Succeeding at eDiscovery What you need to know

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Succeeding at eDiscoveryWhat you need to know
Department of Executive Services Records and
Licensing Services Division Archives and Records
Management Section
Gregory Trosset ERM Project Program Manager
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Why is it importantWhat you need to know

• Federal Rules of Civil Procedure (revised)
• Parties need to discuss (early on) the discovery
  aspects of ESI1, provide for timely production
  (in native format), preserve ESI with metadata
  intact, and provide for a verifiable chain of
  custody
• Successful eDiscovery starts with good records
  management
• Provide staff with a way to comply (tools)
• Set expectations (policy)
• Communicate (education)
• Conduct oversight (compliance)

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The Records Management ShiftWhat you need to know
Today
High
Records created electronically 90 Enterprise
data growth over the next five years 650 2
User Participation
Time
60s
Low
Managed
Unmanaged
Content
Managed - Well defined, centralized control,
structured schema, few participants
Unmanaged - Undefined, decentralized, flexible
schema, many participants
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AnalysisWhat you need to know

• Are we ready?
• 14 - Organizations consistently following their
  retention schedules
• 55 - Organizations addressing retention for
  email and Web 2.0
• 56 - Organizations with a formal discovery plan
• Most organizations..
• Are not retaining everything they should
• Lack policies and procedures
• Are at risk for significant sanctions/costs

2007 Electronic Records Management Survey
Cohasset Associates
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The costs of not being readyWhat you need to know

• Discovery
• 35 - eDiscovery portion of the total cost of
  litigation 3
• 1,800 to 2,500 Legal review cost per gigabyte
  4
• 11M DuPont study over 5 years (50 of record
  reviewed needlessly) 5
• Sanctions
• 1.45B Coleman Holdings v. Morgan Stanley
  (inability to produce records) 6
• 29M Zubulake v. UBS Warburg (Spoliation
  presumption) 7
• 6.2M Murphy Oil USA v. Fluor Daniel (failure
  to follow policy) 8
• State orders City Hall computers secured in
  email dispute 9
• King County agrees to pay 255,000 to settle
  public records lawsuit 10

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ToolsWhat you need to know

• ERMS Electronic Records Management System
• Not document management
• Compliance tool
• Complex retention requirements (ie. Govt.)
• DoD 5015.2 (defacto standard)
• Features
• Categories (what to keep)
• Standardization (category level)
• Built-in retention policies (how long)
• Auto-profile (simplify end user interaction)
• Metadata preservation
• Auditing
• Chain of custody authenticity (trustworthy)
• Rich security (access controls)
• De-duplication (control copies)

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Tools (cont.) What you need to know

• Questions and cautions
• Upfront costs (pay me now)
• Scope (electronic, paper, imaging, web)
• DM integration
• DoD Certification (do you really need this?)
• Executive support
• Ongoing support
• Significant lead time to deploy
• File plan development
• Big bucket approach (keep it simple for end
  users)
• End-users (must be in the equation)

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Other tools Use with caution What you need to
know

• Automated policy (auto-delete)
• Ignores retention
• All records are not created equal
• Lost institutional knowledge
• Archiving tools (pay me later)
• Keep it all
• If you have it, you may have to produce it
  (review )
• Storage acquisition are decreasing as TCO
  continues to rise. 11
• Ignores retention (migration issues)
• Disaster recovery tapes
• Allow users to manage retention (just in case)
• Allow pst files to proliferate (personal
  archives)

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Policies What you need to know

• Email Management
• Appropriate use (we all have this)
• Its a record (but not a record series)
• Provide guidelines (How to manage)
• PST issues
• Former employees (the black hole)
• Web 2.0
• It may be a record
• Challenges
• Ownership
• Control
• Retention
• Your staff are using it
• Provide guidance
• Encourage vs. discourage
• Insert yourself into the discussion

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Policies (cont.) What you need to know

• Legal Hold
• Define roles
• Everyone
• Communicate
• Suspend destruction
• Compile
• Attorney
• Describe, Issue, Remove
• Periodic review/reminder communications
• Coordinate
• Department head/delegate
• Internal procedures
• Communicate hold
• Document (everything)
• Compile index
• Coordinate
• Media neutral
• Native format (preferred)

