Defensible Records Retention and Preservation

1. Defensible Records Retention and Preservation Linda Starek-McKinley Director, Records and Information Management Edward Jones linda.starek-mckinley@edwardjones.com

2. Understanding and complying; the legal obligations • Ability to preserve and protect records so that they are available when needed • Getting the house in order; a records management program • Defensible disposal philosophy • Approach to effectively respond to requests for records • Effective E-Discovery Interactions- bridging the communications gap • Employee responsibilities Defensible Records Retention and Preservation

3. What is the problem? Growth of legal obligations for arbitration, litigation and document preservation Frequently changing landscape – technical and legal evolution are ongoing Complex technology environments Information systems knowledge and constraints Manual, undocumented processes Legal Speaks Greek; IT Speaks Latin Defensible Records Retention and Preservation

4. Penalties • Banc of America • Failure to meet production deadlines, missing documents later found and deleted e-mails • $10M SEC fine • Merrill Lynch • Failed to promptly furnish business e-mails to the SEC • $2.5M SEC fine • Pension Committee • Failure to issue a written legal hold notice equals gross negligence • all thirteen plaintiffs were sanctioned • United States District Court, Southern District of New York • adverse inference jury instruction, • $29.2M jury verdict for the plaintiff • Coleman v. Sunbeam (Morgan Stanley) • failure to produce thousands of emails • adverse inference instruction and punitive damages of $850M; later reversed on appeal. • $15M SEC penalty, $5M NASD & NYSE settlement. • Class action by arbitration claimants • Qualcomm Inc. v. Broadcom Corp • Withheld 46,000 emails, failure to search; previous collection was insufficient • Sanctioned Qualcomm $8.5M • Zubulake v. UBS • failure to preserve and produce • $9M in compensatory damages, $20M in punitive damages Defensible Records Retention and Preservation

5. Symantec’s 2011 Information Retention and eDiscovery Survey • Surveyed legal and IT professionals within 2,000 companies • Finding 1: There is more to eDiscovery than email. • #1 Files and documents • #2 Database or application data • #3 Email • Finding 2: Wide variations in information retention practices • Only 32% have a retention plan • Unable to meet discovery requests majority of the time • Resulting damages included reputation injury, fines and sanctions, compromised legal position • Finding 3: Companies employing best practices fare dramatically better • Average 63 requests x 66 hours = 4,000 hours • Save time and money by responding more quickly to eDiscovery demands • More likely to receive a favorable outcome in legal proceedings Defensible Records Retention and Preservation

6. Getting Your House in Order • Governance structure • Comprehensive scope; electronic and paper, email, files, social media • Accountability and ownership • Compliance with industry rules, laws, and internal policies • Consistent, repeatable, defendable processes • Education, execution, oversight Defensible Records Retention and Preservation

7. Building effective eDiscovery interactions Compliance Dept Legal Dept eDiscovery Advisory Group Records Management IS Identify the players Define the common language Understand the limitations and agree on tradeoffs Implement consistent, repeatable, efficient processes Address challenges and set priorities Defensible Records Retention and Preservation

8. Defensible Preservation • Identify custodians • Issue a written litigation hold notice • Follow a consistent process • Agree on format; search terms • Supervise collection and review • Follow up and reminders Defensible Records Retention and Preservation

9. Employee Responsibilities • Compliance is a part of the job • Employees are responsible for their records • It is mandatory for all employees Defensible Records Retention and Preservation

10. Questions Defensible Records Retention and Preservation