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• Panel

• Moderator
• Sonia G. Cudd, Associate Counsel and Assistant
  Secretary McCormick Company,
  Incorporated
• Presenters
• Alice Lawrence, Principal Jordan
  Lawrence
• Daniel Cooperman, Senior Vice President, General
  Counsel and Secretary Oracle Corporation
• John Patzakis, Esq., Vice Chairman and Chief
  Legal Officer Guidance Software

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Infusing Records Policy into TechnologyApril
18, 2007Presented by Association of
Corporate Counselwww.acc.com
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• About Jordan Lawrence

• Twenty years experience helping companies solve
  real-world records and information management
  problems
• Objective - client-implemented best-practice
  standards and benchmarking data
• ACC Alliance Partner

ASSESSING
DEVELOPING
ENFORCING
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Legal and IT Objectives

• Enforce your policy
• Retain
• Protect
• Manage and Dispose
• Make well-informed decisions
• Have a verifiable legal hold process
• Compliance with newly amended Federal Rules
• Rule 26 data map

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• Better Information for Better Decisions

• What record types you have
• Who owns or controls them
• Where records are held and on what applications
  or media
• What is the value of information and record types
• When should information and record types be
  disposed

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Records DNA is Critical
Record Names Descriptions Activity
Levels Active-Use Periods Volumes
Management Subject Matter Experts Advisors Busines
s Representatives
Facts Metrics
People
Record Type DNA
Content Management Email Electronic -IT
Controlled -User Controlled Paper System
Security Rapid Production Secure
Destruction Regulatory Needs Business Needs
Record Type Tagging
Media Application
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Assessment Value for IT and Data Security

• Map personally identifiable information
• Identify redundancies
• Locate where information is shared
• Opportunities to reduce legacy records and
  information
• For more information, see www.jordanlawrence.com/b
  enchmarking

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• Assessment Value for Legal

• Rule 26 data map
• Identify and prioritize risks
• Bridge legal and IT objectives
• Opportunities to reduce legacy records and
  information
• For more information, see www.jordanlawrence.com/
  benchmarking

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Infusing Policy Into Technology
Enforcement Solutions
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Hold Management

• Enact immediate and verifiable legal holds
• Process must cover all users, all record types,
  all systems and media
• Dispose of obsolete records and information
• Keep policy and critical information up-to-date

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Jordan

• Better information for better decisions
• Bridge legal and IT objectives
• Policy must be tied to process and technology
• Must have an effective hold management process
• alawrence0407_at_jlgroup.com
• 636.821.2222

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• Daniel Cooperman
• SVP, General Counsel and Secretary
• Oracle Corporation

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Oracle Corporation Key Facts
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Evolution of General Counsels Role
Source General Counsel Roundtable, 2006
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A Pressure Cooker Environment
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A Piecemeal Approach to Compliance Creates
Complexity and Inconsistency
GRC Programs
People
Legal
Finance
HR
Sales
Suppliers
Customers
RD
Mfg
Technology
Regions
PatriotAct
ExportControl
CorporatePolicy
Basel II
FCPA
Mandates
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Build a Sustainable Platform for Governance,
Risk, and Compliance
Business Intelligence, Reporting, Dashboards
Risk and Compliance Management
Training and Learning
Business Applications Structured Data
Content and Records Management Unstructured Data
Security and Identity Management
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Unstructured Data A Significant Risk
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Critical Success Factor Connecting Record
Policies to Technology

• Establish Retention Policies for Information and
  Records
• Create the technology infrastructure to support
  Records and Retention Management Platform across
  the Enterprise

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Reducing the eDiscovery Burden
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Base Your Records Retention Policies on Best
Practices

• Capture information from the right people to
  design policies that support business and
  regulatory requirements
• Apply retention policies to all content across
  multiple repositories, not only records
• Dont retain more content than is necessary
• Apply policies consistently and universally
• Centralize policy administration and disposition
  processing
• Apply legal holds promptly and universally to
  minimize user disruption

