SLIM DOWN YOUR EXCESS DATA
LITIGATION PREPAREDNESS & RECORDS
RETENTION BEST PRACTICES
ACC Minnesota Chapter
SPEAKERS
Skip Durocher
Dorsey & Whitney
Rebecca Perry
Jordan Lawrence
Caroline Sweeney
Dorsey & Whitney
Partner & Chair of E-Discovery
Practice Group
CIPP/US/G
Director of Professional Services
Global Director, E-Discovery &
Client Technology Services
THE INTERSECTION
InfoGov
InfoSec
eDiscovery
Identifying
Data, Records
Data Owners and
Custodians
Data
Data Owners and
Custodians
Data
Case-specific
Custodians
Securing
Minimizing Storage
Requirements by
Identifying What's
Important and
Disposing All Else
Maximizing
Protection by
Identifying and
Storing
Appropriately
Collecting and
Preserving What's
In Scope and
Storing Securely
and Immutably
Managing
Defining rules for all
data including
records, managing
to those rules
Defining rules for
classifying data,
managing to
classification
Adhering to
eDiscovery rules
within associated
jurisdictions
FAST FACTS
The year-over-year trend shows ESI is more likely to be included in records
management programs, retention schedules and hold programs.
● 80% of respondents asserted that their organizations' records management program
includes ESI, which is an increase from 75% in 2009
● 79% of respondents affirmed that their organizations' retention schedules apply to
ESI, which is an increase from 65% in 2009
● 87% of respondents declared that their organizations' hold program pertains to ESI,
for which there was no change from 2009
The continuous positive progress in recognizing the importance of managing ESI is
encouraging.
2011/2012 Cohasset / ARMA International Survey Results
FAST FACTS
Successful records management and hold programs require cross-functional
collaboration.
The survey responses showed that the Legal department is most supportive of the
records management program:
● 68% of survey participants asserted that "Legal is supportive of the
records management program and is actively engaged when needed."
● 81% of survey participants disclosed that their organizations' Legal
department is actively engaged and demonstrated support for the records
management program.
Leadership, managers and Information Technology personnel demonstrated
significantly less support.
Only 54% of survey participants rated employees' active engagement and
demonstrated support as "good” or better. This is important, since most
organizations rely on manual or semi-automated records management processes,
requiring the support and engagement of employees.
2011/2012 Cohasset / ARMA International Survey Results
THE CHALLENGES
Big Data
Globalization
Security and Privacy
Mobile World
THE CASE LAW
Lewy v. Remington Arms Co., 836 F. 2d 1104 (8th Cir. 1988)
•
Three-part test to determine whether company policy is
reasonable:
– Is retention period reasonable, in light of specific record
– Have other lawsuits been filed against company involving
similar complaints
– Was policy adopted in bad faith
United States v. Philip Morris USA, Inc., 327 F. Supp. 2d 21 (D.D.C 2004)
– Emails deleted as part of routine operations
– Waited 4 months to notify court and continued routine
destruction for 2 months
– Monetary sanction of $2.75 million
– Barred testimony of witnesses who violated court’s
preservation order and company’s document retention policy
THE CASE LAW
Phillip M. Adams & Assoc. v. Dell, Inc., 2009 WL 910801 (D. Utah March 30,
2009)
•
Issue: whether decentralized records management system was
reasonable and met good faith requirements of FRCP 37(e)
–
–
–
•
•
Determination of what emails were of “long term value” was left to individual
employees
When computer replaced, employee identified what files should be transferred to new
computer
No centralized storage for electronic documents; employees maintained records on
individual workstations
Court found that lack of retention policy and irresponsible data
retention practices were responsible for significant loss of data
Court held system was not reasonable and did not satisfy Rule 37(e):
–
–
“While a party may design its information management practices to suit its business
purposes, one of those business purposes must be accountability to third parties.”
“[a]n organization should have reasonable policies and procedures for managing its
information and records. The absence of a coherent document retention policy is a
pertinent factor to consider when evaluating sanctions.”
THE CASE LAW
Sekisui American Corp. v. Hart, 945 F. Supp. 2d 494 (S.D.N.Y. Aug.
15, 2013)
– Plaintiff did not issue litigation hold for 15 months
– Plaintiff did not notify outside IT vendor for 21 months of preservation
obligation
– Court: Destruction of ESI triggers presumption of prejudice to other party
and is grossly negligent
– Sanctions could be warranted upon finding of negligent destruction
without finding of bad faith
• “To shift the burden to the innocent party to describe or produce what has been
lost as a result of the opposing party’s willful or grossly negligent conduct is
inappropriate because it incentivizes bad behavior on the part of would-be
spoliators”
– Adverse jury instruction
• But allowed for jury to "still determine that [defendants] were not prejudiced by
[plaintiff's] willful destruction of ESI and [may] decline to draw any adverse
inference.“
THE CASE LAW
In re: Pradaxa Prods. Liab. Litig., Case No. 2:12-md-02385, 2013 WL 6486921 (S.D.Ill.
