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Developments in E-Discovery

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Title: Developments in E-Discovery


1
Developments in E-Discovery
  • Rosemary Connelly, Attorney Generals Office,
    Trial Division Chief
  • Linda Hamel, General Counsel, Information
    Technology Division
  • Alan Cote, First Deputy Secretary of the
    Commonwealth and Supervisor of Public Records,
    Office of the Secretary of the Commonwealth
  • Stephanie Zierten, Deputy General Counsel,
    Information Technology Division
  • Jenny Hedderman, Deputy General Counsel, Office
    of the Comptroller
  • Greg Massing, General Counsel, Executive Office
    of Public Safety

2
Todays Agenda
  • Welcome and Introductions Stephanie Zierten
  • Overview of Rule Changes Rosemary Connolly
  • Electronically Stored Information Linda Hamel
  • Records in Common Schedule (RIC) Alan Cote
  • Guidelines for Implementation Stephanie Zierten
  • Fiscal Impact Jenny Hedderman
  • Mock Meeting Greg Massing
  • Wrap up and questions all

3
OVERVIEW OF E DISCOVERY IN THE FEDERAL AND STATE
COURTS
  • VS.

4
The Lingo
  • What is ESI?
  • It is electronically stored information
  • What are some examples of ESI?
  • Emails, web pages, word processing files, flash
    drives or data stored on computer drives.

5
DISCOVERY IN 2007
  • Parties have always been permitted to request
    documents stored in an electronic format - thats
    not new.
  • What is new are the 2006 Amendments to the
    Federal Rules of Civil Procedure, specifically
    the following rules
  • 16 Pretrial and scheduling conference
  • 26 General Discovery provisions
  • 33 Interrogatories to parties
  • 34 Document Production
  • 37 Sanctions and
  • 45 Subpoenas

6
DISCOVERY IN 2007 (continued)
  • Federal Local Rule 26.5 defines document to
    have a meaning that is
  • synonymous to the usage of that word in
    Fed.R.Civ.P. 34(a) and that states
  • documents or electronically stored information
    including sound recordings images and other
    data or data compilations stored in any medium
    from which information can be obtained
    translated, if necessary, by respondent into
    reasonably usable form

7
DISCOVERY IN 2007(continued)
  • State Court parties define the terms including
    the term document but most parties define it
    broadly enough to include ESI.
  • And
  • State uniform definitions are likely to be
    implemented in the near term and those are likely
    to be modeled after the Federal definitions.

8
What is required of parties under the amended
Federal Rules?
  • 1. Send a litigation hold letter when
    litigation is reasonably clear. Agency counsel
    must send the litigation hold letter to ensure
    that documents are preserved.
  • Tip - Know where to look for ESI and who the
    holders of relevant ESI are so you can get the
    hold broadcast out to IT and the people who
    need to know. Document this step!

9
WHAT TO DO (continued)
  • 2. Plan for disclosure of ESI as part of the
    litigation plan with your AAG. Discuss what
    format your IT can make the documents accessible
    in and discuss what format you want the other
    parties to produce their data so it can be
    translated. See eg Rule 16 Conference and Auto
    Disclosure.
  • Tip get ahead of the curve, take time now to
    talk with your IT and ITD so you are familiar
    with what is and isnt desirable when your agency
    is faced with an ESI production what format can
    we produce ESI in? What precautions the agency
    take to protect the privacy of individuals and
    comply with FIPA?

10
WHAT TO DO (Continued)
  • Know that there are two limitations on discovery
    of ESI
  • 1. ESI not reasonably accessible because of undue
    burden or cost Fed. R. Civ. P. 26(3)(b)(2)(B)
  • Or
  • 2. if ESI is lost as a result of the routine,
    good-faith operation of an ESI
  • Tip- Because state agencies are required to keep
    documents in accordance with the state document
    retention schedules - as a practical matter -
    there may be a presumption that the agency has
    all required documents whether they were created
    or stored in an electronic format or not. These
    two safe harbors may not offer as much shelter
    to public agencies.

