#ediscovery experts

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ROI and the Corporate Legal Department

Blog Contributor: Robin Athlyn Thompson CEDS IGP CIP IG

Many of us dislike analyzing performance metrics, but, just as with other business units in the organization, the legal department must assess its operations and streamline processes.  The benefit of this exercise is a more streamlined legal department that can become a contributor to the profitability of the entire organization.  This is achieved through the analysis of performance metrics.

The need to reduce the operating costs of its legal department was the basic premise of the most well-known example of how the use of analytics can lead to dramatic improvements in the function of a corporate legal department – the DuPont Legal Model.

In 1992, DuPont made the decision to do an analysis of its legal department metrics (internal performance, vendor partnerships, and law firm relationships) to determine how internal processes and utilization of partners could be improved.  Through a review of the analytics of its operations, improvements to processes, workflows, and relationships were made which resulted in a shortened lifecycle of litigation and the substantial reduction of the cost of managing its operation.  The DuPont Legal Model has served as a guide for other corporations, large and small, to take control of managing their litigation, outside vendor partners, and outside counsel. It serves as a model for the standard of program evaluation and best practices for corporate legal departments by showing how the use of performance analytics can lead to greater departmental efficiency.

As we at BIA watch corporations of all sizes take control of their legal processes by bringing them in-house or being directly involved in decisions affecting litigation and regulatory inquiry, we wanted to present a program devoted to performance analytics and the modern corporate law department.  Our featured speaker this month is Brett Tarr, Esq., eDiscovery Counsel for Caesar’s Entertainment, who has devoted a significant amount of his career to the study of analytics for efficient management of corporate legal departments.  We invite you to join us this Thursday, March 17th, at 1 pm Eastern (register here) for this great discussion on how analytics can be used to improve the corporate legal firm.

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Managing eDiscovery In-House

Robin Athlyn Thompson, CEDS, IGP, CIP, IGP and Brian Schrader, Esq., Blog Contributors

This month, BIA kicks off our 2016 Knowledge Leadership Series of webinars.  Our 2016 series features in-house experts who will share their experience­­­ in issues that arise when managing eDiscovery and ESI at the corporate level.   There is no better topic of discussion to begin this series than a look at how more and more corporations are establishing their own eDiscovery units. This webinar will feature Ben Robbins, eDiscovery and Information Governance at LinkedIn, who is presenting “Establishing Corporate Discovery Units.”  

It is no longer a surprise to see data and articles informing us that more and more corporations are establishing in-house discovery management teams. Nor is it a surprise to see that corporations are managing the oversight of, and making direct decisions regarding, ESI and discovery management for the organization.  This has been a trend that we first began monitoring in 1992 when DuPont established a legal model that resulted in substantial litigation cost savings and a shortened lifecycle of litigation.  We’re still talking about that model nearly 25 years later.

What we are seeing more of these days is a trend for mid-size and smaller corporations to establish their own teams to do this work rather than rely on outside counsel.  

Over the last decade or so, we have based much of our market forecast on hiring trends.  We have seen more and more positions advertised in corporations for eDiscovery positions, and those job descriptions have revealed 6 communities of practice that are routinely a part of the eDiscovery process.

In fact, just in the last 2 weeks, our review of hiring trends shows 26 companies advertising for eDiscovery personnel requiring experience or certifications in records management (CRM) and governance (IGP); security and privacy certifications (CISSP for example); and/or risk management backgrounds, IT certifications, or legal   experience/eDiscovery experience including the CEDS designation.  

Another interesting trend we observe occurs here with our educational series. Since we began this series in 2012, more and more of our webinar attendees come from these same business areas.  And that trend continues into our daily business, where over 90% of our work at BIA today is directly for corporate clients.  

And, in fitting with that focus on these areas, nearly all our corporate clients have taken control of at least the left side of the EDRM, managing legal holds, data collections and preservation and ECA tasks in-house using our TotalDiscovery solution. Indeed, most of those corporate clients are also centralizing all of their review hosting and attorney review with BIA as well to further keep close control of the entire process.  

By doing so, not only do are corporations able to leverage their legal spend across matters, but often more importantly, they have complete control of their enterprise data throughout the eDiscovery process – an issue of more and more importance as organizations develop a more holistic approach to their organizational eDiscovery and information management processes.  

We look forward to you joining us for this exciting webinar and hearing your feedback on your experience in building corporate eDiscovery teams.

