Information Governance and Legal Functions Discussion

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Chapter Eight (8): Information Governance and Legal Functions: According to the authors, Smallwood, Kahn, and Murphy, IG is perhaps one of the functional areas that impact legal functions most. Failure to meet them could be literally put an organization out of business or land executives in prison. Privacy, security, records management, information technology (IT), and business management functions are very important. However, the most significant aspect of all of these functions relates to legality and regulatory compliance from a critical perspective.

Q1: When we take a close look at the author’s point of view, under the Federal Rules of Civil Procedures (FRCP) amendments dating back to 1938 there has been governance and the discovery of evidence in lawsuits and other civil cases. Please name and briefly discuss the three (3) reasons why corporations must proactively manage the e-discovery process?

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ITS 833 – INFORMATION GOVERNANCE Chapter 9 Information Governance and Records Information Management Functions 1 CHAPTER GOALS AND OBJECTIVES  Understand the business necessity for records management and electronic records management  2 Records Management  Text gives definitions of records from ISO and ARMA. We can infer from these that records are information that is captured during the course of doing business, such as contracts, business correspondence, HR files, etc., often representing legal obligations for the company.  Not all documents are formal business records by legal definition. 3 E-Records Management  With the amount of information rapidly increasing due to the large storage capacity and volume of electronic records being generated, effective e-records management (ERM) is critical.  Includes both electronic records, as well as the electronic management of non-electronic records (paper, DVDs, tape, audiovisual, etc.)  Effective ERM is even more critical in highly regulated businesses.  Must control and manage these records throughout the records life cycle – from creation to destruction.  Challenges include the rapidly increasing volume of data and changes in IT (different archival media), making it difficult to retrieve and view – necessitating a long-term digital preservation (LTDP) plan. 4 Records Management Drivers  Drivers for effective RM include:  Increased government oversight and industry regulation.  Changes in legal procedures and requirements during civil litigation.  IG awareness (developing RM programs within IG practices that address retention periods, for example).  Business continuity concerns – recoverability of vital records . 5 Challenges to RM  Changing and increasing regulations  Maturing IG requirements within the organization  Managing multiple retention and disposition schedules  Compliance costs/limited staff  Changing information delivery platforms  Security concerns  Dependence on the IT department or provider  User assistance and compliance 6 Benefits of ERM  Implementing ERM is a significant investment sometimes without a clear ROI.  Benefits, however, include:  Office space savings  Office supplies  Search/retrieval times savings, increasing confidence and decision making  Improved capabilities for enforcing IG over business documents and records  Reduce risk of compliance actions or legal consequences  Improved worker productivity  Improved records security  Improved ability to demonstrate legally defensible RM practices 7 Intangible Benefits  Controls the creation and growth of records  Assimilates new records management technologies  Safeguards vital information  Preserves corporate memory  Fosters professionalism in running the business 8 1st Step: Inventorying E-Records  Inventorying must be done sooner, rather than later.  Tracking them all down is the challenge (distributed among systems, including shadow copies)  Information owners may not trust a new RM program – getting them to cooperate may be difficult  Among the other objectives on page 156, objectives to inventorying include:  Provide a survey of the existing electronic records situation that leads to a needs assessment for future actions  Identify and describe the e-records holdings  Identify obsolete electronic records  Determine storage needs for active and inactive records 9 Records Inventorying Steps 1. Define the inventory’s goals 2. Define the scope of the inventory 3. Obtain top management support 4. Decide on the information to be collected 5. Prepare an inventory form 6. Decide who will conduct the inventory 7. Learn where the files are located 8. Conduct the inventory (surveys, interviews, direct observation) 9. Verify and analyze the results – tie findings to the goals and the value of the records (Records appraisal) 10 Records Appraisal  Goal is to determine the value to the organization in order to determine retention schedule  Records can have:  Historical value  Administrative value  Regulatory or statutory value  Legal value  Fiscal value  “Other” 11 2nd Step: Develop Records Retention Schedule  Retention schedules provide consistency in the retention and disposition process.  