11
But what if
  • 1. an ESI, like a document, is lost?
  • Unless it was the result of a routine, good
    faith, operation of the computer system then
    there may be adverse consequences in your
    litigation.
  • Fed. R. Civ. P. 37 permits the imposition of a
    variety of sanctions for failing to comply with
    discovery. See Fed. R.37(b)(2) (A) (E) . At
    the least there may be an adverse inference
    against the agency - ie that the evidence lost
    was harmful to the agencys position as a
    sanction for failing to produce an ESI that,
    according to the records retention schedule, it
    should have maintained.

12
or
  • 2. If the ESI would be too burdensome or costly
    to produce?
  • Fed. R. Civ. P. 26(3)(b)(2)(B) states that the
    party opposing the production on the these
    grounds bears the burden of such and if that
    showing is made then only if the court finds
    good cause may it order the production and may
    specify the conditions (ie shifting the cost of
    production onto the party making the request)

13
or
  • 3. If my agency isnt a party, must it respond to
    a subpoena duces tecum seeking ESI?
  • Yes, Fed. R. Civ. P. 45 operates the same whether
    a party is seeking old fashion paper documents or
    ESI.
  • But, remember you still have 14 days after
    service of subpoena to serve written objections
    and then the burden shifts to the moving party to
    obtain an order to compel the production. Fed.
    R. Civ. P. 45(c)(1)(B).
  • And, if the subpoena does not specify the form
    for producing the ESI then you may produce it in
    the form in which it is ordinarily maintained.
    Fed. R. Civ. P. 45(d)(A) (B).

14
By now you might be thinking you need this
15
ITS NOT SO BAD
  • Agency counsel in conjunction with the agencys
    IT Department and together with counsel at the
    AGs Office will serve their respective roles to
    ensure that the agency meets its discovery
    obligations in its litigation.
  • Getting it done right is everyones
    responsibility!

16
E-Discovery
  • What Is Electronically Stored Information
    under the Federal Rules of Civil Procedure, and
    Where Should Agency Lawyers and CIOs Responding
    to Discovery Requests Look for It?

17
Electronically Stored Information (ESI) What is
It?
  • FRCP Rule 34 Production of Documents,
    Electronically Stored Information, and ThingsAny
    party may serve on any other party a request (1)
    to produce and permit the party making the
    request, or someone acting on the requestors
    behalf, to inspect, copy, test or sample any
    designated documents or electronically stored
    information-including writings, drawings, graphs,
    charts, photographs, sound recordings, images,
    and other data or data compilations stored in any
    medium from which information can be
    obtained-translated, if necessary, by the
    respondent into reasonably usable form- or to
    inspect, copy, test or sample any designated
    tangible things which constitute or contain
    matters within the scope of Rule 26(b) and which
    are in the possession, custody or control of the
    party upon whom the request is served . . .

18
ESI What is It? (cont.)
  • Committee Notes on Rule 34
  • ESI may exist in dynamic databases and other
    forms far different from fixed expression on
    paper
  • The wide variety of computer systems currently in
    use, and the rapidity of technological change,
    counsel against a limiting or precise definition
    of electronically stored information
  • Rule 34(a) (1) is expansive and includes any type
    of information that is stored electronically.
  • ESI includes information stored in any medium
    to encompass future developments in computer
    technology.it is intended to be broad enough
    to cover all current types of computer based
    information, and flexible enough to encompass
    future changes and developments.
  • References elsewhere in the rules to ESI should
    be understood to invoke this expansive approach.

19
ESI What Is It (cont.)
  • Content, media, storage, special data
    considerations, location
  • Reasonably Accessible

20
Examples of ESI Content
  • System output
  • System data (when users log on, websites visited,
    passwords used, docs printed or faxed)
  • Office documents (ex Word, Powerpoint, Excel)
  • Photos
  • Maps
  • Movies

21
ESI Content (cont.)
  • Electronic calendars and to do lists generated by
    MS Outlook and other desktop software
  • IM records
  • Backup and archival data
  • Databases
  • Text messages
  • Web page content
  • Email content email attachment content
  • Deleted documents and other deleted data
  • Voicemail

22
Examples of ESI Media and Storage Devices
  • Emails and their attachments
  • Web pages, old and new
  • Videos
  • Floppy disks
  • CDs
  • Audiotape
  • Videotape

23
ESI Examples of Media and Storage Devices
  • Microfilm/Fiche
  • Data storage Tapes
  • Hard drives
  • Servers (web, application, FTP)
  • Digital film
  • Thumb drives
  • Memory cards