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Connecting Record Policies to Technology
Records Policies
Central Policy Management
Universal RecordsManagement
Discovery Services
FederatedElectronicRepositories
PhysicalRecordsManager
NotificationEngine
RecordsManager
EnterpriseContentManagement
Data Warehouse
EnterpriseApplications
Database
Mainframes
Desktops
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Final Considerations
Are you driving your companys information
management strategy for regulatory compliance and
litigation readiness?
Knowledge
Do you have a long-term vision to reduce reliance
on external counsel and prepare for future
regulatory requirements?
Vision
Are you working with your IT staff to deploy a
technology platform that will make your vision a
reality?
Technology
Source http//www.appliedlearninglabs.com/solutio
ns/opexcell.html
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• John Patzakis, Esq.
• Vice Chairman and Chief Legal Officer
  Guidance Software

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3 Key Legal Requirements Related to Records
Management

• 1. Need to Actively Enforce Existing Policies
• 2. Need to Execute Timely and Effective
  Litigation Holds to Override Retention Procedures
• 3. Need for Documentation and Transparency of
  eRecords Enforcement Efforts and Litigation Holds

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E-Records Retention Enforcement and The Law

• 1. Enforcement Using a Systemized and Objective
  Process
• -Samsung Electronics v. Rambus, 439 F.Supp.2d
  524 (E.D. Va. 2006), (Court finds records
  management policy applied in bad faith and in a
  non-systemic manner)
• -Active Enforcement is Key To Establishing
  Routine Operation and Process Defensibility
• 2. Must Document and Report eRecords Enforcement
  Activity
• -Samsung Electronics v. Rambus, (Rambus kept no
  records of the kinds of documents that were
  destroyed, or the parameters for such
  destruction)
• 3. Purging of Records Pursuant to Established
  Policy Must Be Overriden in Face of Duty to
  Preserve
• -Broccoli v. Echostar Communications, 229 F.R.D.
  506 (D. Md. 2005)

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Safe Harbor Only Possible with a Process

• Rule 37(f) No Penalties for Deleting ESI due to
  Routine Operation of IT Systems, and if
  Reasonable Preservation Steps Taken
• Must be Due to Routine Operation and in Good
  Faith
• Procedures Must be Established, Documented and
  Operational
• Systemized Framework For Early Attention
  (Litigation Hold) Must be in Place
• Caveat --- Committee Note A party is not
  permitted to exploit the routine operation of an
  information system to thwart discovery
  obligations by allowing that operation to
  continue in order to destroy (relevant ESI).

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Court Scrutiny of E-Discovery Collection Process

• In re NTL, Inc. Securities Litigation, 2007 WL
  241344 (S.D.N.Y. Jan. 30 2007)
• Although NTL sent out hold memos in March and
  June 2002 . . . those hold memos were not
  sufficient, since they subsequently were ignored.
  . . The evidence, in fact, is that no adequate
  litigation hold existed.
• Samsung Electronics v. Rambus, 439 F.Supp.2d 524
  (E.D. Va. 2006)
• "It is not sufficient, however, for a company
  merely to tell employees to 'save relevant
  documents,' ... this sort of token effort will
  hardly ever suffice."
• court faults the lack of specificity in defining
  what documents would be relevant to litigation
• Wachtel v. HealthNet, 2006 WL 3538935 (D.N.J.)
  Court criticizes HealthNets utterly inadequate
  eDiscovery process where paralegal merely emails
  preservation notifications

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Would Your Organizations eDiscovery Search and
Collection Efforts Withstand This Scrutiny?

• Peskoff v. Ferber --- F.R.D. ----, 2007 WL 530096
  (Feb. 21, 2007 D.D.C.)
• "Once the search is completed...Defendant must
  also file a statement under oath by the person
  who conducts the search, explaining how the
  search was conducted, of which electronic
  depositories, and how it was designed to produce
  and did in fact produce all of the emails I have
  just described. I must insist that the person
  performing the search have the competence and
  skill to do so comprehensively. An evidentiary
  hearing will then be held, at which I expect the
  person who made the attestation to testify and
  explain how he or she conducted the search, his
  or her qualifications to conduct the search, and
  why I should find the search was adequate.