Develop an information map (where created, where it resides, path it takes – who uses it)  Information included in a retention schedule:  Title of the records series (group of related records used and filed as a unit)  Description of the records series  Responsible office  Disposal decision (destroy, transfer, reconsider at a later date)  Disposal timing  Event that triggers the action  Dates schedule was signed  Legal citations or a link to the citation 12 Records Series Identification and Classification   Case Records  Have a beginning and an end, but are added to over time  Have titles that include names, dates, numbers, or places (i.e. mortgages, contracts) Subject Records  Information relating to specific or general topics, arranged according to content  Records relative to laws/statutes have longer term schedules (often kept until “superseded or obsolete”)  Records that relate to “routine operations” will have shorter retention periods 13 General Principles to Retention Scheduling   Must include all records, regardless of media or location Legal and regulatory requirements must be reflected in the process (i.e. FOIA)  Records of historical value must be preserved  Should reflect business needs of users or compliance requirements  Optimize use and minimize cost by retaining a minimum amount of time  Must be proactive planning process (set up and standardized in advance)  Keep in a protected repository to maintain integrity  Periodic reviews when changes occur, or annually/biannually  Senior management must approve and sign off on the schedule  Continuous updating   Classification and records scheduling are linked Senior management must be able to review the schedule  Document the scheduling process  Similar records should have similar retention schedules 14 E-Mail Retention  Not all are formal records – only those that relate to a transaction or business-related event. Records that may come into dispute in litigation.  It’s a record if…..  The e-mail documents a transaction or the progress toward an ultimate transaction where anything of value is exchanged between two or more parties  The e-mail documents or provides support of a business activity occurring that pertains to internal corporate governance policies or compliance  The e-mail message documents other business activities that may possibly be disputed in the future  Retention periods from 90 days to as long as seven years  Legal requirements (research yours) drive the retention period 15 The End Copyright@ Geanie Assante 2019 16 ITS 833 – INFORMATION GOVERNANCE Chapter 8 IG and Legal Functions Dr. Geanie Asante Copyright@Geanie Asante 2019 1 CHAPTER GOALS AND OBJECTIVES ➢ 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? Copyright@Geanie Asante 2019 ➢ Outline the holding of Zubulake v. UBS ➢ ➢ Know the facts and how it affects IG and e-discovery What are currently e-discovery techniques 2 CHAPTER GOALS AND OBJECTIVES…Continued ➢ What is the e-discovery reference model? ➢ What is it used for? ➢ How does IG impact EDiscovery? ➢ What is a record retention policy? ➢ What are the benefits of a record retention policy? Copyright@Geanie Asante 2019 ➢ 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? 3 Key Legal Processes Impacted by IG ➢ E-Discovery ➢ Legal Hold Notification ➢ Defensible Disposition ➢ Use of new technology to comply with E-discovery Copyright@Geanie Asante 2019 4 E-DISCOVERY “Discovery”: Pretrial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence 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. 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, 1937, transmitted to Congress on January 3, 1938, and effective September 16, 1938. Wikipedia Copyright@Geanie Asante 2019 5 RELEVANT 2006 CHANGES TO THE RULES OF CIVIL PROCEDURE ➢ Revisions applicable to preservation of electronic records in the litigation process ➢ Revisions applicable to the discovery of electronic records in the litigation process Copyright@Geanie Asante 2019 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 6 FRCP AMENDED 2006 ARE APPLICABLE TO WHAT? ➢ ➢ ➢ ➢ 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 Copyright@Geanie Asante 2019 7 Consider the Impact of “Big Data” ➢ 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 Copyright@Geanie Asante 2019 8 REVISED FEDERAL RULES OF CIVIL PROCEDURE FRCP 1 – Scope and Purpose: To secure the just, speedy, and inexpensive determination of every action. (Volonino and Reddpath, e-Discovery for Dummies, January 20, 2018) How does this involve IG ➢ ? IG must make sure information is organized in a way that it can be accessed quickly Copyright@Geanie Asante 2019 9 FRCP 1 Rule 1. Scope and Purpose 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. Copyright@Geanie Asante 2019 10 REVISED FEDERAL RULES OF CIVIL PROCEDURE FRCP 16 – Pretrial Conferences, How does this involve IG Scheduling; Management. ➢ Court expects IT and Guidelines