24
ESI Special Data Considerations
  • Deleted data is not necessarily deleted
  • Embedded data (draft language, editorial
    comments, e.g. Track Changes data)
  • Metadata (data about the history, tracking or
    management of an electronic file, e.g. email
    wrapper)
  • End user search tools that create store of docs
    accessed (Google Desktop search)

25
Examples of ESI Locations
  • Individual employee, contractor or agent of
    agency
  • Hard drive of PC or laptop in central office,
    remote location, or home for telecommuters, for
    all kinds of documents
  • See especially PC hard drive or shared drive
    storage for emails offloaded from email system
    (.pst files)
  • Centralized email and other central system
    servers
  • Network servers containing shared drives
  • CDs, floppy disks in any location where
    employee/contractor works
  • USB driveshard and thumb or flash drives
  • PDAs----anywhere

26
Examples of ESI Locations (cont.)
  • Files stored on individual or network drives
  • Servers of public email providers used by state
    employees at workGoogle, hotmail
  • Servers on site or at remote host
  • Equipment in storage area awaiting disposal
  • Backup tapes onsite or offsite
  • Made before upgrades
  • Made for disaster recovery
  • Made routinely

27
ESI Locations, cont.
  • Cell phones (text messages, phone numbers) and
    Personal Digital Assistants (PDAs) carried on the
    person
  • Blackberry (can cache email)
  • Treo (can cache email)
  • Palm Pilot
  • Q

28
ESI Locations (cont.) Third Party Data Holders
  • External mail services
  • Gmail (Google)
  • Hotmail (MSN)
  • Yahoo! mail
  • Long term storage
  • Iron Mountain
  • State archives
  • Disaster Recovery Contractor
  • For some systems, tapes shipped out periodically
    for storage (e.g. SunGuard)

29
ESI Reasonably Accessible
  • Basic rule A party need not provide discovery of
    ESI from sources that the party identifies as not
    reasonably accessible because of undue burden or
    cost. Party from whom discovery is sought must
    show that the ESI is not reasonably accessible
    because of undue burden or cost. FRCP
    26(b)(2)(B). Committee Note UBC in light of cost
    of searching, retrieving and producing.
  • However, even after finding that ESI is not
    reasonably accessible, court may order discovery
    from such sources upon a showing of good cause.
    FRCP 26(b)(2)(B).

30
ESRI Reasonably Accessible
  • Committee Notes Courts must apply following test
    in determining whether to require production of
    ESI
  • Is it RA?
  • If not RA, is there good cause for requiring
    production?

31
ESI Reasonably Accessible
  • FRCP 26(b)(2)(B) Committee Note
  • Reasonably Accessible rule designed to address
    issues raised by difficulties in locating,
    retrieving, and providing discovery of some ESI.
  • Some sources of ESI can be accessed only with
    substantial burden and cost. In a particular
    case, these burdens and costs may make the
    information not reasonably accessible.
  • Identification of ESI does not relieve party of
    obligation to preserve evidence.
  • Requesting party may need discovery (sampling,
    inspection, taking depositions) to determine
    whether the ESI they seek is in fact not
    reasonably accessible.

32
ESI Reasonably Accessible
  • Reasonably accessible data is active, purposely
    stored, and available for use by end users.

33
ESI Reasonably Accessible
  • Data that is not reasonably accessible cannot be
    easily accessed by the end user and may include
  • data stored on backup tapes or legacy systems
    that are not indexed, organized, or susceptible
    to electronic search
  • material that has been deleted and remains but
    in fragmented form, requiring computer forensics
    to restore
  • Data created, used and stored in electronic media
    no longer in use (8 track tapes, Wang)
  • Enormous volume
  • Legacy data that remains from obsolete systems
    and is unintelligible on the successor system
  • Databases designed to present certain information
    in certain ways and that cannot readily create
    very different kinds or forms of information

34
ESI Reasonably Accessible
  • Zubalake v, UBS Warbug, 217 F.R.D. 309, 2003 U.S.
    Dist. LEXIS 7939, 55 Fed. R. Srv. 3d 622
  • Decision is pre-FRCP amendment, but cornerstone
    e-discovery case
  • 5 point continuum for evaluating accessible vs.
    inaccessible
  • Touch point for later pre-rules change cases
  • Likely to be considered post rules change

35
ESI Reasonably Accessible
  • Accessible
  • Active, online data. Magnetic disk. Active stage
    of records life, when records created, received,
    processed. Access frequency is high, access
    speeds fast (milliseconds)
  • Near-line data. Robotic storage device (robotic
    library) housing removable media. Access speeds
    from millisecond up to 10 to 30 seconds, 20 to
    120 seconds for sequentially searched media like
    mag tape.

