Electric Insurance RM and ESI

Goldberg Segalla Goldberg Segalla LLPLLP

Records Management And

E-Discovery

April 21, 2009

John J. Jablonski, [email protected]

716.566.5469

mailto:[email protected]


OverviewOverview

1. Internal Hurdles to Effective Records Management

2. Preparing To Meet and Confer

3. Litigation Holds and Document Retention Policies


Effective Records Management


What Are Records?

“Information created, received, and maintained as evidence and information by an organization or person, in pursuance of legal obligations or in the transaction of business.”

- ISO 15489:2001



Records Management 1.0

“Record”“Custodian”


Then Came…


And With it…


Records Management 2.0

“custodian”

“custodians”

“custodian”

“ESI”


BUZZWORD

Electronically Stored Information (“ESI”)

All encompassing term formalized in the revised FRCP, ESI replaces “Data Compilations” and other various terms adopted throughout the years.


ESI, ESI, EVERYWHERE

How much ESI are we talking about? …



Expanding Digital Universe

Latest Figures

• 2007 est. = 281 Exabytes of ESI (294 Million Terabytes) Library of Congress – 20 terabytes Average of 45 GB per person on the planet

• 95% of all business documents re created electronically• 80-95% of business documents are never printed• 70% of historic documents are stored electronically• By 2011, the digital university is estimated to be 10

times the size it was in 2006

Source: IDC-The Diverse and Exploding Digital Universe: An Updated Forecast of Worldwide Information Growth through 2001 (March 2008)


Technophobia

“Fear or Dislike of advanced technology or complex devices and especially computers.”


COST OF ELECTRONIC DISCOVERY

• Budgetary planning is becoming more difficult.

• “Very few budgets survive first contact with the data.”

-Browning Marean, DLA Piper, Partner and co-chair of Electronic Discovery Readiness and Response Group


Legal Obligations to Preserve ESI

• Regulatory Obligations FDIC SOX (Sarbanes-Oxley) IRS SEC/NASD OSHA EEOC Workers Compensation Anticipated Litigation Litigation



Federal Common Law Obligations

“The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”

Zubulake v. UBS Warburg (Zubulake IV)



Federal Common Law Obligations “While a litigant is under no duty to keep or retain every

document in its possession. . . It is under a duty to preserve what it knows, or reasonably should known, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request.”

Zubulake v. UBS Warburg (Zubulake IV)


Spoliation

“The destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”


What’s the Big Deal?

Failure to prevent spoliation can result in draconian sanctions against litigants and their counsel.


Companies have a duty to:

Know exactly how ESI is managedKnow how to prevent the computer system from

destroying relevant ESIImplement “Legal Holds” to prevent the destruction of

relevant ESI when litigation is initiated, eminent or expected

Meet with key players to determine existence of ESI and stress preservation, Enforce Legal Holds


Companies have a duty to:

Expand the scope of Litigation Holds if necessaryRetrieve and produce accessible ESI in a usable formatIdentify not reasonably accessible ESIRetrieve and produce not reasonably accessible ESI in

a usable format if required by court order (there may be some cost shifting involved)


Rule 26(f) Meet-and-Confer


Preparing to Meet and Confer


Rule 26(f)(3)(c)

3. Discovery Plan. A discovery plan must state the parties’ views and proposals on:

(C) *any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;


Results of Timeline

Option 1 – Proactive Planning: Spend $$ now Work in a controlled environment Find the holes and plug them

Option 2 – Reactive Identification: Spend $$$$ later Rush, make mistakes, fix mistakes Find the holes and beg for mercy


What Forms of ESI Exist in the Enterprise?


DATA MAPPING



Key Elements of a Data Map

Storage Devices

ESI

Software Apps

Custodian Population


Litigation Readiness – R & IM


Legal / Litigation Holds Are A Must

“The failure to implement a litigation hold at the outset of litigation amounts to gross negligence."

Acorn v. Co. of Nassau, 2009 WL 605859 (EDNY 3/9/09)

1. Trigger Event1. Trigger Event

2. Analyze Duty 2. Analyze Duty To PreserveTo Preserve

3. Define ScopeDefine Scope

4. Implement 4. Implement HoldHold

5. Enforce & 5. Enforce & ExamineExamine

6. Modify6. Modify

NONO

Implementation / Oversight / Training / Audit / Tracking / Legal Hold Releases

Preservation Not Required

YESYES

7. Monitor & 7. Monitor & RemoveRemove


Questions?


Contact Information

John Jablonski, Esq.

Goldberg Segalla LLP665 Main Street, Suite 400

Buffalo, NY 14203(716) 566-5469 Office(716) 812-5237 Cell

[email protected]

Documents

Electric Insurance RM and ESI