eDiscovery and Sedona Canada

1. eDiscovery and Sedona Canada A RIM Partnership Necessity Presented by Christine Ardern, CRM, ARMA Toronto 2010 The Information Management Specialists

2. eDiscovery – The Sedona Canada Guidelines The Discovery Plan Legal Holds IM and eDiscovery Session Topics The Information Management Specialists

3. What is eDiscovery? • The process in which electronic data is sought, located, searched and analyzed for use (or the intent to use) as • evidence in a criminal or civil legal case or • in response to an access request under FOI The Information Management Specialists

4. 80% of information is unstructured Large volume and ease of duplication E-Documents are: hard to dispose of attached to tracking information (Metadata) updated automatically searchable and may be in multiple locations Why The Focus on e-Discovery? The Information Management Specialists

5. Today’s Situation • Individuals have “working files” in their desk drawers • Individual electronic documents exist on personal drives or in shared directories • Shared folders are set up on shared directories • Individuals create file names according to their preferences and store on CDs, flash drives • Social networking is everywhere! And no-one knows where all the information is The Information Management Specialists

6. Graphics, Video, & Audio Reports Electronically Stored Information Web Content ESI in Desktop Applications Photos and Blueprints Documents and Records Forms Faxes ESI in Enterprise Applications eMails The Information Management Specialists

7. Sources of Electronically Stored Information • Desktop computers • Laptop computers • Removable media • Thumb drives • CDs/DVDs • Handheld devices • PDAs • Cell phones • Pagers • Audio systems • Voicemail • Databases • Network servers • Enterprise applications • Legacy systems • Backup and archiving • Tapes • Discs • Drives • RAM The Information Management Specialists

8. e-Discovery Costs • A Case Study • $900,000 to prepare tapes for access • 1,200,000 documents reviewed • 376,000 were relevant • $2.2 for lawyers to review • Questions: • Were any past the retention period? • Were they properly identified? The Information Management Specialists

9. The Changing Environment in Canada eDiscovery and The Sedona Principles The Information Management Specialists

10. Civil Justice Reform • Key issues relating to eDiscovery • Scope of electronic documents • Preservation of electronic documents • Review of electronic documents • Production of documents in electronic form • The work of the Sedona Conference led to the development of the Sedona Canada Principles The Information Management Specialists

11. Why The Principles? • ESI is now part of routine civil cases, family and criminal litigation • ESI is no longer the purview of the big law firms and large volumes of documents • Cost of dealing with eDiscovery may exceed the amount of the litigation • Canadian courts needed to address ESI The Information Management Specialists

12. Why Are The Principles Useful? • They give insights on what the lawyers consider important in litigation and have been adopted as guidance • They provide ammunition for your records management program • Ontario Bar Association guidelines help • The US experiences following the development of the Sedona guidelines raised the profile of RIM programs The Information Management Specialists

13. Sedona Canada Principle 1 • Electronically stored information is discoverable • Includes not only records and document but also websites, databases, etc Actions To Take • Determine what information exists where across the organization so it can be found • Develop “data maps” to document where information is located and who the owners are The Information Management Specialists

14. Sedona Canada Principle 2 • Parties should ensure that steps taken in the discovery process are proportionate • Costs involve: • Getting the documents ready to review • Searching for what’s in and out • Identifying client attorney privilege • Trade secrets • Preparing the documents for review Actions To Take • Determine how much information may be involved, how it will be produced and the cost The Information Management Specialists

15. Sedona Canada Principle 3 • As soon as litigation is anticipated steps must be taken to preserve potentially relevant ESI Actions To Take • Don’t wait for litigation….be prepared • Have a records management program, including retention schedule and regular destruction, in place • Have records hold processes in place The Information Management Specialists

16. Sedona Canada Principle 3 • Consider what information may be required and make sure it is “held” • Users must be notified that a hold is in place and what must be kept • The hold will impact those records required to support litigation which are scheduled for destruction • All data does not have to be frozen • Look at backups and how they are used The Information Management Specialists

17. Sedona Canada Principle 4 • Two parties meet and confer about identification, preservation, collection, review and production of ESI Actions To Take • Important to understand the requirements not only for the information but the formats they require • Impacts the overall costs • A strong RM program can reduce costs and facilitate meet and confer The Information Management Specialists

18. Sedona Canada Principle 4 • Preservation: • What’s in and what’s out • How will it be preserved? • Collection and processing • Selection criteria for gathering information • Key players, timelines, systems, keywords • Review process • Automated or manual • Production • Native format or static images or both The Information Management Specialists