36
ESI Reasonably Accessible
  • Inaccessible
  • Offline storage/archives. Removable optical disk
    or mag tape, labeled and stored in shelf or rack.
    Used for DR and archival records likelihood of
    retrieval is minimal. Manual retrieval. Access
    minutes, hours, days.
  • Backup tapes. Sequential access device must read
    any particular block of data by reading all
    preceding blocks. Data not organized for
    retrieval of individual docs or files. Data
    compression makes restoration more time consuming
    and expensive
  • Erased, fragmented, or damaged data.
    Fragmentation As files are erased, contiguous
    clusters of data are made available as free
    space large, newly created files may be broken
    up and randomly placed throughout the disk. Also,
    damaged and erased data. In all 3 cases, can only
    access after significant processing.

37
ESI Not Reasonably Accessible but Must be
Produced Nonetheless
  • If the court orders ESI that is not reasonably
    accessible to be produced, agencies may have to
    rely on
  • ITD to provide backup tapes for ITC-hosted
    applications or MassMail
  • Other systems administrators for backup tapes
  • Local LAN team to help sort through local
    MassMail archive
  • Computer forensics consultants

38
ESI Computer Forensics
  • Computer forensics can give agencies access to
  • data remanence, residual physical representation
    of data that has been in some way erased
  • Deletion removes only pointers to the directory
    system, not the deleted document itself
  • Data on media that is damaged, has failed, or
    become corrupted

39
ESI Computer Forensics
  • Tools available for taking snapshot of data on
    particular day
  • Imaging hard drives of desktop, server, laptop or
    media storage devices
  • Data analysis

40
ESI Computer Forensics
  • Tools available for data recovery
  • Physical damage
  • Hardware repair
  • Disk imaging (extracting the raw image on a disk
    and reconstructing usable data after repair of
    logical damage)
  • Logical damage (damage to file system that
    prevents it from being mounted by the host
    operating system)
  • Consistency checking
  • Rebuilding the file system from scratch, after
    studying organization of original files
  • Deleted data
  • Specialized software

41
ESI Computer Forensics
  • For prospective document freeze, journaling
    incoming and outgoing emails.

42
ESI Computer Forensics

43
ESI Who Knows Where it is Stored?
  • The agency employees, contractors or agents whose
    documents are subject to discovery
  • Agencies have certain contractual rights under
    the Commonwealths Ts and Cs to the documents
    created by vendors in fulfilling their
    contractual obligations
  • Your CIO or Systems Administrator
  • Business owners of the data
  • None of the above alone e-records and e-devices
    are not 100 centrally controlled or managed in
    any organization

44
ESI Who knows where? (cont.)
  • Data center host
  • Webmaster
  • Current web pages
  • Archived pages

45
ESI Who knows where? (cont.)
  • Administrator of agency system
  • Administrators of ANF centrically administered
    systems
  • HRCMS
  • NewMMARS
  • NewMMIS
  • MassMail

46
ESI Who knows where it is stored?
  • Do not limit your inquire to CIO he or she may
    not necessarily know
  • Whether employees are using HotMail or home email
    addresses to conduct state business
  • Whether they have copied emails to .pst files
    before deleting them
  • Whether they download Commonwealth documents to
    their home PC, handheld or other personal device
  • Answers to questions about systems administered
    at the enterprise level

47
ESI Conclusion
  • Move from paper to electronic discovery has
    decentralized discoverable material and the
    persons who control it. Control over access and
    knowledge often in hands of user instead of
    central agency authority
  • Start by developing an ESI map taking into
    account people, data, devices, and locations.
  • Do not under any circumstances rely on your CIO
    and ITD alone to determine what discoverable ESI
    your agencys employees and contractors may
    control