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Top 10 Questions on the Ethics of Legal Holds – Part 2

This week’s blog contributors are Barry Schwartz, Esq., CEDS and Brian Schrader, Esq.

As promised in our blog on Tuesday, here is part 2 of the top 10 questions on the ethics of legal Holds.  If you’d like to replay our webinar on the ethics of legal hold, you can do so here.

Is it a good strategy to collect data from all employees exiting the company even if they are not on a legal hold?

We also get this question frequently, and in fact, it has been the subject of a prior blog.  What happens if Mary leaves a company and six months later we find out she was an integral part to a lawsuit, and we didn’t do anything to preserve her data?  As is often the answer in the legal arena, this falls to a test of reasonableness. Was it a good or bad decision not to include her? Was your decision reasonably based on what you knew at the time?  No one is perfect, and no one expects perfection. You must balance risk versus reward.

If I am in a company that has a lot litigation, and I’ve got certain people, managers, or executives who are regularly involved in litigation, I may want to preserve their data as they exit the company for a set period of time to make sure the information was not important or relevant to any ongoing or anticipated litigation. On the other hand, if you are in an organization with 100,000 employees and frequent turnover, that may not be realistic or economically feasible, so it comes down to what a reasonable person would do.  

It’s more important that you have a defined process, that you have taken time to look at what your obligations are and how you will handle exiting employees to be able to show that you are routinely making reasonable decisions.  In most organizations this area is a black hole, and they are not looking at this issue at all and are caught off guard.  If you put in a process where you evaluate employees, and look at key employees, especially under the fairness and general balancing approach reflected in the upcoming Federal Rules amendments, you will be able to show the court that you had a reasonable, defensible process.  Again, courts do not expect perfection – they expect a reasonable, thoughtful approach.

How important are custodian questionnaires, and should they be used in every matter, or only larger matters?

Custodian questionnaires are one of the most useful, yet underutilized and often underappreciated tools in the discovery process.  We cannot recommend enough that you should almost always issue custodian questionnaires, regardless of the size or type of litigation. Custodian questionnaires are often used to ask custodians where and how they create and store ESI, but they can be so much more useful than that.  

You can use them to ask custodians whether anyone else should be considered a custodian, and by doing so, help bolster the defensibility of your custodian identification process. You can ask custodians factual questions as well – it’s not just about finding data – it’s a questionnaire, so ask anything you’d like, and don’t worry, it’s all privileged.  

Some people look at the custodian questionnaire as a burden; we tell our clients to look at the custodian questionnaire as one of the best tools they have and, especially in cases with larger numbers of custodians, there is nothing more efficient and cost effective than a custodian questionnaire to aid in the fact-finding and custodian and ESI identification process.

May custodians be released after all data has been collected from them?

No, you shouldn’t release custodians in the middle of a case unless you have an agreement from opposing counsel or a court order.  You never know when something in a lawsuit will take a left-hand turn or some entirely new (but related) aspect may arise, and if you’ve released your custodians because you thought you had everything collected, you’ll be caught in a pretty hard spoliation argument.  

Legal hold obligations don’t just happen at the start of a litigation; those obligations generally continue throughout pendency of the case.  While releasing custodians won’t necessarily result in sanctions, as the party seeking sanctions (especially under the pending rule amendments) still would have to prove that relevant data was lost, releasing custodians early, without an agreement or court order, would be an incredibly risky move.  

If a company has third party vendors, is it the vendor's responsibility to distribute and maintain the legal holds for its relevant employees or does the company need to track these as well?

While we haven’t seen a case on point, based on the reasoning in available case law, there is no delegation of the legal hold responsibility.  Thus, it would come down to you working with the third party as to what they are going to do and how they are going to do it.  There’s nothing that says you cannot issue individual notices to the individual employees (or contractors, etc.) of that third party, but we cannot image doing so in a vacuum.  We wrote a blog post specifically talking about legal hold obligations when it comes to third parties: http://blog.biaprotect.com/post/98770710942/dont-forget-third-parties-when-issuing-legal.

Does each legal hold stand on its own, or are there overlapping concerns?

Generally speaking, Courts will look at each legal hold process on its own, but there can be exceptions, especially where cases are arguably related.  For example, the U.S. District Court for the Western District of Louisiana recently found in In re: Actos (Pioglitazone) Products Liability Litigation that a previous legal hold that arose nearly a decade before (and was still active) was related enough, and the legal hold broad enough, as to cover materials that should have been preserved for the new litigation, and thus, found spoliation of evidence.  In another case, In re: Ethicon, Inc. Pelvis Repair Systems Product Liability Litigation, the court found a similar prior legal hold had been put in place, but because that prior legal hold was much more narrowly scoped, the sanctions were not as severe.

