1003: Take Control of Discovery and Review Costs in the Era of Big Data

Transcription

1 ACC s 2013 Annual Meeting Wednesday, October 30 11:00 AM - 12:30 PM 1003: Take Control of Discovery and Review Costs in the Era of Big Data Nick Kriegel Assistant General Counsel Safety National Ron Peppe Vice President Legal & Human Resources Canam Steel Corporation Marty Provin Executive Vice President Jordan Lawrence This material is protected by copyright. Copyright 2013 various authors and the Association of Corporate Counsel (ACC). Materials may not be reproduced without the consent of ACC or the copyright holder. Reprint permission requests should be directed to ACC s Legal Resources Department at legalresources@acc.com 1 of 26

2 Faculty Biographies Session 1003 Nick Kriegel Nick Kriegel is an attorney who has worked for Safety National Casualty Corporation since 2006, and now serves as its assistant general counsel. A graduate of the University of Missouri with his Juris Doctorate and MBA, Mr. Kriegel has focused his career on insurance defense and insurance-related issues. In his role for his Company, Mr. Kriegel provides legal support for business and operations units, manages regulatory and intercompany reporting and oversees the management of litigation. Mr. Kriegel also serves as the custodian of Safety National's Document Retention and Destruction Program and is the lead coordinator for discovery and e-discovery issues faced by his Company. Ron Peppe Ron Peppe is vice president for legal and human resources for Canam Steel Corporation, and oversees legal, human resources and risk management issues for the company. Mr. Peppe previously served as vice president of law and technology for the Association of Corporate Counsel, and vice president and associate general counsel at Prudential Home Mortgage. Mr. Peppe is currently the co-chair of the ERISA subcommittee of ACC's Employment and Labor Law Committee. He previously served as co-chair of the ACC Environment and Sustainability Committee. Ron is a member of the City Council and previously served as Chairman of the School Board, of Falls Church, Virginia and was president of the Board of Education of Frederick County, Maryland. Mr. Peppe graduated from The Johns Hopkins University, earned a masters from The Johns Hopkins School of Advanced International Studies, and his JD from The University of Maryland School of Law. Marty Provin Marty Provin is executive vice president of Jordan Lawrence, a leading solution provider for records retention, data privacy and information governance. He has over 20 years of experience in information technology and governance. Mr. Provin joined Jordan Lawrence in 2003 and advises in-house counsel, compliance and privacy professionals in the areas of records management, data privacy and e- discovery and the confluence of technology in these areas. He plays a key role in helping companies develop effective, defensible and cost effective information governance programs that address information across all platforms and media. He is a certified information privacy professional (CIPP) and frequent contributor and speaker in the legal and privacy communities. Recent speaking events include; The Association of Corporate Counsel Privacy: The New Battleground for In-house, The 2 of 26

3 Society of Corporate Secretaries & Governance Professionals National Conference, the Twin Cities Privacy Retreat, Secure World and the ARMA International Conference. Most recently, Mr. Provin presented a privacy and ethics session - Key Challenges Facing In-house Counsel in 2013 at the International Association of Privacy Professionals Global Summit in DC. Prior to joining Jordan Lawrence in 2003, Mr. Provin spent 13 years in the technology industry where he worked with Fortune 500 Companies in developing solutions to manage workflow and increase efficiency. 3 of 26

4 Take%Control%of%Discovery%and% Review%Costs%in%the%Era%of%Big%Data% October%30,%2013% 4 of 26

5 LITIGATION COSTS % % 1"2010"Conference"on"Civil"Litigation"Duke"Law"school" 5 of 26

6 Reduce%Costs%&%Risks% % 1"2010"Conference"on"Civil"Litigation"Duke"Law"school" Ron%Peppe% Canam%Steel%CorporaHon%% Vice%President%Legal%&%% Human%Resources% Nick%Kriegel% Safety%NaHonal% Assistant%General%Counsel% Marty%Provin% Jordan%Lawrence% Execu;ve%Vice%President% CIPP/US% 6 of 26

7 Uncontrolled%Data%Growth% The%Real%Problem% 120% 100% 80% 60% 40% 20% Data%Growth% Cost%of%LiHgaHon% AWorney%Fee%Growth% Cost%per%GB%to%Collect% 0% 2005% 2006% 2007% 2008% 2009% 2010% 2011% 2012% 7 of 26