48
  • Linda Hamel
  • General Counsel
  • ITD
  • (617)-626-4404
  • Linda.hamel_at_state.ma.us
  • Thanks to ITD Legal Intern Sean Kass, HLS 08

49
Supervisor of Public Records Records In Common
Schedule
  • http//www.sec.state.ma.us/arc/arcrmu/rmuidx.htm

50
Guidelines for Agencies
51
Actually doing it
  • Preparing for E-Discovery
  • Records retention program implementation
  • Litigation/Claim response checklist

52
Preparing for E-Discovery
  • Assemble the team
  • Secretary or agency head
  • CIO
  • Key IT people (who will be Agencys Fed. R. Civ.
    P. 30(b)(6) witness?)
  • Records Managers
  • Legal Counsel
  • Inventory records
  • Identify hardware/software that contains records
    (version, how stored)
  • Perform an application inventory (e.g. HRCMS,
    office applications)
  • Storage formats for backup data
  • Where are they located?
  • How segregated (by record, individual, dept.)?
  • Frequency of tape recycle?
  • Consider off-site records (e.g. vendors, home
    computers)
  • Document results

53
Preparing for E-Discovery
  • Categorize which records to keep and for how long
  • Legal requirements
  • Financial requirements
  • Operational requirements
  • Operational baseline what is the longest record
    you need to keep?

54
Preparing for E-Discovery
  • Consider other legal obligations (in addition to
    RIC)
  • Statutes relevant to the agencys mission or
    roles
  • Health Insurance Portability Accountability Act
    of 1996 (HIPAA)
  • 42 U.S.C. 1320d Standards for information
    transactions and data elements
  • See e.g.
  • CFR 164.520 document and retention re
    fulfillment of notice obligations
  • CFR 164.524 document record sets that may be
    accessed by individuals 
  • CFR 164.530(j)(1) document retention
    requirements for administration
  • CFR 164.528 accounting of disclosures made
  • CFR 164.508 document and retention re signed
    authorization
  • Federal or state law governing administrative
    functions
  • Immigration Reform and Control Act Maintenance
    of I-9 forms
  • Federal Fair Labor Standards Act (FLSA)
  • Family and Medical leave Act (FMLA)
  • Pending litigation
  • Threatened claims

55
Preparing for E-Discovery
  • Beyond compliance, think offensively
  • What documents may become relevant and useful
    (e.g. contract correspondence, service/call logs)
  • How will you modify or suspend deletion when
    necessary?
  • How long does it take to stop recycling backup
    tapes, and who should be notified?
  • How quickly can you capture the records of key
    players (what IT resources do you need)?

56
Preparing for E-Discovery
  • How quickly can you take a snapshot of email or
    other information?
  • Consider
  • 4th Amendment implications
  • State and Federal wire tap statutes
  • Does agency have a recently signed copy of an
    Acceptable Use Policy for every IT user?
  • Develop a means to notify appropriate personnel
    when a claim is raised (agency counsel, IT
    personnel)

57
Implementation of Records Management
  • Train staff
  • Alert staff to obligations (RIC and other
    relevant record retention obligations)
  • If possible combine document retention training
    with business writing training
  • Employees should not say in email anything they
    would not want produced as public record
  • Educate employees on general discovery duties in
    litigation
  • Identify records custodian for each unit

58
Implementation (continued)
  • Compliance review
  • Have team in place (IT, legal, senior management)
  • Test un-recycled backup tapes to ensure they are
    recoverable
  • Consider requiring managers to certify that the
    policy is being followed
  • Annual review clean up days
  • Pizza, prizes etc., casual clothing
  • Reminders to review home computers, PDAs
  • Document compliance
  • Document retention compliance discussion becomes
    part of exit interview

59
Litigation/Claim Response Checklist
  • Triggering Events
  • Demand form opposing party is receive
  • Law suit served
  • Court issues preservation order
  • Litigation is reasonably foreseeable
  • Triage
  • Assemble a response team with at least the
    following
  • one IT person
  • one attorney and
  • one subject matter expert (e.g. HR in employment
    case)
  • Review relevant rules (any special requirements
    depending on jurisdiction?)
  • Analyze claims to determine
  • Subject matter of dispute
  • Key players and departments involved
  • Relevant time period (are potential relevant
    documents still being created or likely to be
    created?)

