Litigation Response Planning:
eDiscovery Best Practices
Stephen O’Leary
Sr. eDiscovery and Compliance Consultant
EMC Corporation
© Copyright 2008 EMC Corporation. All rights reserved.
1
Electronic Discovery Reference Model (EDRM)
Step 1
Reduce the
amount of
retained
data
Step 2
Reduce cost and improve the quality/
auditability of eDiscovery
Policy Mgmt
of
Information
Post-notice Discovery Process
Customer goal: move from reactive outsourced model, to
in-house policy and records management, and repeatable
process for identification, collection and preservation/hold
© Copyright 2008 EMC Corporation. All rights reserved.
2
Litigation Response Planning – Take Charge!
1. Make a business case for support from a high-level officer
1. ROI associated w/ ILM for unstructured sources (i.e. email, file shares,
SharePoint and desktops)
2. Operational Efficiencies including back-up windows, higher availability
and less management
3. Organizational Risk associated with cost of collection, review and
dominant liability of content
2. Requires executive sponsorship (at the highest level)
1. Personal preference is General Counsel
3. Form a standing task force (cross functional)
1. Senior Level representation from Legal, IT, Compliance, Records
Management, Security and a line or two of the business
4. Appoint an eDiscovery coordinator and/or Legal IT person (i.e.
Records Manager) to maintain data maps and document processes
© Copyright 2008 EMC Corporation. All rights reserved.
3
Task Force Goal and Objectives – Develop LRP
Goal:
 Develop a Litigation Response Protocol (LRP) “Playbook”
– Documented, validated and repeatable business process
 LRP is a lifecycle of activities from matter identification through to
matter disposition and closure, focused on eDiscovery requirements
 Organic reference guide
Objectives:
 Identify existing people, process and technology involved in Litigation
Response
– Identify gaps between current capabilities and target capabilities; IT capabilities and
Legal requirements
 Document the target state for end-to-end Litigation process beginning
with identification of a matter through closure of the matter.
 Assimilate process to technology; identify and invest in tools where
gaps may occur.
The key is to bring eDiscovery “in-house” an enable eDiscovery within the
IT infrastructure/investments in infrastructure.
© Copyright 2008 EMC Corporation. All rights reserved.
4
Process Steps
1. Define
4. Validate
2. Assess
5. Educate
3. Document
6. Remediate
© Copyright 2008 EMC Corporation. All rights reserved.
5
Define Targeted State - Perform Assessment
1. Define and Scope Project Parameters
2. Assessment
 Operational Capabilities (Identify, gather, review, confirm)
– Organizational structure, roles, and responsibilities related to litigation
response
– Litigation Hold policies and procedures
– Legal Department processes related to eDiscovery
– Records Management policies and procedures
– IT Department processes related to eDiscovery
– Archive Policies and Procedures
– Back-up Policies and Procedures
 IT Systems Capabilities (same)
– Evaluate eDiscovery indexing, search and collection tools
– eDiscovery data segregation and protection systems and tools
– Evaluate unstructured ESI sources/systems (dimensions should include
policy procedure, consistency, enforcement)
© Copyright 2008 EMC Corporation. All rights reserved.
6
Document Litigation Response Protocol & Validate
 Lay out specific steps and
assignments (by role) for every step in
the process
– Notification, collection, preservation
 Establish a written protocol to follow
upon receipt of a discovery request,
preservation order or other similar
item
 Develop a procedure for actively
managing and monitoring compliance
 Enable a procedure for lifting the
litigation hold and restoring the
records management program
 Confirm and Validate against
capabilities
© Copyright 2008 EMC Corporation. All rights reserved.
7
Vital LRP component - Data Source Map (s)
 Create Data Source Map - Information systems topology
– System of record
– Systems w/ convenience copies
– Archives
– Disaster recovery copies / back-ups
 Understand the universe of potentially responsive ESI
– Potentially create ESI Inventory
 Understanding of ESI Accessibility
 Potentially Develop Litigation Profiles and Source Maps per Litigation
Type
© Copyright 2008 EMC Corporation. All rights reserved.
8
Additional Elements of the LRP “Playbook”
1. Defined Key Players in the process
2. Documented processes.
1. Records management program
2. Litigation Hold (you will need this for court)
3. ESI Inventory
– Understanding of potentially responsive ESI
– Understanding of ESI Accessibility
4. Data source map by litigation type/profile
5. Know your email system!
6. Document and Validate Preservation Steps Undertaken
7. Interview and select outside vendors
8. Educate key stakeholders including outside counsel
9. Prepare 30(b)(6) witnesses
© Copyright 2008 EMC Corporation. All rights reserved.
9
Go Back and Correct what is Broken
 Limit places where Email can reside
 Policy mange your File Shares
 Separate Back-up from Archives
 Address Legacy Systems
 Invest in eDiscovery Collection tools
– Collection v. analytics
© Copyright 2008 EMC Corporation. All rights reserved.
10
© Copyright 2008 EMC Corporation. All rights reserved.
11