Dec. 9, 2013)
•
•
Sanctions warranted for Defendants’ bad faith violation of court’s case
management orders
Several key issues:
– Cooperation & Proportionality
• Danger of engaging in proportionality without engaging opposing
counsel
– Failure to place timely hold
• Placed incremental holds
– Scope of what to put on hold
• Failure to identify key custodian
• Failure to produce ESI for certain custodians
– Implications for BYOD
• Failure to preserve business-related text messages from cell phones of
certain custodians
THE CASE LAW
Sokn v. Fieldcrest Cmty. Unit School Dist. No. 8, No. 10-cv-1122, 2014 WL 201534
(C.D. Ill. Jan. 17, 2014)
•
Plaintiff sought sanctions for Defendants’ destruction of relevant audio
recordings of closed-session school board meetings
–
•
Per school district policy, subject tapes were to be maintained for at least
eighteen months and could be destroyed only after vote by school board
–
•
•
Violated Illinois Open Meetings Act, school board’s own document retention policies,
and Illinois common law.
“The Policy seems to [have been] designed to fulfill the requirements of the Illinois
Open Meetings Act . . . .”
Despite preservation policies, unknown number of recordings were destroyed
without vote.
Court declined to impose sanctions where bad faith could not be established
absent evidence of when tapes were destroyed.
FRCP 37(E)
Designed to protect organizations from sanctions when
data is destroyed or deleted
Requires party seeking protection from sanctions to be
acting in GOOD-FAITH at time of deletion(s)
Requires deletion or destruction of data to be result of
routine and normal operation of computer systems
•Reduce Costs
•Reduce Risks
•Improve Compliance
Big Data
Smart Data
How good is good enough
and where do you start?
What Makes Deletion
Defensible?
Show Your Work.
ABC Company’s Retention Schedule
DOOM
DEVELOP A RECORDS INVENTORY
1
2
3
What Do You
Have?
Where Does It
Exist?
What Are The
Requirements?
WHAT DO YOU HAVE?
Accident/Incident Records
Advertising Records
Benefit Records
Budget Records
Contracts & Agreements
Coupon Records
Credit Approvals
Customer Orders
Drug Screening Records
Employee Medical Files
Gift Card Functions
Payment Records
Personnel Files
Sales Receipts
WHERE IS IT?
1010100011
1001010011
0110100
1001011
0100110
1001101
10
0
010
01
WHAT ARE THE REQUIREMENTS?
BUSINESS NEEDS
SENSITIVITY
REQUIREMENTS
Corporate Sensitive
DOL
PII
PCI
Customer Data
GLB
Intellectual Property
HIPAA
Bio Metric
OSHA
Patient Health Info.
SEC
Sensitive EU
State Privacy Laws
ACTIONABLE RETENTION SCHEDULE
RETENTION FOR ALL INFORMATION
Valid Business Records
LEGITIMATE RETENTION REQUIREMENTS
Litigation
Holds
Most Information
HAS LITTLE RETENTION VALUE
Reference Value
RETENTION VARIES
DELETION STRATEGY FOR EMAIL
NON-ESSENTIAL
COMMUNICATION
BUSINESS REFERENCE VALUE
INBOX = 180 DAYS
SENT ITEMS = 180 DAYS
DELETED ITEMS = 2 DAYS
18 MONTH RETENTION
6 YEAR RETENTION | BENEFITS
VALID BUSINESS RECORDS
7 YEAR RETENTION | LEGAL
7 YEAR RETENTION | TAX
DISABILITY RECORDS | 6 YEARS
LEVERAGE TECHNOLOGY
RECORDS
NON-RECORDS
6 Years
3 Years
18
Months
TECHNOLOGY CONSIDERATIONS
• Use of an email archive platform and ability to assign records
retention and litigation hold “rules” to email
• Archiving of non-email data (structured and unstructured) and
ability to assign rules to, and implement holds against, those
sources, as well
– SharePoint 2013 (per Forrester 2014 market study) has adequate
records management and improved e-discovery capabilities but
may require additional third party tools to enhance capabilities
• Use of imaging systems to minimize hard copy and apply
automated retention to formerly paper records.
• Success is likely greater when including Legal, IT, key business
stakeholders, and those with records management
responsibilities to define technology product requirements and
select and implement a solution.
Skip Durocher
Dorsey & Whitney
Rebecca Perry
Jordan Lawrence
Caroline Sweeney
Dorsey & Whitney
Partner
durocher.skip@dorsey.com
626.340.7855
CIPP/US/G
Director of Professional Services
rperry@jordanlawrence.com
636.821.2251
Global Director, E-Discovery &
Client Technology Services
Sweeney.Caroline@dorsey.com
612.340.2983