It takes a Village....eDiscovery at LegalTech NY 2011

1. It Takes a Village…A cross-functional approach to eDiscovery Panelists: Michael Spencer – DISH Network Rich Simon – Deloitte Financial Advisory Services George Socha – Socha Consulting, LLC Moderator: William (Ted) O’Neil, Esq. – EMC Corp.

2. Current State Situation: Explosion of Electronically Stored Information (ESI) Changes to the FRCP & case law Increased Regulatory Scrutiny Complication: Need to understand ESI Sources – System of Record ESI Accessibility Various Identification, Collect and Hold Processes Implication: Suspect Litigation Hold and Collection Processes Risk of Spoliation and breaking Chain of Custody Save Everything…Hold Everything…Collect Everything Position: Business imperative to - Pro-actively manage information Establish repeatable cross-functional business processes for Information Governance & eDiscovery

3. Key Drivers Federal Litigation State Litigation Cross-Border Litigation EEOC & Administrative Matters Regulatory Inquires Internal Investigations

4. Seventh Circuit Electronic Discovery Pilot Program Key Highlights: Cooperation Discovery Proportionality Meet & Confer Discovery Liaisons Appropriate Preservation Requests ESI & Production Format Education

5. U.S. District CourtDistrict of Delaware Ad Hoc Committee for Electronic Discovery Default Standard for the Discovery of ESI 3. E-discovery liaison. In order to promote communication and cooperation between the parties, each party to a case shall designate a single individual through which all e-discovery requests and responses are made ("the e-discovery liaison"). Regardless of whether the e-discovery liaison is an attorney (in-house or outside counsel), a third party consultant, or an employee of the party, he or she must be: - Familiar with the party's electronic systems and capabilities in order to explain these systems and answer relevant questions. - Knowledgeable about the technical aspects of e-discovery, including electronic document storage, organization, and format issues. - Prepared to participate in e-discovery dispute resolutions. The court notes that, at all times, the attorneys of record shall be responsible for compliance with e-discovery requests. However, the e-discovery liaisons shall be responsible for organizing each party's e-discovery efforts to insure consistency and thoroughness and, generally, to facilitate the e-discovery process. SEE: http://www.ded.uscourts.gov/Announce/HotPage21.htm

6. Elements of a Successful Response Protocol Strategy Plan Roadmap Documented Processes Defined Roles & Responsibilities Stakeholder Ownership Key Metrics Quality Controls

7. Cross-functional Players and Issues Key Players Information Technology (“IT”) Records and Information Management (“RIM”) Law Department (“LAW”) The Business Key Issues IT / LAW – “Systems of Record” What systems are in place What are they used for Which systems are likely to host data subject to legal discovery RIM / LAW - Records Retention - Avoidance of the “Preserve All” problem Records Retention Policy Records Retention Schedule LAW / IT Identification of Records Subject to Collection and Litigation Hold Coordination with IT to “Hold” Data

8. Cross-Functional Solutions Liaison Dedicated individual familiar with IT systems, Records Management practices and Legal Obligations Liaison ensures that all three functional departments are in sync Training Ensure that the right minds have the right information IT people should be familiar with legal obligations Legal staff should be familiar with basic IT systems (email archiving, DMS, etc.) RIM staff should be familiar with both and ensure policies reflect both legal obligations and opportunities to reduce volume of non-responsive data Ensure that employee pool is aware of legal obligations, records management policies, and IT limitations Records Management Policy Sets forth how to go about preservation and destruction of records Records Retention Schedule Identifies which records can be purged and when

9. Cross-Functional Approach in Practice The “triggering Event”…Duty to “Preserve” Liaison meets with managing attorney to identify key concepts, custodians, scope Liaison meets with LAW (litigation support) staff Support staff sends out preservation memo on behalf of attorney Begins reaching out to custodians for collection of paper records Submits service request to IT for collection of unstructured data Submits authorization request to search enterprise email archive Liaison meets with IT staff Identifies back-end preservation issues Discusses which systems need holds in place in data center and to what extent Discusses backup preservation issues e.g., are backup tapes at issue? If so, which tapes need to be pulled and for how long (est)? Discusses any additional steps need to be taken to preserve data / prevent spoliation by custodians, e.g., is authentication at issue? Do hard drives need to be pulled or imaged? Liaison meets with RIM staff Identifies any records destruction authorizations which need to be suspended Identifies locations of off-site records subject to request

10. From Theory to Defensible Process Identify and close gaps Identify and close gaps in your current eDiscovery process capabilities Document and integrate Establish a documented eDiscovery process that integrates organization, process, and tools Enable systematic response Enable systematic identification, preservation and collection leveraging automated eDiscovery technology Standardize Processes Mitigate risk with a written protocol to follow upon receipt of a discovery request, preservation order, or other similar item Processing Preservation Identification Information Management Review Production Presentation Collection Analysis