60
Litigation/Claim Response Checklist
  • Scope of ESI to Preserve
  • Relevant
  • Reasonably calculated to lead to discovery of
    admissible evidence
  • Reasonably likely to be requested in discovery
  • Identify what systems/devices are most likely to
    contain data
  • Confirm frequency and retention of backups for
    those systems
  • Identify which are accessible to key
    players and which are not

61
Litigation/Claim Response Checklist
  • Develop your litigation response plan
  • Designate those responsible for implementation
    and follow-up
  • Identify potential Fed. R. Civ. Proc. 30(b)(6)
    witness
  • Decide whether to suspend current retention
    policy (re destruction of documents)
  • e.g. backup tapes with key player documents may
    need to be retained
  • Decide whether to establish separate servers to
    capture relevant data
  • Decide whether to segregate relevant electronic
    documents so that current users/custodians cannot
    alter or delete them
  • Record decision and rationale (this is crucial in
    defending your decisions and actions later)

62
Litigation/Claim Response Checklist
  • Implement response plan
  • Orally notify affected persons (both inside and
    outside agency)
  • Issue litigation hold
  • Instructions should come from counsel
  • Identify point person to answer questions
  • Describe claims with enough specificity so that
    individuals will know how to respond
  • Describe categories of records to be
    preserved/nature of materials likely to be
    relevant
  • Provide dates of preservation if possible
  • You could have separate holds for IT personnel
    (e.g. save all backup tapes) versus key personnel
    in litigation.
  • When necessary, plan for segregation of server
    space to capture data
  • Monitor to ensure litigation hold has commenced
  • Seek certification that backups and other forms
    of relevant data are being retained

63
Litigation/Claim Response Checklist
  • Refine response plan
  • Survey key players (what hardware do they have
    etc., anything that response team didnt know
    about)
  • Through analysis of claims and in consultation
    with outside counsel first (if any) and opposing
    counsel (Rule 26(f) conference) address the
    following production issues
  • Emails in electronic form?
  • Produce or save voicemails?
  • Mirror any hard drives?
  • Produce all versions of documents (paper and
    electronic, MS Word and Word Perfect)?
  • Extract metadata?
  • Produce calendars?
  • Estimate costs

64
Litigation/Claim Response Checklist
  • Follow up
  • Issue periodic reminders/refreshers to key
    players
  • Remind departing employees about any continuing
    obligations
  • Notify all persons as needed when litigation hold
    is lifted.

65
FISCAL IMPLICATIONS OF E-DISCOVERY
  • Jenny Hedderman
  • Deputy General Counsel
  • OFFICE OF THE COMPTROLLER

66
Are we having fun yet?
  • Many respondents find that dealing with the IRS
    is the only activity more unpleasant than
    dealing with e-discovery demand, and more than
    half would rather have a cavity filled by a
    dentist than deal with an e-discovery request.
  • www.news.com/2102-1014_3-6193510.html?tagst.util.
    print

67
E-RECORDS REPLACING PAPER
  • Technology improvements have shifted of paper
    vs. electronic documents.
  • The ease, perceived informality and speed of
    Email has substantially increased the number of
    documents created which are subject to
    discovery (average person receives more than 98
    emails per day)
  • Employees who previously worked solely by
    telephone or paper, now work electronically
  • Business processes have replaced manual processes
    with vast increases in efficiencies

68
Technology has been the Hare Records Management
the Tortoise
  • Businesses have invested in Technology to improve
    efficiency, cut costs and increase profits or
    service delivery.
  • Most businesses do not yet have an
    Enterprise-wide Records Management Inventory or
    Policy (no central place that ids all paper and
    electronic records)

69
Technology has been the Hare Records Management
the Tortoise
  • Records management policies have not been updated
    to accommodate e-records
  • Records management duties have traditionally been
    relegated to lower level staff with little to no
    input from legal or upper management
  • Businesses that do have policies do not
    consistently follow the practices

70
BIGGEST RISK Lack of Enterprise Wide Records
Management Practice
  • Executives, managers and staff are not properly
    trained on implication of the records they create
  • Dont realize that these records may need to be
    retained or are discoverable in litigation

