Structuring your Information Management to Ensure Litigation Readiness

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Structuring your Information Management to Ensure
Litigation Readiness
Julian Ackert, Principal Washington DC John
Forsyth, HBOS Edinburgh Andrew Haslam,
Consultant London
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Agenda

• What is e-Disclosure Preparedness and why is it
  so important now?
• What are global corporations doing today in
  response?
• How has this environment impacted US law firms?
• How has this environment impacted UK firms to
  date?
• How might UK firms be impacted in the future?

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Challenges of Electronic Data

• Exponential Volume
• Metadata
• Unknowns

• Cost and risk in determining, Have we produced
  what we need to?

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Drivers in electronic discovery

• Rules
• New laws, i.e. changes to the CPR, FRCP
• Complexity
• Increased complexity and dependency
• Increased use of computer systems
• Increased digital-only existence of data
• Volumes
• Bigger storage volumes

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The Trend in U.S. Court Decisions

• Company said they located and searched all
  relevant backup tapes, but had not.
• 1.4 billion in damages, adverse inference
  instruction, default judgmentColeman v. Morgan
  Stanley
• Employees deleted relevant e-mail, IT continued
  to rotate and overwrite backup tapes.
• 29 million damages, adverse inference (in
  ordinary employment case)Zubulake v. UBS Warburg
• Executives did not print e-mail subject to
  litigation hold, IT continued 60-day purge
• 2.75 million fine, executives precluded from
  testifying US v. Philip Morris USA

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What is Litigation Readiness

• A better fence at the top of the cliff
• Sound RIM as a good efficient business practice
• Becoming essential for certain firms i.e. SOX,
  FSA, Basel 2 and MiFID
• May be part of due diligence in a MA situation

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Why Litigation Readiness?

• Regulatory and Compliance drivers
• Litigation issues
• Data Protection problems
• General information management Best Practice"

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Corporate Strategies for Litigation Readiness

• Profile your systems and data
• Reduce the pool of backup/archival media
• Extend records/retention policy to ESI
• Establish Preserve Now team and process
• Streamline litigation hold process
• Manage outside counsel and vendors
• Litigation Process Outsourcing
• Changing the Corporate Architecture

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Emerging best practices in the US
Emerging best practices in the US

• Be first to put a reasonable plan in place, to
  your advantage, then cost shift
• Issue litigation hold quickly, narrowly, and
  often
• Proactively involve IT at a level that gets
  results, pay attention to spoliation via
  maintenance processes/ programs
• Preserve quickly (anticipation of lawsuit), on
  a rolling basis
• Preserve metadata
• Collect accessible data, broadly, cull later
• Sample to reduce population of documents sent to
  review
• Conceptual document review tools

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Efficiencies in e-disclosure
Original Volume (and Cost)
Scope
Preserve
Gather
Process
Host
Review
Present
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The Challenge for Outside Counsel

• Understand the details of client IT systems
• Think global
• Scope of data locations, volume, timeframe,
  retention
• Preservation options, and cost to access, cull
  and produce
• Preserve data/metadata upon anticipation
• Employee litigation holds should be robust, but
  may be insufficient.
• IT should proactively preserve from a system
  standpoint
• Metadata, backup tapes, what is reasonable?
• Develop CMC strategy for negotiating
• Defensibility of preservation
• Accessibility/inaccessibility for collection
• Timeframe/format of production

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Discussion
Discussion

• How has this environment impacted UK firms to
  date?
• How might UK firms be impacted in the future?

How has this environment impacted UK firms to
date? How might UK firms be impacted in the
future?
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Discussion
Questions?
How has this environment impacted UK firms to
date? How might UK firms be impacted in the
future?