When I release custodians from a legal hold in one case, what happens if they are on other legal holds?

While there’s no clear cut obligation to do so, we recommend to our clients that, in the release notice, they remind the custodian of any other legal holds they might be on that are still active.  Indeed, in our TotalDiscovery solution, you can do that automatically as part of that process.

One of the reasons we developed our educational series of programs, was to encourage stakeholders to stay continually educated and to ask questions.  Those questions generally lead to better understandings and processes. If you have questions that you don’t see answered in our blogs, and you’d like our help, write us at [email protected].  Speaking of education: join us next month on November 19th at 1:00 PM/ET when the topic will be the eDiscovery Project Manager with Barry Schwartz, Esq., CEDS and Adam Feinberg, CCFS, CEDS. You can register for that program here.

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Top 10 Questions on the Ethics of Legal Holds – Part 1

This week’s blog contributors are Barry Schwartz, Esq., CEDS and Brian Schrader, Esq.

Our October Knowledge Leadership Series webinar featured our most requested topic, Risks and Responsibilities: The Ethics of Legal Holds. The webinar attendees asked some great questions on a variety of topics, and we thought we would share our answers to the top 10 questions and concerns they raised, as we know most of our readers are probably asking many of the same questions and facing many of the same issues themselves.  We’ve summarized the questions and answers below in a two-part blog. Look for Part 2 on Thursday! If you’d like to hear the entire webinar, you can replay it here.

Is it necessary to put all employees on notice of the issuing of a legal hold in addition to key custodians specifically?  

No. In fact, you should never just blanket all employees with a legal hold notice. If everyone gets a notice every time your company is sued, regardless of their individual involvement or relevance to the lawsuit, then very quickly you’ll see a “boy who cried wolf” mindset develop where those notices are simply ignored.  Indeed, that could be harmful not only to the effectiveness of your legal hold process, but it could be used by your opposition to show that the entire process was seriously flawed.

If you feel you need to let your employees know that there is a lawsuit pending to quell any internal rumor mongering, then by all means communicate that message to your employees as you see fit, but don’t make that announcement part of your legal hold process.  

Does an intranet posting of a Legal Hold suffice?

No. An internet or intranet notice, by itself, is not sufficient.  That would be akin to posting a memo on an employee bulletin board, and courts have found that is insufficient on its face.   You must directly notify the custodians, and you must get some form of acknowledgement from your custodians that they understand their obligations.    

When a company has a document destruction policy keeping everything for at least 10 years, does the importance of a document hold decrease?

No. You cannot rely on your document retention policy and simply ignore your legal hold notification responsibilities, and courts have repeatedly rejected a party’s deferral to their document retention policy as a defense against spoliation claims.  The point is that even where the general practice or policy might be to essentially store everything forever, it’s not the same as specifically instructing custodians that they cannot destroy data – that they specifically have an obligation to preserve data.

Are there any recommendations on triggers tied to severity? Specific to claims typically w/insurance coverage - whether work comp, auto accident, CGL, etc.?

That’s a tough one to answer because if you have a claim of say $5,000, and you don’t believe it warrants a legal hold, and that claim later mushrooms to a bigger claim and you didn’t issue a hold, you’re left standing with a lot of exposure for failure to issue a legal hold.  So the question becomes how much risk are you willing to assume?  

There’s no bright line rule to the triggering event.  The standard is: what would a reasonable person do? The issuance of the legal hold, and even the actual collection process itself, is something we continually remind our clients is the cheapest thing they will do in any litigation.  So, we always recommend that, when in doubt, default to issuing a legal hold notice.  Look at it as an insurance policy: yes it costs you something now, but if called to the carpet, it will protect you later and probably save you vast multiples of what it cost you to issue the hold. Sure, under that policy, you may issue a legal hold when you didn’t need to, but the costs of that are a heck of a lot less than the potential case ending sanctions you’ll face if you made the wrong choice.

Many times you don't want to give notice throughout an organization that you are going to file a lawsuit - how do you balance the requirement to issue a legal hold without disclosing that a lawsuit is on the verge of being filed?