for preparing for and network literacy of both managing the e-discovery process. sides, so that pretrial (Volonino and Reddpath, e-Discovery for Dummies, conferences regarding January 20, 2018) discoverable evidence are productive Copyright@Geanie Asante 2019 11 FRCP 16 Rule 16. Pretrial Conferences; Scheduling; Management (a) PURPOSES OF A PRETRIAL CONFERENCE. In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as: (1) expediting disposition of the action; (2) establishing early and continuing control so that the case will not be protracted because of lack of management; (3) discouraging wasteful pretrial activities; (4) improving the quality of the trial through more thorough preparation; and (5) facilitating settlement. Subsections of FRCP 16 omitted from this slide (f) SANCTIONS. (1) In General. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party or its attorney: (A) fails to appear at a scheduling or other pretrial conference; (B) is substantially unprepared to participate—or does not participate in good faith—in the conference; or (C) fails to obey a scheduling or other pretrial order. (2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses—including attorney's fees—incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust. NOTES Copyright@Geanie Asante 2019 12 REVISED FEDERAL RULES OF CIVIL PROCEDURE FRCP 26 – Duty to Disclose; General Provisions Governing Discovery (Volonino and Reddpath, e-Discovery for Dummies, (accessed January 20, 2018) How does this involve IG ? ➢ Protects litigants from costly and burdensome discovery requests, given certain guidelines Copyright@Geanie Asante 2019 13 FRCP 26 Rule 26. Duty to Disclose; General Provisions Governing Discovery Rule 26 (3)(b)(2) Limitations on Frequency and Extent. (A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36. (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1). Copyright@Geanie Asante 2019 14 REVISED FEDERAL RULES OF CIVIL PROCEDURE 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, (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 Copyright@Geanie Asante 2019 15 FRCP 26(A)(1)(C) (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. Copyright@Geanie Asante 2019 16 REVISED FEDERAL RULES OF CIVIL PROCEDURE 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, (accessed January 20, 2018) How does this involve IG ➢ IG must justify why this ESI is not reasonably accessible Copyright@Geanie Asante 2019 17 FRCP 26 (b)(2)(B) FRCP 26 (b)(2)(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. FRCP 26(b)(2)(C) (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1) Copyright@Geanie Asante 2019 18 REVISED FEDERAL RULES OF CIVIL PROCEDURE 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, (accessed January 20, 2018) How does this involve IG  IG should have clear rules for disposing of information that you should not have Copyright@Geanie Asante 2019 19 FRCP 26 (b)(5)(B) 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. Copyright@Geanie Asante 2019 20 REVISED FEDERAL RULES OF CIVIL PROCEDURE 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, (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 Copyright@Geanie Asante 2019 21 FRCP 26(f) FRCP 26(f) Conference of the Parties; Planning for Discovery. (1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). (2) Conference Content; Parties’ Responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person. (3) Discovery Plan. A discovery plan must state the parties’ views and proposals on: (A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made; (B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues; (C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced; (D) any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502; (E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c). (4) Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule: (A) require the parties’ conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and (B) require the written report outlining the discovery plan to be filed less than 14 days after the parties’ conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference. Copyright@Geanie Asante 2019 22 REVISED FEDERAL RULES OF CIVIL PROCEDURE FRCP 33 – Interrogatories to parties: Gives definitions of business erecords that are discoverable and the right of opposing parties to request and access them. (Volonino and Reddpath, e-Discovery for Dummies, January 20, 2018) How does this involve IG ➢ IG must have clear policy for retention and justifiable procedure for destruction Copyright@Geanie Asante 2019 23 FRCP 33-Interrogatories to Parties (a) IN GENERAL. (1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1) and (2). (2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time. (b) ANSWERS AND OBJECTIONS. (1) Responding Party. The interrogatories must be answered: (A) by the party to whom they are directed; or (B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party. (2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. (3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath. (4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure. (5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections. (c) USE. An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence. (d) OPTION TO PRODUCE BUSINESS RECORDS. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries. Copyright@Geanie Asante 2019 24 REVISED FEDERAL RULES OF CIVIL PROCEDURE 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, (accessed January 20, 2018) How does this involve IG ➢ IG must have good legally defensible document management program Copyright@Geanie Asante 2019 25 FRCP 37 - Failure to Make Disclosures or to Cooperate in Discovery; Sanctions FRCP 37(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. Copyright@Geanie Asante 2019 26 REVISED FEDERAL RULES OF CIVIL PROCEDURE 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 erecords be accessible without undue difficulty. (Volonino and Reddpath, e-Discovery for Dummies, (accessed January 20, 2018) How does this involve IG  IG must make sure information is organized and identified Copyright@Geanie Asante 2019 27 FRCP 34 Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes FRCP 34 (a) IN GENERAL. A party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (B) any designated tangible things; or (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. (FRCP 34 (b) PROCEDURE. (1) Contents of the Request. The request: (A) must describe with reasonable particularity each item or category of items to be inspected; (B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and (C) may specify the form or forms in which electronically stored information is to be produced. FRCP 34(b) (2) Responses and Objections. (A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or — if the request was delivered under Rule 26(d)(2) — within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. (B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response. 28 Copyright@Geanie Asante 2019 FRCP 34 (Continued) Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes FRCP 34 (b)(2) D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form— or if no form was specified in the request—the party must state the form or forms it intends to use. (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. 29 Copyright@Geanie Asante 2019 Zubulake v. U.B.S. Warburg 22 Ill.217 F.R.D. 309, 13 ILRD 578, 2003 ILRC 1815, 91 FEP Cases 1574 (S.D.N.Y. 2003). OPINION: The defendant was ordered to produce, at its own expense, all responsive email existing on its optical disks, servers, and five backup tapes as selected by the plaintiff. The court would only conduct a cost-shifting analysis after the review of the contents of the backup tapes. After the results of the sample restoration, both parties wanted the other to fully pay for the remaining backup email. The sample cost the defendant about $19,003 for restoration but the estimate costs for the production was $273,649, including attorney and paralegal review costs. After applying the seven–factor test, it determined that the plaintiff should account for 25 percent of the restoration and searching costs, excluding attorney review costs. ➢ SUMMARY OF FACTS: In an employment discrimination suit against her former employer, Laura Zubulake, the plaintiff, argued that key evidence was located in various emails exchanged among employees of UBS, the defendant. Initially, the defendant produced about 350 pages of documents, including approximately 100 pages of email. However, the plaintiff alone had produced approximately 450 pages of email correspondence. The plaintiff requested USB to locate the documents that existed in backup tapes and other archiving media. ➢ The defendant, arguing undue burden and expense, requested the court to shift the cost of production to the plaintiff. The court stated that whether the production of documents is unduly burdensome or expensive "turns primarily on whether it is kept in an accessible or inaccessible format". The court concluded that the issue of accessibility depends on the media on which data are stored. It described five categories of electronic repositories: (1) online data, including hard disks; (2) near-line data, including optical disks; (3) offline storage, such as magnetic tapes; (4) backup tapes; (5) fragmented, erased and damaged data. The last two were considered inaccessible, that is, not readily available and thus subject to cost-shifting. The court, then discussing the Rowe decision (the balance test), concluded that it needed modification and created a new seven-factor test. ➢ Zubulake v. U.B.S. Warburg 22 Ill.217 F.R.D. 309, 13 ILRD 578, 2003 ILRC 1815, 91 FEP Cases 1574 (S.D.N.Y. 2003)….continued ZUBULAKE IV: During the restoration effort, as described in the court's prior opinions (see Zubulake I and III), the parties learned that some backup tapes were no longer available. The parties also concluded that relevant emails created after the initial proceedings had been deleted from UBS's email system and were only accessible on backup tapes. The plaintiff then sought an order requiring UBS to pay for the total costs of restoring