19. Sedona Canada Principles 5 - 8 • Parties produce relevant ESI that is reasonably accessible in terms of cost and burden • Parties are not required to search for or collect deleted or residual ESI • Can use data sampling, searching or selection criteria to collect relevant information • Parties agree on format • For production • Exchange between parties The Information Management Specialists

20. Sedona Canada Principles 9 - 12 • Protect privileges, trade secrets, privacy and confidential material • Consider and respect local discovery rules which may differ • Sanctions should be considered where the party fails to meet obligations to preserve, collect, review or produce ESI • Costs of preserving, collecting, reviewing electronically stored information will be covered by the party producing it The Information Management Specialists

21. And the Results? • Ontario Bar Association, the Advocates’ Society and others have develop: • Templates • Guidance and • Models/checklists • Rule revisions taking place across the country • Ontario implemented January 2010 • Specific guidance on • Proportionality • Discovery plan The Information Management Specialists

22. Canadian Bar Association Recommendations The Information Management Specialists Create an in-house discovery team Develop retention and destruction poliicy Document electronic records practices Train staff Develop discovery plan

23. Preparing for Litigation And eDiscovery The Information Management Specialists

24. Do you have: Legal hold policies and procedures in place? Information management policies and procedures consistently applied across the ministry? Up to date organization charts that identify who is accountable for which functions in the ministry? Coordination between Legal, IM and IT? Your Situation Today Do you know where your information resources are? The Information Management Specialists

25. Preparing for Litigation • Develop legal hold policy and procedure • Create a Litigation Readiness Plan to address : • Preservation of information • Data storage • Backup • Retrieval plan • Proportionality of potentially relevant documentation • An analysis of cost versus the benefit of the exercise The Information Management Specialists

26. Creating the Data Map • Should include: • An inventory of all the organization’s electronically stored information describing locations and users (names and titles) with detailed indexes and explanations • Descriptions of the types, amounts and accessibility of ESI and metadata associations • Frequency of backups and difficulties and costs associated with accessing backup tapes • Details about retention and filing practices The Information Management Specialists

27. What Is A Data Map? A data map details: • what information the organization creates • where it is stored • Laptops • Servers • Email applications • Archived tapes/disks • Different storage media The Information Management Specialists

28. Benefits of the Data Map • Help the attorneys and judges understand where the electronically stored information is • Helps with the search and preservation of information • Provides better understanding the complexity of accessing the data • Facilitates interviews with IT, records managers and key witnesses • Helps lawyers explain the intricacies in court The Information Management Specialists

29. The e-Discovery Process The Electronic Discovery Reference Model Project: 2007 www.edrm.net The Information Management Specialists

30. The EDRM Components • Information management: the management of the information from creation to disposition • Identification: • which individuals are involved in activities impacted by litigation • Potential information sources • Technology sources: laptops; databases; shared folders, etc • Preservation: maintains and keeps the information secure and unchangeable for the duration of the litigation • Collection: brings in relevant information from all the various sources and locks it down for review The Information Management Specialists

31. The EDRM Components • Processing: organizes it so that it can be accessed and searched as required • Review and analysis: which information that has been held is actually relevant to the case • Production: consolidating the information and preparing for the legal case The Information Management Specialists

32. Day to Day Business Applications • Enterprise Content Management • Records management • Document management • Imaging • Workflow • Email and file archiving • Enterprise search, collection and production • Legal holds, retention The Information Management Specialists

33. What Does This Mean To YOU? The Information Management Specialists

34. IM and eDiscovery • Understand the e-discovery process and where RM fits (the EDRM reference model) • Research the costs of litigation • Show the fines that have been levied because organizations did not produce the right information to your executives! • Find out how many law suits you are involved in, look at the costs, and show how IM can help • Revitalize your IM program The Information Management Specialists

35. IM and eDiscovery • Have your information management policies and procedures in place • Ensure that legal holds are covered • Apply your retention schedules to both paper and electronic information • Understand your data repositories and systems (if necessary do an inventory of systems and documentation) • Talk to your lawyers about their litigation requirements The Information Management Specialists

36. How Will Information Management Support eDiscovery? It will: • Ensure centralized control over information creation, maintenance and disposition for information on all media • Provide information as required accurately, rapidly and easily to help in strategic planning and day to day program management • Meet legislative and regulatory requirements to manage information on all media • Support the disposal of obsolete information on a regular basis to reduce storage requirements • Protect vital records to support ongoing operations The Information Management Specialists

37. The Bottom Line - Be Prepared • Be proactive! Don’t wait until you are facing requests for information before you act • Get your information managed as part of your ongoing business activities • Understand your information resources and implement retention schedules • Create a cross-functional team The Information Management Specialists

38. e-Discovery is Here What Are YOUR Next Steps? cardern@sympatico.ca The Information Management Specialists