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Electronic Discovery & Compliance: Meeting the Challenges - “Avoiding a Trial by Fire….”. Timothy Wells Information Governance Specialist EMC Corporation firstname.lastname@example.org. Agenda. Who Are We and How Did We Get Here? A Brief Background of e-Data, Compliance, the FRCP and eDiscovery
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Information Governance Specialist
5-fold Growth in 4 Years!
Camera phones, VoIP
Medical imaging, Laptops,
Data center applications, Games
Satellite images, GPS, ATMs, Scanners
Sensors, Digital radio, DLP theaters, Telematics
Peer-to-peer, Email, Instant messaging, Videoconferencing,
CAD/CAM, Toys, Industrial machines, Security systems, Appliances
Source: IDC Digital Universe White Paper, Sponsored by EMC, May 2009
70% of information is created by individuals but enterprises are responsible for the security, privacy, reliability, and compliance of 85%
Your “digital shadow” is larger than the digital information you actively create about yourself
More lawsuits and regulation
Widespread belief that deregulation was a failure
Food and drug safety
Climate change, and environmental concerns and sustainability efforts
No New Budget
Do more with less
Enterprise Information Management – How do you get started?
Errors Generate Sanctions and Headlines
Lawyers for a company produced a small batch of relevant e-mails about 10 hours before trial. U.S. District Court Judge Marilyn Hall Patel declares “Heads will have to roll.” According to reports, the punished company had reviewed terabytes of information for this case.
Company hit with an $8.5 million penalty for mistakes with its own discovery of e-mail relevant to a patent lawsuit. As federal courts emphasize the responsibility of parties to conduct thorough discovery searches, more such mishaps are likely.
State of Readiness: Unprepared
“Companies Not Ready For E-Discovery”, http://www.informationweek.com/blog/main/archives/2008/09/ companies_not_r.html, posted 9/23/08 (Andrew Conry-Murray, Information Week). Survey from Oce Business Services.
Pension Committee provides guidance related to litigation holds, preservation and search methods, and appropriate behavior by organizations charged with delivering relevant data as part of a civil litigation matter.
Some insight from Judge Scheindlin:
State and federal regulators, IRS, OSHA, SEC, NASD, FINRA, HIPAA, Data Privacy & Protection
Internal and external audits of books and records, Defense Contractor Audit, Govt Contract Audits,etc.
Federal, State and Local - Freedom of Information Act, Open/Public Records Acts
Current and reasonably anticipated state and federal litigationWhat is eDiscovery?
Electronic discovery (eDiscovery) is the process in which electronically stored information (“ESI”) is searched, collected, preserved, analyzed, and reviewed for legal and regulatory proceedings.
Forrester: “As one outcome of the current macro-economic environment… expect more litigation and regulation in 2009.”
"A tidal wave of
lawsuits is expected in
the coming months..."
Los Angeles Times
Sources: Forrester: “Trends 2009: eDiscovery”, Brian Hill, 1/15/2009
“As companies increase layoffs, lawsuits are likely to follow”, Carol Williams, Los Angeles Times, 12/28/08
Cost to Review
1 TB of Info
E-mail and attachments
General office productivity
E-mail residing on:
Invoices and other customer records
Phone call recordings and other
Source: ESG Research Report: 2007 E-mail Archiving Survey, November 2007; based on 107 respondents
To the best of your knowledge, which of the following record types has your organization been asked to produce in a legal proceeding or regulatory inquiry?
IDC, Survey Shows Glimmers of Hope for Government Web 2.0, Adelaide O'Brien, August 26, 2009
Enterprise Content Subject to Compliance Control
Unmanaged Unstructured Content
Managed Unstructured Content
Network File Shares
Desktops & Laptops
Manage In-place Fixed Content
“IT organizations that have an electronic information inventory, active policy management and archiving solutions, and a repeatable process in place for e-discovery will spend up to 50% less on e-discovery … than those that do not.” ~ Gartner
Retain or delete based on value
Bring eDiscovery in-house
Local Email stores (pst, etc.)
