Legal IT Forum 2007
Litigation Readiness
Andrew Haslam
Jonathan Maas
John Forsyth
Andrew Dey
Allvision Computing
Agenda





Page 2
What is Litigation Readiness and why is it
so important now?
What are global corporations doing today
in response?
How has this environment impacted US
law firms?
How has this environment impacted UK
firms to date?
How might UK firms be impacted in the
future?
Allvision Computing
Drivers in electronic discovery
Rules
 New laws, i.e. changes to the CPR, FRCP
Complexity
 Increased complexity and dependency
 Increased use of computer systems
 Increased digital-only existence of data
Volumes
 Bigger storage volumes
Allvision Computing
Trends in US Courts
Company said they located and searched all
relevant backup tapes, but had not.

$1.4 billion in damages, adverse inference instruction,
default judgment
Coleman v. Morgan Stanley
Employees deleted relevant e-mail, IT continued to
rotate and overwrite backup tapes.

$29 million damages, adverse inference (in ordinary
employment case)
Zubulake v. UBS Warburg
Executives did not print e-mail subject to litigation
hold, IT continued 60-day purge

$2.75 million fine, executives precluded from testifying
US v. Philip Morris USA
Allvision Computing
What is Litigation Readiness




“A better fence at the top of the cliff”
Sound RIM as a good efficient business
practice
Becoming essential for certain firms i.e.
SOX, FSA, Basel 2 and MiFID
May be part of due diligence in a M&A
situation
Allvision Computing
Why Litigation Readiness?




Regulatory and Compliance drivers
Litigation issues
Data Protection problems
General information management “Best
Practice"
Allvision Computing
Corporate Strategies
1.
2.
3.
4.
5.
6.
7.
Profile your systems and data
Reduce the pool of backup/archival media
Extend records/retention policy to ESI
Establish “Preserve Now” team and process
Streamline litigation hold process
Manage outside counsel and vendors
Litigation Process “Outsourcing”
Changing the Corporate Architecture
Allvision Computing
Emerging “best practices”








Be first to put a reasonable plan in place, to your
advantage, then cost shift
Issue litigation hold quickly, narrowly, and often
Proactively involve IT at a level that gets results,
pay attention to spoliation via maintenance
processes/ programs
Preserve quickly (‘anticipation’ of lawsuit), on a
rolling basis
Preserve metadata
Collect accessible data, broadly, cull later
Sample to reduce population of documents sent
to review
‘Conceptual’ document review tools
Allvision Computing
Efficiencies in e-disclosure
Original Volume (and Cost)
Present
Review
Host
Proactive
Process
Gather
Preserve
Scope
Litigation
Reactive/technology
Readiness
Allvision Computing
The Challenges
1.
2.
3.
Understand the details of client IT systems
 Think global
 Scope of data – locations, volume, timeframe, retention
 Preservation options, and cost to access, cull and
produce
Preserve data/metadata upon ‘anticipation’
 Employee litigation holds should be robust, but may be
insufficient.
 IT should proactively preserve from a system standpoint
 Metadata, backup tapes, what is reasonable?
Develop ‘CMC’ strategy for negotiating
 Defensibility of preservation
 Accessibility/inaccessibility for collection
 Timeframe/format of production
Allvision Computing
So What?


How has this environment impacted UK
firms to date?
How might UK firms be impacted in the
future?
Allvision Computing
Law firms and EDD

Respond to client requests



Client is under investigation or subject to litigation
Client requests back history
Client requests destruction or return of materials

Respond to request from regulatory body or government

Respond to a Data Access Information Request



Comply with a protective order issued by a court
prohibiting sharing of information within the firm
Preparing to defend itself against action brought by
client or employee
Reasonable expectation of litigation (US)
Allvision Computing
What might Litigation Readiness
involve?



Records Management policy, procedures and
documentation
Demonstrable proof that IT information
management policies and procedures align with
and enforce RM policy
Defensible litigation hold processes, procedures
and documentation
Allvision Computing
What might Litigation Readiness
involve?




Defensible preservation processes, procedures
and documentation (paper and electronic
information)
Up-to-date inventory of technology systems
Up-to-date data map
Methods to collect and produce required
materials
Allvision Computing
What Challenges Might a Firm
Face?

Getting management support in advance


Firm’s believe they are immune until an event occurs
Records management policies and procedures are
notoriously hard for firms to embrace
Allvision Computing
What Challenges Might a Firm
Face?

Balancing interests of competing stakeholders




Lawyers want to keep everything “forever”
Firm as a business needs to routinely dispose of
information in accordance with RM policy in order to
be prepared to defend itself
Client wants firm to maintain information in
accordance with the client’s interests
Establishing effective communications between
IT and legal
Allvision Computing
What Challenges Might a Firm
Face?

Doing the work


Most IT systems and procedures are designed for
business continuity and recovery, not disclosure
activities
Data privacy rules and regulations can complicate
work substantially


People mix personal and business information and you might
have to uncouple them
Work efforts to preserve, collect and product can be
labour intensive for IT if not planned for in advance
Allvision Computing
What Challenges Might a Firm
Face?

Covering the costs—which can be enormous



Identifying and capturing costs (hard and soft)
Recovering costs from clients
Absorbing unrecoverable costs in the firm’s budget
Allvision Computing
What actions should be on your
“Strategic To Do’s” list?

Create a policy dialogue with firm’s leadership



Understand potential risks and costs of doing nothing
Present plan for E-Disclosure preparedness and seek
support
Make sure IT’s operational procedures fit with
the firm’s business goals for e-Disclosure
preparedness
Allvision Computing
What actions should be on your
“Strategic To Do’s” list?

Keep pace with evolving standards and changes
in environment



“You will be measured today by tomorrow’s
standards”
Enforce records retention/destruction policy on
electronic information
Implement a comprehensive matter centric
computing environment, if possible
Allvision Computing
What items should be on your
“Tactical To Do’s” list?


Establish a formal litigation hold process
Understand the high risks of e-mail and manage
aggressively



Set shortest possible retention period for un-filed emails and enforce automated deletion
Ensure backup procedures are aligned with retention
rules
Understand and mitigate risks of users creating
personal e-mail archive files
Allvision Computing
What items should be on your
“Tactical To Do’s” list?

Maintain historical and current inventories of
data, media, and user access rights



Establish operational policies and procedures to keep
them current
Distinguish between reasonably accessible and
inaccessible locations
Maintain historical and current inventories of
technology infrastructure
Allvision Computing
Questions?
Allvision Computing