the remaining backup tapes. In addition, Laura Zubulake sought an adverse inference instruction against UBS and the costs for redeposing some individuals due to the destruction of evidence. The court found that the defendant had a duty to preserve evidence since it should have known that it would be relevant for future litigation. However, the court concluded that the plaintiff failed to demonstrate that the lost evidence supported the adverse inference instruction claim. The court ordered the defendant to cover the costs as claimed by the plaintiff. Zubulake v. U.B.S. Warburg 22 Ill.217 F.R.D. 309, 13 ILRD 578, 2003 ILRC 1815, 91 FEP Cases 1574 (S.D.N.Y. 2003)….continued ➢ ZUBULAKE V: Here, the court concluded that UBS had failed to take all necessary steps to guarantee that relevant data was both preserved and produced, and granted the plaintiff's motion for sanctions. Specifically, the court ruled that the jury would be given an adverse inference instruction, sought in Zubulake IV, due to the deleted evidence (emails and tapes) and inability to recover key documents during the course of the case. Furthermore, it ruled that UBS was accountable for paying the costs of any depositions or re-depositions required by its late production of email, and that UBS reimburse plaintiff for the costs of the motion. Laura Zubulake contended that UBS, which recovered some of the deleted relevant emails, prejudiced her case by producing recovered emails long after the initial document requests. Additionally, parts of important communication exchanged between key parties was never recovered, including an email that would reveal a relevant conversation about the employee. ➢ In addition, the court noted that the defense counsel was partly to be blamed for the document destruction because it had failed in its duty to locate and preserve relevant information. In addressing the role of counsel in litigation, the court stated that "[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched". Specifically, the court concluded that attorneys are obligated to ensure all relevant documents are discovered, retained, and produced. Further, the court suggested that litigators must guarantee that relevant documents are preserved by instituting a litigation hold on key data, and safeguarding archival media. ➢ Finally, the court concluded that the defendant deliberately acted in destroying relevant information and failing to follow the instructions and demonstrate care on preserving and recovering key documents. As a result, Judge Shira Scheindlin ordered an adverse inference instruction against UBS Warburg. In the final instructions to the jury the Court instructed in part, "[i]f you find that UBS could have produced this evidence, the evidence was within its control, and the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would have been unfavorable to UBS." In addition, the court awarded plaintiff monetary sanctions for reimbursement of costs of additional re-depositions and of the motion leading to this opinion, including attorney fees. The jury found in Zubulake's favor on both claims awarding compensatory and punitive awards. ➢ Zubulake v. U.B.S. Warburg 22 Ill.217 F.R.D. 309, 13 ILRD 578, 2003 ILRC 1815, 91 FEP Cases 1574 (S.D.N.Y. 2003)….Electronic Discovery Issues The case has set important practices relating to both the legal and technical aspects of electronic discovery, as the relevant communication among interested parties was available in digital form. The main issues raised were: ➢ The scope of a party's duty to preserve digital evidence during the course of litigation or even when first acknowledged that a chance of litigation exists; ➢ Lawyer's duty to monitor their clients' compliance with electronic data preservation and production (litigation hold); ➢ Data sampling, so that knowledge about costs and effectiveness of the recovering process are known in advance; ➢ The ability for the disclosing party to shift the costs to the requesting party of recovering inaccessible media (backup tapes, for example); ➢ The imposition of sanctions for the spoliation of digital evidence. Zubulake v. U.B.S. Warburg 22 Ill.217 F.R.D. 309, 13 ILRD 578, 2003 ILRC 1815, 91 FEP Cases 1574 (S.D.N.Y. 2003) References ➢ Cohen, Adam I.; Lender, David J. (2003). Electronic Discovery: Law and Practice. Aspen Publishers Online, 2003. ISBN 0-7355-3017-3. ➢ Marchetta, Anthony J.; Scordo, John P. (Dec 2004). "The Duty To Preserve Backup Tapes After Zubulake V" (PDF). Corporate Counsel. Retrieved 2010-02-20. ➢ Sautter, Ed (Oct 2005). "The New Rules on E-disclosure". New Law Journal (7198). ➢ Iqbal, Mohamed (Jul 2005). "The New Paradigms of E-discovery and Cost-shifting". Defense Counsel Journal (45). ➢ Bauccio, Salvatore J. (2007). "The E-Discovery: Why and How E-mail is Changing the Way Trials Are Won and Lost". Duquesne Law Review (72). ➢ Scheindlin, Shira. "Judge Scheindlin Interview on Records and Compliance Management". ARMA 2006 International Conference and Expo. Podcast. Retrieved 2010-02-20. ➢ "Electronic Discovery Law". website. Retrieved 2010-02-20. E-DISCOVERY REFERENCE MODEL Visual Planning Tool Created by to assist in identifying and clarifying the stages of the e-discovery process. Copyright@Geanie Asante 2019 35 7 Steps in the E-Discovery Process Create 1 and retain ESI according to an enforceable electronic records retention policy and electronic records management (ERM) program. Enforce the policy and monitor compliance with it and the ERM program. 