8 Deciding%to%Take%AcHon%% Securing%Support%&%Funding%% 8 of 26

9 Building%Your%Team%% Legal%Department% %DRDP%Team% ExecuHve%Management% Senior%Management% Internal%Stakeholders% External%Stakeholders% Determining%ObjecHves%% UPDATE OUR RETENTION SCHEDULE % 9 of 26

10 Determining%ObjecHves%% Determine%ObjecHves% 10 of 26

11 Determining%ObjecHves% Determine%ObjecHves% 11 of 26

12 Determining%ObjecHves%% LESS STUFF % Determining%ObjecHves%% HOW BIG IS THE PROBLEM?% WHAT DO WE HAVE?% WHAT MUST WE KEEP?% 12 of 26

13 The%Cornerstone% WHERE% PROCESSES% RETENTION% WHAT% Inventory% SENSITIVITY% How%Do%You%Get%Your%Inventory?% Engage%the%business% They%have%the%knowledge%% % 13 of 26

14 What% Accident and Incident Reporting Air Emissions and Test Reports Audit Reports Engineering Change Orders and Requests Environmental Performance Reports Export Documentation Material Safety Data Sheets OSHA Certificates Quality Control Records Safety Worker s Compensation Files Where% 14 of 26

15 Process% RetenHon% 15 of 26

16 SensiHvity% Troubleshoot,%Plan%and%Prepare% ESTABLISH%A%FRAMEWORK% CONTINUE%TO%INVOLVE%STAKEHOLDERS% COMMUNICATE% 16 of 26

17 Developing%the%Program% POLICY,%SCHEDULE,%AND%SMES% INFORMATION%SECURITY%AS%A%PARTNER% REVIEW%THE%COMPANY% 17 of 26

18 ImplementaHon% TRAINING% AUTOMATE%ENFORCEMENT% OVERSIGHT%OF%PROGRAM% Save%Money% 18 of 26

19 Ron%Peppe% %Canam%Steel%CorporaHon% %% Vice%President%Legal%&%% Human%Resources% Nick%Kriegel% Safety%NaHonal% %% Assistant%General%Counsel% Marty%Provin% Jordan%Lawrence% Execu;ve%Vice%President% CIPP/US% 19 of 26

20 Compliance Checklist Discovery Readiness Companies need to develop accurate information about the records used throughout the organization to meet discovery obligations. This checklist outlines practical steps to minimize the costs and risks of document discovery and review. Develop an Accurate Discovery Datamap that details all the record types that exist within the organization, where records are maintained and who controls them. This knowledge will significantly streamline the discovery process and limit related scope and costs. NOTE: This datamap is critical for the Meet & Confer Conference. Develop an Accurate Retention Schedule that covers all record types and information and provides easy-to-understand time periods. This will enable the schedule to be enforced and improves overall legal defensibility. Implement a Repeatable Hold Management Process for enacting immediate, precise and compliance-verified records preservation orders. This is critical to ensure that potentially responsive records are locked down and the company s legal interests are protected. Employ Volume Correction Processes to rapidly and appropriately dispose of all unnecessary paper, and other electronic content. Volume correction efforts will generally enable a company to defensibly reduce records volumes by 50% to 90% depending on media. This is simple to document and execute, and the impact is excellent. NOTE: Records that are available can be demanded in discovery, even if you could have appropriately disposed of them prior to the demand event. Focus on for greatest impact. Less than 5% of constitutes valid business records and most of the remainder has no retention value at all. Identify the non-essential , set retention rules and get rid of the dangerous and unneeded junk. NOTE: volumes are so massively out of control that the costs of collection and review often cause companies to settle unmerited cases rather than undertake the time and expense of discovery. , for this reason and others, must be a priority. Tackle Unstructured Content with a system such as SharePoint. This will enable you to establish and enact retention, access, disposal and other controls, rather than continuing to allow employee discretion on control of electronic content. Identify the 30 (b)(6) Witness and prepare them with detailed knowledge about all aspects of the corporate records program, enforcement processes, hold management processes and how the overall program is communicated and kept up-to-date. Copyright Jordan Lawrence Group of 26