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Preservation Only Required For Relevant Data

• Clearly no duty to preserve every shred of
  paper, every e-mail or electronic document, and
  every backup tapeSuch a rule would cripple large
  corporations. Zubulake v. UBS Warburg LLC, 220
  F.R.D. 212, 217 (S.D.N.Y. 2004)
• This concept is reflected in the New Federal
  Rules (FRCP). Committee Notes endorse narrowly
  tailored preservation and the need to balance
  between the competing needs to preserve relevant
  evidence and to continue routine operations
  critical to ongoing activities (Note to Rule
  26(f).)
• Rule 26(f) also invokes the Manual for Complex
  Litigation (4th) 40.25(2) Which Provides for
  Targeted Collection Based Upon Keywords, Date
  Ranges, File Types and Specified Custodians

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Recent Cases Support Targeted ESI Search and
Collection

• Flexys Americas v. Kumho Tire 2006 WL 3526794
  (N.D. Ohio)
• Court limits Search to Specific Custodians, Time
  Frames and Keywords
• Treppel v. Biovail Corporation, 233 F.R.D. 363
  (S.D.N.Y. 2006).
• Court defined search strategies are appropriate
  in cases involving ESI. If meet and confer
  efforts are refused, producing party should
  proceed with reasonable search criteria with a
  clear record of opponents refusal.
• Caveat Without an Established Process with the
  Right Technology, Collection Efforts Will Be
  Overly Broad, Resulting in Substantial Back End
  Costs (processing, excess data hosting and
  review).

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About Guidance Software

• Founded 1997. (NASD GUID)
• Largest provider of computer investigation
  software, training and services
• Over 24,000 users of EnCase computer forensic
  software worldwide
• More than 3,800 trained annually
• Over 350 of Global 2000, including over 100 of
  the Fortune 500, use EnCase Enterprise software
• Headquartered in Pasadena, CA
• Offices in SF, DC, NY, Houston, Chicago (opening
  Q1 2007) and the UK

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• Key Cases That Address Process Defensibility
  and EnCase
• Sanders v. State (Texas), 191 S.W. 3rd 272
  (Tex.App., 2006) Cert. Denied, --- S.Ct.---,
  2007 WL 91482 (U.S.), (Court takes Judicial
  Notice of the reliability of EnCase, finding
  EnCase is a field standard for forensic
  computer examination treatises about EnCase have
  been published.)
• Krumwiede v. Brighton Assocs., L.L.C., 2006 WL
  1308629 (N.D. Ill. May 8, 2006) Court finds that
  eDiscovery Consultant created a forensically
  valid copy of the laptop's hard drive using
  EnCase software. This allowed the consultant to
  examine the metadata and the content of the files
  on the computer...
• Williford v. State (Texas), 127 S.W.3d 309
  (Tex.App. 2004).
• State (Ohio) v. Cook, 777 N.E.2d 882 (Ohio App.
  2002)
• Used by the SEC, FBI, Secret Service, FTC,
  foreign governments, state and local law
  enforcement, etc.
• See, e.g., United States v. Shirazi,  2006 WL
  1155945 (N.D.Ill., May 1, 2006)

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Key Benefits of The EnCase Enterprise Process

• Order of magnitude cost savings. EnCase
  eDiscovery enables an in-house process that is
  highly efficient due to its scalability, ability
  to cull at the point of collection, and
  integrated processing capabilities.
• Consistent and systemic enterprise-wide
  processes. Enables implementation of repeatable
  enterprise-wide eDiscovery process. This
  facilitates compliance with the new Federal
  Rules.
• Judicial acceptance of EnCase technology.
  Company can count on judicial approval of their
  defensible process for collection and
  preservation of ESI. EnCase Enterprise is also
  the Industry Standard for Internal Investigations
  involving ESI.
• Ability to Enforce eRecords Retention Polices at
  the Desktop Level on a Global Basis

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Further Resources
Request new white paper on eDiscovery Collection
Best Practices Legal_at_EnCase.com eDiscovery
Resources www.kenwithers.com www.thesedonaconfere
nce.org Digital Discovery e-Evidence Pike
Fisher http//ddee.pf.com
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Infusing Records Policy into TechnologyApril
18, 2007Presented by www.jordanlawrence.com
636.821.2222