A PROACTIVE APPROACH TO E-DISCOVERY

1. A PROACTIVE APPROACH TO E-DISCOVERY March 4, 2009 Presented to the Corporate Counsel Section of the Tarrant County Bar Association Carl C. Butzer Jackson Walker L.L.P. cbutzer@jw.com • 214-953-5902

2. Procedural Rules • Federal Rules: Scheduling Order (16), Initial Disclosures (26), Discovery Plan (26), Discovery (34), Safe Harbor (37), Subpoenas (45) • Texas Rule 196.4: “discovery of data or information that exists in electronic or magnetic form”

3. Discovery • “All documents and things that relate to document retention or destruction policies of Defendants for the last 6 years.” Keithley v. Homestore.com, Inc., 2008 U.S. Dist. LEXIS 103296 (N.D. Cal 2008) • “[T]raining documents . . . relating to document retention policies.” Kingsway Fin. Servs. v. Pricewaterhouse-Coopers LLP, 2008 U.S. Dist. LEXIS 105222 (S.D.N.Y. 2008)

4. Discovery • “Plaintiffs now seek to depose a corporate representative regarding document retention practices and potential spoliation issues surrounding the lack of a document retention notice . . .” In re Zurn Pex Plumbing Prods. Liab. Litig., 2008 U.S. Dist. LEXIS 96356 (D. Minn. 2008)

5. Getting Control of ESI • Understand and manage the company’s universe of data • Records Retention Policy • Litigation Holds

6. The Plan • Core Group • IT • Collect Existing Overview Documents • Created Detailed Documents – People, Places, Things • Create/Revise Document Retention Policy • Create a Litigation Hold Process • Create a Strategy for Preservation-Collection-Review-Production

7. Importance of IT Professionals • Creating network diagrams • Identifying the company’s various file servers, e-mail servers, fax servers, shared drives, home/personal directories; who has access to what; and their geographical locations • Technological limits

8. Importance of IT Professionals (cont’d) • Generating lists of software applications, systems, databases • Locating servers storing inactive data • Identifying and putting a price tag on cost savings

9. Existing Information About the Company’s Data • Network architecture drawings: graphical overview of information technology • Legacy (old and possibly out-dated) computer systems • Organizational charts • Identity of software applications and databases used in the organization • Descriptions of product and service processes

10. Existing Information About the Company’s Data (cont’d) • Contracts with third parties for the hosting and/or storage of company data • Discovery responses, documents, and testimony related to company litigation

11. Org Charts & Data Maps • Prerequisite • Don’t reinvent the wheel • IT, Corporate, Legal

12. Records Retention • Retention Periods • Interviews • Destruction • Mechanism for Suspending • Technology for Implementation • Training • Monitoring • Enforcement • Updating

13. Litigation Hold: The Law • The duty to preserve is triggered when the party “reasonably anticipates litigation.” • A party reasonably anticipates litigation when the party is on notice of a credible threat it will become involved in litigation or anticipates taking action to initiate litigation. • What must be preserved is “all relevant documents (but not multiple copies) in existence at the time the duty to preserve attaches, and any relevant documents created thereafter.” Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)

14. Litigation Hold: The Process • Identify key players • Send a litigation hold letter to the key players in which you identify the types of information that should be preserved and how it should be preserved • Monitor compliance with the litigation hold • Re-issue the litigation hold letter as a reminder

15. Litigation Hold: The Repeatable Process • Data Maps • Organizational Charts • Point Persons • Preservation Letter • Documentation • Follow-Up

16. Litigation Hold Letter • Identify the matter and the parties • Preserve relevant information; do not destroy • Current and future information • Sufficient description • Consequences of the failure to comply • Point of contact • Identify other custodians, third parties • Procedure for preservation (?) • Acknowledgement (?)

17. I’ve Got Plans, But I’ve Got No Partner: Convincing Management • Reduction in operating costs: volume, efficiency, technological improvements • Risk reduction: statutory retention periods, spoliation charges, litigation • “If, on the other hand, it is viewed as a Six Sigma project started with a Kaizen meeting designed to provide a lower TCO (total cost of ownership) for a litigation matter by showing a positive ROI (return on investment) for the purchase of new applications, then it is likely to be well received.” Bringing E-Discovery In House (Jake Frazier)

18. Summary • Avoiding litigation costs and sanctions through use of pre-litigation policies and procedures; • Document and email retention policies; and • Pre-packaged litigation holds.

19. E-Discovery Resources • www.sedonaconference.com • www.e-discoverylaw.com • www.electronicdiscoveryblog.com • “Managing Electronic Discovery: A Pocket Guide for Judges” available at www.fjc.gov