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Policies (cont.) What you need to know

• Records Management
• What should you be retaining?
• How long should you keep it?
• Be consistent (follow your own policy)
• Document what you do (ie destruction)
• Replication (primary/secondary copies)
• Metadata issues (native format)
• Media neutral

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Policy considerations What you need to know

• Involve the right players
• Records Management
• IT
• Legal
• Risk Management
• End users?
• It must be practical
• Employees must have the right tool to comply
• No policy could be better then a unenforceable
  policy
• Shouldnt negatively impact line of business
• It must be consistently employed
• Media neutrality
• Everyone must play

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Education Oversight What you need to know

• Education
• Senior Management
• Informed decision-making
• Champion for your program
• New employee (more then just the 5 minute sound
  bite)
• Ongoing (reinforce)
• Brownbag lunches
• Website
• Quick tips
• Oversight
• Performance appraisals
• Hold employees accountable
• Service Level Agreement
• On-demand audits
• When is it appropriate
• Dont become the records police

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What is King County doing

• Scope
• Five year project
• Electronic, paper, imaging, web
• 4.9M budget
• Approximately 9,000 end-users
• Phase I Planning (2006 2007)
• Business case
• Educate senior leadership, identify sponsor,
  funding, etc.
• RFP and selection process
• Phase II Pilot for eRecords (2008)
• Human Resources Division (75 users)
• Installation, configuration, training curriculum,
  etc..
• Identify policy needs

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What is King County doing (cont.)

• Phase IIIa Deployment and additional modules
  (2009)
• Configure and deploy eRecords (Core agencies)
• 800 end-users
• Implement Physical Records module
• Policy development
• Phase IIIb Deployment and additional modules
  (2010)
• Continue eRecords deployment (Core agencies)
• 1,200 end-users
• Implement Digital Imaging
• Implement Web Records management
• Phase IIIc Common Records deployment (2010
  2011)
• Rapidly deploy eRecords countywide (existing
  categories)
• 7,000 users
• Address 70 of records needs (by volume)
• Limited development work
• Production support (2011 and beyond)
• Address remaining categories on an ongoing basis

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Summary

• Success at eDiscovery
• Starts with RM
• Is a collaborative effort
• Policy and tools go hand-in-hand
• Upfront investments can pay off down the road
• Explore all options, but be cautious

Records Management
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Thank You
Questions?
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Appendix

• 1 ESI Electronically Stored Information
• 2 Top 10 IT Management trends for the next five
  years Gartner Group Inc., Computerworld, Oct
  2009
• 3 Minimizing the Pain of eDiscovery with a
  Proactive Strategy Osterman Research, Aug 2009
• 4 Brian Dirking and Raghu R. Kodali,
  Strategies for Preparing for E-Discovery, The
  Information Management Journal, May/June 2008
• 5 Julie Gable, What CIOs Should Know About
  Records, CIO Decisions, November 2005
• 6 Coleman Holdings, Inc. v. Morgan Stanley
  Co.
• 7 Zubulake v. UBS Warburg
• 8 Murphy Oil v. Fluor Daniel
• 9 The Boston Globe, Sep 14, 2009
• 10 King County, WA v. Sharkansky
• 11 Alan Pelz-Sharpe Storage costs for ECM and
  DAM Systems CMSWatch, Aug 13 24, 2009

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Reasons for compliance
California Records Management Act Government
Codes 14740-14774 As used in this chapter
"record(s)" means all paper, maps, exhibits,
magnetic or paper tapes, photographic films and
prints, and other documents produced, received,
owned or used by an agency, regardless of media,
physical form or characteristics. California
Public Records Act (PRA) "Public Records"
includes every means of recording or
communication or representation any writing,
photograph, drawing, sound or symbol, whether
paper, film, magnetic media "computer" data or
other document -- which relates to the public
business, and which is prepared, owned, used, or
retained by the agency. The Federal Rules of
Civil Procedure Parties need to discuss (early
on) the discovery aspects of ESI1, provide for
timely production (in native format), preserve
ESI with metadata intact, and provide for a
verifiable chain of custody.