71
BIGGEST RISK Lack of Enterprise Wide Records
Management Practice
  • Many dont know that emails can be used as
    evidence
  • Staff or systems may routinely delete emails or
    other records when space becomes limited
  • IT staff are not trained in records management
    requirements and may inadvertently delete records
    to free up space

72
Who Cares?
  • Records Management has not been considered a
    critical business process priority,
  • until now.

73
ITS NOT MY JOB! Ive got enough to do!
  • Executives focus on overall mandates
  • Managers focus on critical outputs
  • Lawyers focus on legal issues
  • IT staff focus on IT
  • HR focus on employment issues
  • Fiscal focuses on fiscal issues
  • Staff focus on achieving metrics

74
E-DISCOVERY WHOSE JOB IS IT???
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IGNORANCE BY ATTORNEYS IS NO LONGER ACCEPTABLE
  • Ignorance of IT is simply no longer an
    acceptable cover for mistakes in most federal
    courts. www.ralphlosey.wordpress.com/zubu-duty/
  • Courts reject attorney excuses of computer
    illiteracy as frankly ludicrous. Martin v.
    Northwester mutual Life Insurance Company, 2006
    WL 148991 (M.D. Fla. Jan 19, 2006).
  • Attorneys can no longer blame their knowledge
    gap on lack of guidance from the courts
    E-discovery conduct has been sanctioned in all 12
    federal jurisdictions. www.abanet.org/lpm/lpt/ar
    ticles/tch02052.html

77
Whats the risk??
  • Courts have low tolerance for E-Discovery
    failures
  • Courts readily assess sanctions against Litigants
    AND Counsel for E-Discovery abuses
  • Courts view attorneys as responsible for knowing
    their clients business and systems
  • Courts are mandating that litigants recover or
    make records accessible, sometimes at costs
    greater than the value of the litigation

78
Most Common E-Discovery Abuses or Errors
  • Failing to place holds on destruction routines
    when litigation expected
  • Failing to notify court of e-discover problems
  • Failing to provide accurate records
  • Failing to fully respond to discovery requests
    with all requested records
  • Purposeful sluggishness in responding
  • Fabricated evidence
  • www.abanet.org/lpm/lpt/articles/tch02052.html

79
Wheres the money?
  • While the costs of complying with e-discovery
    can be expensive, the consequences of
    noncompliance can be far worse.
  • www.itcinstitute.com/display.aspx?id4057

80
Significant Costs for BOTH Client and Counsel if
E-Discovery Failure
  • Clients and counsel who fail to focus sufficient
    attention on preservation and production of
    relevant ESI (electronically stored information)
    face the risk severe sanctions even if
    destruction or inaccessibility was unintentional.
  • www.itcinstitute.com/display.aspx?id4057

81
Types of Sanctions
  • 29M verdict court imposed adverse jury
    instruction that juries could presume deleted
    emails were detrimental to defendant.
  • 2.75M in monetary sanctions for deletion of
    relevant emails and failure to follow its own
    E-Discovery policies.
  • Court imposed sanctions and attorney fees for
    failure to instruct defendant of its obligations
  • Default judgment against defendant when shown
    that defendant willfully destroyed records

82
WHO PAYS?
83
SANCTIONS ARE NEW COSTS
  • Abuse of E-Discovery rules will subject
    departments and the Commonwealth to new types of
    significant costs for
  • Monetary sanctions
  • adverse claims
  • awarded attorneys fees
  • legal representation costs (Indemnification) for
    employees who have failed E-Discovery
    obligations, including agency counsel
  • Mandated payment of other sides costs for
    obtaining or reviewing records
  • Mandated costs of new systems, software, forensic
    experts to locate, access or restore required
    records
  • Expert witnesses to testify related to systems,
    storage and records retention

84
OTHER COSTS
  • Departments who are not prepared for litigation
    holds and e-discovery
  • are forced to scramble to meet time constraints
  • staff time reduced for programs and services and
    reallocated to locating and producing records
  • increased costs for overtime
  • disruption of department operations
  • increased staff stress and reduced morale
  • increased system costs, software and hardware to
    comply with discovery
  • Public embarrassment for publicity for failures
    or sanctions (great press item lousy for
    business)