Accounting / Financial Data
Video and voice captures
Backup / DR tapes
Wikis & Blogs
PDAs / Wireless phones
Legacy / stray tapes
What content do I have on my storage?
Microsoft SharePoint, file shares, laptops?
Is it appropriate? Is it where it should be?
What kind of resources is unmanaged content consuming?
What does it cost me?
Is it on the right tier? Should I archive it?
What business records are out there that I don’t know about?
What kind of risk are we carrying?
What if there is confidential or private content or content subject to regulation out there?
How can I clean up my storage?
Can I safely delete content that doesn’t have business value?
What information do I need to archive and retain?
EMC Celerra,Data Domain, Centera
Laptops and desktops
EMC SourceOne File Intelligence
Enables educated decision-making and policy creation
Copy/move to archive storage
Copy/move to enable records
Identify content to migrate to
Copy/move to cloud storage
Classify files by attributes
High business value
Files created or modified in the last 30 days
Files owned by company executives
Medium business value
Files not accessed in the last 90 days and not modified in the last 180 days
Low business value
Files not accessed in the last 180 days
MP3/MP4, JPEG, MOV files
Classify selected files based on file content and metadata
Files with “Confidential” content
e.g., source code files, patents, product manuals, contracts, etc.
Files containing non-public information
e.g., Social Security numbers, credit card numbers etc.
Classify files based on IT or business input
Reduce risk, lower costs, and improve efficiency
Gain insight into unmanaged file content through granular file-level visibility and reporting
Identify opportunities to optimize storage environments where static data is consuming valuable IT resources
Locate and safely delete content to reduce risk, reduce data volume, and improve operational performance
Reduce risk by migrating content to a secure archive or repository for ongoing policy management
Migrate content to virtualized, deduplicated, and cloud platforms to improve performance and reduce costs
Custodian–Driven Holds & Collection
Enterprise / Automation
Moderate risk / low
Knowledge workers create electronically stored information (ESI) on data sources as usual; this solution requires no changes to data creation processes and no agents to be deployed on data sources
The solution indexes (harvests) the ESI on the data sources to gather intelligence about the stored data
Investigative users search the indexes to determine what ESI is relevant
Relevant ESI is secured and placed on legal hold on immutable storage
Investigator culls through held data and generates production sets for use in legal review by outside counsel or hosted review vendor
Regulatory ComplianceReview Sampled Messages
MS Exchange 2003 / 2007 / 2010
Lotus Notes / Domino
S1 eDiscovery – Kazeon
Includes Connectors for:
Home Drives (laptops & desktops)
Exchange & Notes / PSTs & NSFs
S1 Email Archive
Other Content Repositories
Currently two step collection and unified matter management for:
FileNet, Content Manager, GroupWise and other sources
Email & IM
Desktops, Remote Offices,
Legal Hold /
Legal Store or
Preservation Store – Celerra, Centera, Data Domain & others
In 2010 IT Budgets are flat or declining *,
but eDiscovery is not discretionary and the money is already being spent
“Between 10% and 90% of what [clients] have does not need to be retained for any reason.”
Budget roughly $500,000 on IT support for cases involving 10 or more custodians and/or more than three different systems
One terabyte of data can result in $18.75M in legal review costs
Unprepared companies will spend 1/3 more on e-discovery than those with content archiv-ing solutions.
ROI FactorseDiscovery and RIM ROI
“Organizations unprepared for e-discovery in 2009 will be at a disadvantage … open to potential sanctions from an increasingly technically literate U.S. judiciary. As defendants, organizations need to respond quickly and effectively ... As plaintiffs, organizations must have their ESI house in order and be prepared for reciprocal discovery requests…”
Gartner, “Reduce the Cost and Risk of E-Discovery in 2009”, D.Logan & J. Bace, 1/9/09
Percentage of discovery costs when proceedings
or investigations involve the discovery of ESI:*
* Source: Enterprise Strategy Group, 2007
“T]he payback period for an e-discovery investment is very short, on the order of three to six months after implementation takes place.”
 “MarketScope for E-Discovery Software Product Vendors”, Gartner, Inc., 12/17/08.