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2- 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
3Infusing Records Policy into TechnologyApril
18, 2007Presented by Association of
Corporate Counselwww.acc.com
4- 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
5Legal 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
6- 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
7Records 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
8Assessment 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
9- 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
10Infusing Policy Into Technology
Enforcement Solutions
11Hold 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
12Jordan
- 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
13- Daniel Cooperman
- SVP, General Counsel and Secretary
- Oracle Corporation
14Oracle Corporation Key Facts
15Evolution of General Counsels Role
Source General Counsel Roundtable, 2006
16A Pressure Cooker Environment
17A 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
18Build 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
19Unstructured Data A Significant Risk
20Critical 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
21Reducing the eDiscovery Burden
22Base 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
23Connecting Record Policies to Technology
Records Policies
Central Policy Management
Universal RecordsManagement
Discovery Services
FederatedElectronicRepositories
PhysicalRecordsManager
NotificationEngine
RecordsManager
EnterpriseContentManagement
Data Warehouse
EnterpriseApplications
Database
Mainframes
Desktops
24Final 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
25- John Patzakis, Esq.
- Vice Chairman and Chief Legal Officer
Guidance Software
263 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
27E-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)
28Safe 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).
29Court 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
30Would 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.
31Preservation 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
32Recent 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).
33About 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
34- 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)
35Key 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
36Further 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
37Infusing Records Policy into TechnologyApril
18, 2007Presented by www.jordanlawrence.com
636.821.2222