21 LITIGATION READINESS: MINIMIZING COSTS AND MANAGING RISKS IN DISCOVERY Copyright Jordan Lawrence Group of 26

22 Introduction The cost of document discovery and review during investigation and litigation now accounts for as much as 60% of the total cost of litigation in the United States and a single GB of data introduced into the discovery and review process will cost the company an average of $18,000. At the same time, sanctions related to e-discovery are at an all-time high. Most of these discovery challenges stem from unenforced records retention policies, over-retention of records and a lack of a sound Discovery Datamap. According to the 2010 Conference on Civil Litigation at Duke Law School, only 1 in 1,000 pages produced in discovery is ever actually used as evidence to resolve the merits of a case. This paper outlines practical yet effective steps any company can take to address excessive over-retention of legacy and redundant records and information and minimize their costs and risks of document discovery and review. Key Components 1. Enforce the Records Management Policy. Consistent and documented enforcement of a well-developed records management policy has the greatest impact on discovery review costs and risks. During litigation and investigation, the process by which records management has been carried out is often called into question. It s paramount for a company to be able to demonstrate they have routinely and nonselectively instituted the disposal of eligible records in accordance with their records management policy. 2. Develop a Discovery Data Map. The real risks companies face in e-discovery is not the smoking gun document. The risk is not knowing what potentially responsive records and information exist and where to look. Proactively developing and maintaining a Discovery Datamap that identifies what records exist, where they are stored, and who owns them will increase the effectiveness and efficiency of the e-discovery process. 3. Correct Volumes of Legacy Records & Information. Using the Records Retention Schedule and Discovery Datamap, a set of safe standards for disposition of legacy records and information can be developed and applied across media or departmentally. The idea of safe standards is to apply a retention period to all information that has not been classified as a specific business record. By executing a well-documented, auditable volume correction, a company can not only reduce costs and risks, but it demonstrates consistency and credibility to regulators and the courts. 4. Make a Priority. is the most commonly requested information in discovery. The plaintiffs bar understands that in most companies, the volume of being retained is enormous. Additionally, companies tend to have very lax practices regarding where and how business people can store making discovery very costly and certainty of a complete collection elusive. The threat of having to collect and review , which can easily exceed $5 per message, forces many Page 2 22 of 26

23 companies to settle cases regardless of the merit. In litigation or investigation, is commonly the starting and ending point and thus volume correction of should be a priority. 5. Bring Order to Unstructured Content with SharePoint. Unstructured, electronically stored information (ESI) is everywhere - network drives, hard drives and uncontrolled content management systems. There is a high reliance on employee discretion in what unstructured content is called, where it is stored and how long it is retained needlessly driving-up discovery and review costs. Microsoft SharePoint and a properly developed File Plan and retention rules is a good solution for many companies. 6. Eighty percent of companies already use or have a SharePoint license keeping implementation costs low. SharePoint integrates seamlessly with the Microsoft Office suite, used by most companies, making user adoption easier. SharePoint makes it easy to manage records and non-records with varying retention rules for each. SharePoint has exceptional native search capabilities making it easy and cost effective for counsel. Prepare for the Meet & Confer Conference. Because of the short time a company has to prepare for discovery negotiations, it is critical that the legal and information technology teams are prepared well in advance of any action. With a clear and up-to-date Discovery Datamap, attorneys can effectively communicate to the courts what data exists, where it is held and on what media, which is responsive, its relative accessibility or inaccessibility and other vital information. To be prepared for the Meet & Confer Conference, the following information is needed: Complete datamaps for all media and applications. All retention policies (including ESI and ). All backup procedures and policies. Key player groups/organization charts. Key records, applications and data types used by key players. Overview of backup processes. Overview of systems. Key player metrics for and unstructured data. Key data metrics for and unstructured data. Knowledge is power, especially at the Meet & Confer Conference. A detailed Discovery Datamap provides critical visibility and insights that help you understand what you have and what you don t. Armed with this information, counsel will be able to negotiate more favorable discovery terms and minimize both costs and risks. Page 3 23 of 26