First, as we addressed earlier, you really should never be issuing a legal hold “throughout an organization.” That said, there comes a point where your legal obligations are going to trump your desire for secrecy.   Strategy and secrecy concerns are not a defense for failing to issue a legal hold.  Once you have made the decision to file a lawsuit or you know there’s a reasonable anticipation of litigation, your obligation to issue the legal hold starts, and there’s little or no excuse courts will accept to override that obligation.

Although we’ve never seen a case on point, based on a multitude of cases that have rejected all sorts of defenses or excuses for not issuing a legal hold, avoiding issuing a legal hold notice to protect a corporate secret would likely be rejected outright.  By all means, tell the custodians the nature and secrecy of the topic and instruct them to keep the matter confidential – you even could do that directly in the legal hold notice itself – but don’t wait to issue the legal hold notice.  

If a custodian is a board member who is not part of your organization and they use webmail, like Gmail or Yahoo, does the opposing party have to engage with the board member directly or would our organization be "accountable" for preserving and collection information from the board member's personal accounts?

You would likely be held responsible for the preservation of the data, even if in a personal account.  The legal hold obligations apply to anything in a party’s “possession, custody or control…” - which casts a pretty wide net. As we discussed in the presentation, in the case Haskins v. First American Title Insurance Co., Civil No. 10-5044 (D.N.J. 2012) the Court held that defendant had to assert a litigation hold on its present and former independent title agents, as the defendant had clear (and contractual) control over the data held by that third party.

So, whether you would consider a board member a “third party” or not doesn’t really matter.  In that relationship, even if the company doesn’t technically have possession of the data in question, they’d likely have control over that data either by contract or operation of common law.  Thus, a court is likely to find that the company held the obligation to ensure any potentially relevant data was preserved.

That said, from a practical perspective, you’d most likely want to keep those individuals within your overall discovery scope.  While directors could clearly be individually subpoenaed, it would be much more effective and likely strategically important for you to retain control and oversight of that process.

How often does BIA suggest custodians be reminded that they are on a legal hold?

Generally speaking, monthly or quarterly reminders are usually appropriate.  With solutions like our TotalDiscovery software, we see clients actually create different reminders for different subgroups – oftentimes reminding primary custodians monthly and secondary or edge-case custodians quarterly.  Clearly a monthly reminder would be the most defensible, but like most other things in eDiscovery, it really depends on the nature of the case, the claims, and the relative involvement of the various custodians.  

One of the reasons we developed our educational series of programs, was to encourage stakeholders to stay continually educated and to ask questions.  Those questions generally lead to better understandings and processes. If you have questions that you don’t see answered in our blogs, and you’d like our help, write us at [email protected].  Speaking of education: join us next month on November 19th at 1:00 PM/ET when the topic will be the eDiscovery Project Manager with Barry Schwartz, Esq., CEDS and Adam Feinberg, CCFS, CEDS. You can register for that program here.

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The Information Governance Professional Certification and the eDiscovery Professional

There is no shortage of articles about the increased importance of information governance and its effect on the communities of practice of legal, risk, privacy, security, IT and RIM.  There are many definitions describing the practice of information governance, but simply put, information governance is described as the activities and technologies that are used to help organizations maximize the value of its information assets, while minimizing associated risks and costs associated with those assets.  One of those identified risks is regulatory investigation, litigation, and eDiscovery.

This week our blog takes a look at the IGP (Information Governance Professional) certification, and its relevance to our work in eDiscovery.  Coming from a background of managing discovery in a corporate environment, I viewed this certificate as one that was worth pursuing for several reasons:  (1) The demand for IGP in job descriptions such as legal analysts is increasing, (2) our clients are telling us that the strategic planning of governance initiatives in their organizations includes plans for preservation, hold and ESI workflows, and (3) there are industry predictions that eDiscovery will eventually become a discipline of information governance.  ARMA describes the IGP candidate as someone who has earned the only certification “that demonstrates he or she has the strategic perspective and the requisite knowledge to help an organization leverage information for maximum value while reducing the costs and mitigating the risks associated with using and governing this important asset,” which describes most of us who work with eDiscovery projects. 

When my company offered to sponsor our education and testing, I took advantage of it.  After earning the IGP credential (yippie I passed!), I am even more convinced that this was a worthwhile educational and professional pursuit, and highly recommend it to others in our industry because it intersects all of the processes and duties we perform on a daily basis.  Those of us who have IT security and eDiscovery certifications will find that this certification adds value, intersects, and compliments those certifications. 

