION
PROGRAM

29

An approach to e-mail archiving where e-mail messages are

retained for a limited time followed by the permanent

manual or automatic deletion of the messages from the

organizational network, so long as there is no litigation hold

or e-mail has not been declared a record.

SO…. How long is the retention period?

➢ Varies by Company.

➢ 25 % of companies delete after 90 days

➢ Heavily regulated industries archive for 1 year

➢ Traditionally 7 years but changing.

What Can I Do To Make E-

Discovery Easier?

30

Apply newer technologies

• Can speed up the document review process

• Improve the ability to be responsive to discovery requests

Examples:

❑ Predictive Coding

❑ Technology Assisted Review

PREDICTIVE CODING

31

Used for document review-Teaches software what

to look for.

Software with the goal of reducing the total group

of documents that a legal team needs to review

manually by finding the gross set of documents that

are relevant or responsive to the case at hand –

reducing billable attorney hours and costs.

Technologies Involved?

• Machine Learning (AI)

• Workflow Software

• Text Analytics

• Keyword Searches

• Pattern Matching

• Sampling

• Filtering

LEGAL MILESTONES IN PREDICTIVE
CODING FOR E-DISCOVERY

Global Aerospace, Inc., et al. v. Landow Aviation, PL et al.

Consol. Case No. CL 61040, 2012 WL 1431215 (Va. Cir. Ct. Apr.

23, 2012).

32

The first State Court Order approving the use of Predictive

Coding by the producing party, over the objection of the

requesting party, without prejudice to the requesting party

raising an issue with the Court as to the completeness or the

contents of the production, or the ongoing use of Predictive

Coding.

Basic argument favoring predictive coding was that

predictive coding is capable of locating upward of 75% of

the potentially relevant documents and can be effectively

implemented at a fraction of the cost and time of linear

review and keyword searches.

TECHNOLOGY-ASSISTED REVIEW

(Computer-Assisted Review)

33

• This is not the same thing as predictive coding!

• Includes aspects of nonlinear review – culling, clustering,

and de-duplication

• Does not meet the requirements of predictive coding

Mechanisms of TAR

• Rules Driven-Team creates a set of rules for document

review which is essentially a coding manual which are fed

into the software

• Facet Driven – Tool analyzes documents for potential

items of interest or groups potentially similar items

• Propagation Based – Propagating what is known based on

a sample set of data to the rest of the documents.

DEFENSIBLE DISPOSITION

34

Technology, policies, procedures and management controls

designed to ensure that records are created, managed, and

disposed of at the end of their life cycle.

Why do we need to do this?

➢ Big Data – huge growth of information

➢ Record and Information Management isn’t working well

➢ Volumes of information are adversely affecting effectiveness

DEFENSIBLE

DISPOSITION…continued

35

➢ New Information Custodians—it’s a problem

➢ Users aren’t trained on records management principles and have

no incentive to manage or dispose of records

➢ Use of proper technology to manage digital records properly

➢ Auto-classification and analytics

➢ Remember –You must defend your policy. It must be

defensible…not perfect

Select practical assessment/classification process

Develop/document essential aspects of the disposition program

Develop a mechanism to modify, alter or terminate components when required

Assess content for eligibility for disposition

Test, validate and refine the efficacy of content assessment

Apply disposition methodology to content as necessary

Repeatedly, verify and document the efficacy and results

8 STEPS TO DEFENSIBLE

DISPOSITION
Define a reasonable diligence process

RECORD RETENTION

37

How to Increase Defensibility of Destroying Records?

✓ Authority to destroy records is identified on retention

schedule

✓ Retention requirements have been met

✓ Records are slated for destruction in normal course of

business

✓ There are no exiting legal or financial holds

✓ All records of the same type are treated consistently

and systematically

Retention Policy

38

➢ Meet the legal limitation period

➢ Conduct research in each jurisdiction (venue) where the business

operates

➢ Maintain a records retention schedule

➢ Note: Retention schedules are developed for records series, categories,

functions or systems and not for individual records, i.e. Functional

Retention Schedule, or Master Retention Schedule

➢ Record Retention Schedules are kept for ALL records, not just

electronic records

BENEFITS OF A RETENTION

SCHEDULE
Reduces Legal Risk and liability exposure

Supports legally defensible records management program

Improves IG thru uniformity and standardization

Improves search quality and reduces search time

Provides higher quality records information and decision support

Prevents inadvertent, malicious or premature destruction of records

Improves accountability for Life Cycle Management of records

Improves security of confidential records

Reduces and minimizes costs for maintaining records

Determines which records have historic value

Saves hardware utility and labor costs by deleting records after their life span

Optimizes use of online storage and access resources
39

THE END

40

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