Meeting the Legal Discovery Challenge
Linda Clark
Executive Consultant
IBM Information Management Software
June 18, 2009
© 2009 IBM Corporation
Information Management Software | Enterprise Content Management
Topics
 The eDiscovery Process and Impact of Records
Management
 Challenges of eDiscovery: Risk and Costs, Recent Rulings
 Proactive, Agile and Defensible Solutions
© 2009 IBM Corporation
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Information Management Software | Enterprise Content Management
What is Electronic Discovery (eDiscovery)?
 The process of identifying, locating, securing and
producing electronically stored information (ESI) and
materials, typically in response to litigation
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Information Management Software | Enterprise Content Management
Some of Today’s eDiscovery Challenges
 For Your Organization
– Volume of information is “too big” to search
– Out-of-pocket costs, e.g. storage and review fees, are uncontrollable and
growing
– Significant risk of missteps in eDiscovery resulting in adverse judgment
 For the Courts and Litigators
– Simple search terms / text search to identify evidence are ineffective:
• High volumes of irrelevant & duplicative documents
• Extended eDiscovery delays proceedings & increases costs for court
system
– Mishandling of eDiscovery compromises perception of justice and fairness
of courts
– Audit trails & chain of custody may be lacking – compromising evidence
– Too may false-positives for privilege, while legitimate content that is
privileged, privacy-protected, or confidential information is not flagged as
such
Source: Senior Litigation Attorneys,
2009 Interviews
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Recent Sanctions for eDiscovery Missteps
 Recent rulings grant plaintiffs an adverse inference for missing
computer evidence (i.e., plaintiff wins)
 Sanctions on the upswing nationwide, recent review of e-discovery
rulings by Los Angeles-based Gibson, Dunn & Crutcher
– 44 state and federal decisions about e-discovery this year (2009),
including 16, or 34%, with sanctions (as of May 31).
 Most of this year's sanctions stem from failure to preserve and
produce relevant data by parties with a duty to preserve it, said
Bennett Borden, litigation associate, Gibson Dunn, Washington, DC.
 For the first 10 months of 2008, 25% of the 138 reported electronic
discovery opinions included sanctions, according to consultancy
Kroll Ontrack Inc.
The National Law Journal, 2009
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Information Management Software | Enterprise Content Management
Reactive eDiscovery Problem #1: Excessive Costs
 Lack of proactive ESI
management creates large
volumes of irrelevant or expired
information
 Extraneous information
translates directly to unneeded
eDiscovery cost
 Simple retention solutions like
fixed email deletion windows
alone are insufficient
$400/hr
$400/hr
$1500/Gig
Information
Information
Management
Management
$1000/Gig
$2250/Day $2600/Gig $1200/Gig
Sample service provider charges
Case Study: DuPont
 Findings for legal discovery for 9 key cases:
“Information retention programs will
be high priorities for companies in
all industries...use systematic
active policy and strategy for
content archiving to reduce legal
data processing and attorney
review costs by up to a third”
–
–
–
–
Total #pages reviewed: 75,450,000
Total #pages responsive: 11,040,000
Total %pages past retention period: 50%
Unnecessary review fees: $11,961,000 USD
at review cost of between 20-80 cents/page
 Does not include other impacts of producing
expired information
- Gartner Project Planning & Budgeting 2008-11
Courtesy of Cohasset Associates MER Conference and DuPont
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Information Management Software | Enterprise Content Management
Reactive eDiscovery Problem #2: Excessive Risk
 Lack of proactive information
management increases risk of
overlooking key evidence
– Risk of sanctions, fines, and
negative public exposure
 Reactive eDiscovery delays
visibility into potential evidence
– Impacts ability to set proper case
strategy
– Risk of spending more on
discovery/litigation than value of
case
Case Study: Qualcomm (2008)
 Qualcomm overlooked thousands of
damaging emails during eDiscovery
despite turning over 1.2M pages
 Impact to Qualcomm was substantial:
– Lost their case vs. Broadcom, putting key
patent rights at risk
– Fined $8.6M USD for discovery violations
– Forced to pay Broadcom’s attorney fees
– Counsel were sanctioned and referred to
the bar for ethical review
 Risk of spoliation if ESI not
pro-actively preserved
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Information Management Software | Enterprise Content Management
Agile eDiscovery Approach
Tools & Methods
Proactive
ESI Management
Content Collection
& Archiving
Agile eDiscovery
Response
Automatic
Classification
eDiscovery Search
& Analytics
Records/Retention
Management
Disorganized,
dispersed, or lost
information
Volume
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Organized,
secure, trusted
information
Relevant,
insightful,
review-ready
information
Reduced cost
& risk
Relevance
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Information Management Software | Enterprise Content Management
Classification & Records Management Integrated
with ECM Platform
Records
Management
US Army Case Study
File plan:
Marketing
File plan:
Legal
Auto-assisted
Classification
Process
File plan:
Finance
...
Review &
Audit
Process
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File plan:
Research &
Development
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Information Management Software | Enterprise Content Management
Meeting eDiscovery Obligations for Pending or In-Process
Litigation / Investigation on Integrated ECM Platform
1
IT
Identify documents to
be preserved*
 Advanced searches
 Total recall (high-volume CBR)
 Search message content,
metadata, & attachments
 Duplicates eliminated
 Review content with
native formatting
2
IT or Legal
Associate with legal
matter (case folder) &
“lock down”
 Case folders, management, & security
 Links to single instance
of content
 No copies or alteration of
metadata
 “Lock down” to suspend
destruction or alteration
 Audit trails for chain of custody
 Export in native formats (NSF/MSG)
3
Legal
Analysis for
Meet and Confer &
early case assessment
 Identify witnesses
 Identify additional custodians
 Identify search terms
 Identify relevant third parties / entities
 Uncover new issues
 Develop case strategy
 Eliminate “noise”, privileged content
 Cull to intelligently decrease volume
* Records and non-records
Identify &
Preserve
© 2009 IBM Corporation
Collect &
Manage
Analyze & Flag
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Information Management Software | Enterprise Content Management
Questions?
Linda Clark
Executive Consultant
IBM Information Management Software
leclark@us.ibm.com
240-381-1545
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