85
FUNDING FOR SANCTIONS?
  • Legislative funding is limited for Commonwealth
    claims for both torts and non-torts.
  • Traditionally, non-tort claims have not been
    charged back to departments, but are allowed by
    statute
  • Departments that intentionally or negligently
    fail to comply may be required to use current
    operating funds to pay for sanctions or may be
    subject to chargeback
  • Departments with significant sanctions may be
    required to seek separate appropriation to cover
    costs

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Whats in it for me?
  • Compliance is mandatory. It is not a question of
    if your Department will have a litigation hold,
    but when
  • Pre-planning now will prevent significant costs
    to your Department later
  • Improved records management process results in
    greater efficiency, better business processing
    and internal communication in most other areas
  • Significant effort to improve records management
    process shows good faith attempt to comply, which
    may lesson potential sanctions.

88
ACCESS RESOURCE NEEDS NOW FOR FY08 and FY09
  • Legal and IT staff are in best position to push
    E-Discovery as a priority
  • Legal and IT staff have opportunity for knowledge
    transfer
  • What are the Records Management requirements?
  • Do current systems and processed meet
    requirements?
  • What is needed to align systems and process to
    meet requirements?
  • Legal, IT and Fiscal and budget staff should
    identify potential fiscal resources necessary for
    compliance

89
ACCESS RESOURCE NEEDS NOW FOR FY08 and FY09
  • Identify current year funds not yet allocated
    that can be set aside for personnel, IT or other
    current fiscal year compliance costs
  • Develop budget for future resources need to fully
    comply with E-discovery and solid records
    management policy and include as part of HOUSE 1
    for FY09 or as part of IT Bond fund proposal
  • Notify ANF, CTR, ITD, AGO if significant
    E-Discovery compliance issues

90
Records Management and E-Discovery Are Enterprise
Responsibility
  • Records Management MUST be Department priority
  • Rules require coordinated effort from Legal, IT,
    Fiscal, Executive, Managers and staff
  • Records Custodian must be high level role who can
    coordinate all internal efforts

91
Records Management and E-Discovery Are Enterprise
Responsibility
  • Systems, processes and day-to-day activity must
    be aligned to support Records Management policies
  • Staff must be trained on their Records Management
    Responsibilities
  • Email use, retention and disposal are one of
    Departments biggest risk areas

92
Records Management and E-Discovery Are Enterprise
Responsibility
  • Records Management duties should be added to EPRS
    and ACES duties and performance reviewed annually
  • IT purchases, procurements and system designs
    must support Records Management retention AND
    accessibility requirements

93
Records Management On-Going Compliance
  • Records Management Policies and Inventories must
    be updated as new IT systems are procured and
    implemented
  • Staff must be retrained on updates as these
    occur, and periodically to remind of
    responsibilities
  • Department MUST CONSISTENTLY FOLLOW Records
    Management Policies

94
What you will look like then if you dont act
now!
95
Some Resources
  • http//www.thesedonaconference.org/content/miscFil
    es/publications_html
  • http//www.law.com/jsp/legaltechnology/eDiscoveryR
    oadmap.jsp
  • http//setecinvestigations.com/resources/legaltool
    s/legaltool6.php
  • http//www.impactforensics.com/checklist.html
  • http//www.metrocorpcounsel.com/current.php?artTyp
    eviewartMonthJulyartYear2007EntryNo6901

96
Contact Information
  • Rosemary Connolly Alan Cote
  • Chief Trial Division First Deputy Secretary
    of the Commonwealth
  • Attorney Generals Office Supervisor of
    Records
  • (617) 727-2200 Office of the Secretary of
    the Commonwealth
  • Rosemary.Connolly_at_state.ma.us 617-727-2832
  • Alan.Cote_at_state.ma.us
  • Linda Hamel Jenny Hedderman
  • General Counsel Deputy General Counsel
  • Information Technology Division Office of the
    Comptroller
  • (617) 626-4404 617-973-2656
  • Linda.Hamel_at_state.ma.us Jenny.Hedderman_at_state.
    ma.us
  • Stephanie Zierten Greg Massing
  • Deputy General Counsel General Counsel
  • Information Technology Division Executive
    Office of Public Safety and Security
  • (617) 626-4698 (617) 727-7775 ext. 25517
  • Stephanie.Zierten_at_state.ma.us Greg.Massing_at_stat
    e.ma.us
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