Structuring your Information Management to Ensure Litigation Readiness

1. Structuring your Information Management to Ensure Litigation Readiness Julian Ackert, Principal Washington DC John Forsyth, HBOS Edinburgh Andrew Haslam, Consultant London

2. Agenda What is e-Disclosure Preparedness and why is it so important now? What are global corporations doing today in response? How has this environment impacted US law firms? How has this environment impacted UK firms to date? How might UK firms be impacted in the future? Page 2

3. Challenges of Electronic Data • Exponential Volume • Metadata • Unknowns • Cost and risk in determining, “Have we produced what we need to?”

4. Drivers in electronic discovery Rules • New laws, i.e. changes to the CPR, FRCP Complexity • Increased complexity and dependency • Increased use of computer systems • Increased digital-only existence of data Volumes • Bigger storage volumes

5. The Trend in U.S. Court Decisions Company said they located and searched all relevant backup tapes, but had not. • $1.4 billion in damages, adverse inference instruction, default judgmentColeman v. Morgan Stanley Employees deleted relevant e-mail, IT continued to rotate and overwrite backup tapes. • $29 million damages, adverse inference (in ordinary employment case)Zubulake v. UBS Warburg Executives did not print e-mail subject to litigation hold, IT continued 60-day purge • $2.75 million fine, executives precluded from testifying US v. Philip Morris USA

6. What is Litigation Readiness • “A better fence at the top of the cliff” • Sound RIM as a good efficient business practice • Becoming essential for certain firms i.e. SOX, FSA, Basel 2 and MiFID • May be part of due diligence in a M&A situation

7. Why Litigation Readiness? Regulatory and Compliance drivers Litigation issues Data Protection problems General information management “Best Practice"

8. Corporate Strategies for Litigation Readiness • Profile your systems and data • Reduce the pool of backup/archival media • Extend records/retention policy to ESI • Establish “Preserve Now” team and process • Streamline litigation hold process • Manage outside counsel and vendors • Litigation Process “Outsourcing” Changing the Corporate Architecture

9. Emerging “best practices” in the US Emerging “best practices” in the US • Be first to put a reasonable plan in place, to your advantage, then cost shift • Issue litigation hold quickly, narrowly, and often • Proactively involve IT at a level that gets results, pay attention to spoliation via maintenance processes/ programs • Preserve quickly (‘anticipation’ of lawsuit), on a rolling basis • Preserve metadata • Collect accessible data, broadly, cull later • Sample to reduce population of documents sent to review • ‘Conceptual’ document review tools

10. Litigation Readiness Reactive/technology Proactive Efficiencies in e-disclosure Original Volume (and Cost) Preserve Gather Scope Process Host Review Present

11. The Challenge for Outside Counsel • Understand the details of client IT systems • Think global • Scope of data – locations, volume, timeframe, retention • Preservation options, and cost to access, cull and produce • Preserve data/metadata upon ‘anticipation’ • Employee litigation holds should be robust, but may be insufficient. • IT should proactively preserve from a system standpoint • Metadata, backup tapes, what is reasonable? • Develop ‘CMC’ strategy for negotiating • Defensibility of preservation • Accessibility/inaccessibility for collection • Timeframe/format of production

12. Discussion Discussion • How has this environment impacted UK firms to date? • How might UK firms be impacted in the future? How has this environment impacted UK firms to date? How might UK firms be impacted in the future?

13. Discussion Questions? How has this environment impacted UK firms to date? How might UK firms be impacted in the future?