2 Identify the relevant ESI, preserve any so it cannot be altered or destroyed, and collect all ESI for further review. Copyright@Geanie Asante 2019 3 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. 4 Review and analyze the filtered ESI for privilege because privileged ESI is not discoverabl e, unless some exception kicks in. 6 5 Produce the remaining ESI, after filtering out what’s irrelevant, duplicated, or privileged. Producing ESI in native format is common. 7 Clawback Present at the ESI that trial if your you case hasn’t disclosed to settled. the opposing Judges have little to no party that patience you should have with lawyers filtered out, who appear but didn’t. before them not Clawback is not understandi ng eunusual, discovery but you and the ESI have to of their work at clients or getting clawback the opposing side. approved, and the court may deny it. 36 GUIDELINES FOR E-DISCOVERY PLANNING Implement an IG Program Develop and Execute ediscovery plan Leverage Technology Copyright@Geanie Asante 2019 Inventory ESI Implement a legal bold policy that is enforceabl e, auditable and legally defensible Create and Implement a comprehensive records retention policy-including email 37 IG IMPACT ON E-DISCOVERY 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 ➢ ➢ ➢ ➢ Copyright@Geanie Asante 2019 38 The Legal Hold Process…. 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. 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 Copyright@Geanie Asante 2019 39 LEGAL HOLD NOTIFICATION 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 Copyright@Geanie Asante 2019 40 DEFENSIBLE DISPOSITION OF INFORMATION ➢ ➢ ➢ ➢ ➢ ➢ 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 Copyright@Geanie Asante 2019 41 DESTRUCTIVE RETENTION PROGRAM 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. Copyright@Geanie Asante 2019 42 What Can I Do To Make EDiscovery Easier? 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 Copyright@Geanie Asante 2019 43 PREDICTIVE CODING 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 Copyright@Geanie Asante 2019 44 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). 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. Copyright@Geanie Asante 2019 45 TECHNOLOGY-ASSISTED REVIEW (Computer-Assisted Review) • • • 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. Copyright@Geanie Asante 2019 46 DEFENSIBLE DISPOSITION 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 Copyright@Geanie Asante 2019 47 DEFENSIBLE DISPOSITION…continued ➢ 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 Copyright@Geanie Asante 2019 48 8 STEPS TO DEFENSIBLE DISPOSITION Define a reasonable diligence process 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 Copyright@Geanie Asante 2019 49 RECORD RETENTION 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 Copyright@Geanie Asante 2019 50 Retention Policy ➢ 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 Copyright@Geanie Asante 2019 51 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 Copyright@Geanie Asante 2019 52 THE END Copyright@Geanie Asante 2019 53
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Management of e-discovery
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Management of e-discovery
The e-discovery process refers to the practice that is adopted in seeking, locating,
securing and searching electronic data to use it as evidence in either a criminal or a civil case. It
is necessary that an organization manages its e-discovery process for the following reasons.
Managing the e-discovery process facilitates litigation preparedness for an organization.
The effective running of an organization involves a large number of functions and engagements
which may include getting into a contract with other companies and individuals (Nogueira et al,
2017). During such processes, errors may likely occur which results in damages to one or both
the parties involved in the engagement. The effective management of a company’s e-discovery
makes it possible to put up a defense. As a result, it is possible for a company to avoid any
charges as the e-discovery facilitated the preparedness of litigation.
Secondly, managing an e-discovery allows a company to manage the effective migration
of data. The high amount of data companies generally require to be stored securely. The cloud is
one of the most common areas when companies store their data (Nogueira et al, 2017). The
effective management of an e-discovery means that an organization can move its data from the
company servers to the cloud. That way, the data is available for futu...

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