24 7. Identify the 30 (b) (6) - Expert Witness. Because counsel will likely be discussing the company s records management practices at the meet and confer, they should identify, in advance, key personnel qualified to be a witness on records management. This individual must have knowledge regarding all aspects of the company s records management and technology environment, including records management policy and retention schedules, training and audit process. These individuals should keep counsel informed of changes to the records management landscape. 8. Develop a Personal Data Inventory (PDI). It is critical, particularly in cross-border litigation, for counsel to have a detailed understanding of where and how personally identifiable information ( PII ) resides and moves through the company. The PDI defines the specific types of PII that exists across a company, record types that contain PII, the business areas that have it, media types and locations where it s stored and how it s shared. The PDI can be instrumental in determining counsel s discovery strategy. 9. Develop a Sensitive Information Data Inventory (SII). Similar to the PDI, the SII enables counsel to understand where and how corporate proprietary, trade secrets, intellectual property and the likes resides and moves through the company. The SII defines the specific types of sensitive information that exists across a company, record types that contain sensitive information, the business areas that have it, media types and locations where it s stored and how it s shared. The SII helps ensure sensitive information is protected throughout the discovery process. 10. Implement a Consistent Hold Management Process. One of the least expensive forms of insurance that a company can have is a practical and repeatable process for establishing immediate, precise and verified hold orders to meet audit, investigations and litigation obligations. Regardless of event frequency, the ability to demonstrate the establishment, compliance levels and continued management of each hold order is often a key deciding factor in the outcome. Conclusion Addressing these key components will have a dramatic impact on discovery and review costs and risks. These considerations are practical, cost effective and proven effective. Page 4 24 of 26

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26 Litigation Readiness Case Study The global manufacturer wanted to minimize their costs and risks of document discovery and review. They wanted to have a concise discovery datamap as well as implement a consistent, defensible approach to manage their litigation, audit and investigation hold process. The project results iden fied there were only 210 unique record types as compared to the massive number on their legacy reten on schedule. BACKGROUND This leading global manufacturer of highly engineered bearings, alloy steels and related components serves 30 countries through over 60 manufacturing facilities, engineering centers, and multiple distribution centers and warehouses. CHALLENGES FACED With an unwieldy number of record types on their retention schedule it was difficult to interpret and there was increasing confusion around what records should be retained and for what period of time. There retention schedule focused only on paper records and they wanted to expand it to include and other electronic information. Managing litigation holds was a pressing issue for the legal group. At any given time, they have several active holds affecting hundreds of employees. Compliance was confusing and cumbersome, with no centralized system for managing holds or for tracking compliance. The project results identified there were only 210 unique record types as compared to the massive number on their retention schedule. Because of the redundancy there was an extraordinary amount of over-retention which was contributing to the increase in discovery and review costs. The legal department was shocked to find out there was no formal training on disposal of records throughout the organization. And over 115,000 boxes were being retained in several vendor warehouses. IMPACT The client used the project results to create a revised, comprehensive records retention schedule and policy that incorporated all areas and locations of the organization. The Jordan Lawrence templates and Best Practices provided a strong foundation for the new retention schedule and policy. The end result was a clear and concise policy and schedule based on business needs that could easily be understood by employees. They wanted a unified approach for their records and information management, as well as a standardized, defensible approach to managing their litigation, audit and investigation hold process. OUR CONTRIBUTION Jordan Lawrence profiled 45 business areas across the organization in 46 days. At the completion of the project, the client had a comprehensive records inventory and Discovery Datamap of all record types and applications used within the company on all electronic media. The records inventory identified what business areas use and control records, where records are stored, the media used, information sources and movement, retention and disposal practices. Copyright Jordan Lawrence 2013 All Rights Reserved Inventories were gathered from each of the thirdparty vendors and analyzed by Jordan Lawrence. By mapping the boxes to the new retention schedule and applying Jordan Lawrence safe standards retentions to the boxes, the client was able to defensibly eliminate 65,000 boxes from offsite storage. The client negotiated a global contract with one of their third-party vendors and reduced their ongoing storage fees by 25%. Using Jordan Lawrence s Hold Management, the client now has a unified, defensible approach to managing their litigation, audit and investigation hold process. They have the ability to create a hold order and identify likely custodians. Now they can monitor compliance and issue awareness notices on a regular basis. They found this especially important to do prior to sending disposal notifications. Their new retention schedule has made a dramatic impact on discovery and review costs and risks. 26 of 26