The IGP tests knowledge in each of the following areas:

·         Managing Information Risk and Compliance - understanding and mitigating information-related risks through such activities as researching and monitoring legal, regulatory and industry-specific compliance requirements; and creating and monitoring internal policies and procedures. The IGP collaborates with stakeholders to determine acceptable risk levels, and then designs and implements methods for measuring and monitoring the effectiveness of the organization's plan to mitigate its risk.

·         Developing IG Strategic Plan - developing a strategic plan that demonstrates an in-depth understanding of the organization's business goals, corporate culture, financial resources, and commitments.

·         Developing IG Framework - establishing the parameters of the organization's IG efforts, including developing policies and standards the organization should meet; defining the authority, roles, and responsibilities the organization must establish; designing IG program communications and training; and developing audit and enforcement mechanisms to ensure the IG program can be measured, controlled, and improved.

·         Establishing the IG Program - determining the IG program scope and goals, such as identifying specific program components, acquiring a mandate from executive leadership, establishing reporting requirements, assigning specific roles and responsibilities, establishing specific program metrics and desired outcomes, and implementing and managing the IG program.

·         Establishing IG Business Integration and Oversight - aligning the IG strategy and program to enhance business goals, needs, and objectives. The IGP works closely with business units to determine steps for implementing the IG program in their divisions and for ensuring it is monitored and audited periodically to confirm the business is complying with changing laws and to confirm the IG program does not impede the business goals.

·         Aligning Technology with the IG Framework - partnering with IT leadership to understand the organization’s technology landscape, the ways technology is used by the business, and how to align the IG and Technology teams’ strategies and operations, including hardware, software, and data lifecycle management. The IGP also evaluates technology trends that affect IG and partners with IT to assess opportunities and threats.

In the next few weeks, we’ll look at the relationship of our work in eDiscovery to each of these six areas.

Robin Athlyn Thompson, CEDS, IGP, CIP,  IGp

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Supreme Court Approves FRCP Amendments

This week’s blog comes from BIA’s Barry Schwartz and Brian Schrader.  

Over the last several years, there has been no shortage of articles, webinars, forums, and blog posts about the proposed amendments to the Federal Rules of Civil Procedure. But now, with the Supreme Court’s decision on April 29th, the FRCP amendments are just one small step away from becoming effective. Absent congressional action (and none is anticipated), the amendments should become effective on December 1, 2015.

Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, and 55 will each be subject to modifications, while Rule 84 and the Appendix of Forms will be eliminated. While we won’t review each rule change in this post (go here for that in-depth discussion), the amendment to Rule 1 sets the tone for the amendments generally, stating that the FRCP should “be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Anyone involved with eDiscovery—whether as clients, attorneys, experts, or vendors—should review the changes now (if that hasn’t already happened) and prepare for those changes well in advance of the expected effective date. Two of the primary driving forces behind the amendments are the goals of shortening discovery time frames and helping ensure reasonable costs—neither of which is achievable absent planning and preparation. The rules also up the expectation that the parties and counsel will be informed and prepared for mandated conferences.

One special note is that Rule 16(b)(3)(B)(iii) now specifically allows ESI preservation efforts and obligations to be addressed in scheduling orders. Hence, given that preservation efforts likely now will be discussed as a matter of course at the very first conference, it is even more important that when a triggering event occurs, proper action be taken to issue a legal hold notice and avoid the risk of a spoliation claim or other adverse order.

Solutions, such as our TotalDiscovery platform, enable the quick, efficient, and inexpensive issuance and maintenance of litigation holds and help ensure the defensible preservation of ESI and other information. With its many features, including fast and flexible legal hold creation, simple acknowledgement tracking, automated reminders and releases, full audit trails, detailed reporting, and much more, lawyers and companies now have an easy—and inexpensive—way to comply.

In the end, we have two simple words of advice: Get Ready!  Expect time frames from filing to court room to be shorter. Expect judges to be more informed on and involved in eDiscovery issues than ever before, including discussions of the processes and tools available. Expect opposing parties to know what can be accomplished through technology, what is reasonable to ask for, and what is not reasonable as well. Those are just some of the ramifications we expect the amendments to produce.

While the amendments may feel to some like they have been pending for an eternity, there is now a light at the end of the tunnel. December 1st is less than seven months away, and if you don’t start preparing now, that light at the end of the tunnel may be a locomotive heading in your direction . . .