LinkedIn - eReadiness 2012

2nd Annual eDiscovery for the Life Science Industry Conference

Spiwe L.A. Pierce February 28, 2012

© Spiwe L.A. Pierce



4

Cleanup days

inconsistently followed

Not all areas of the company

followed document retention policy

High internal cost of collecting

documents for discovery

Data lost when employees exited

despite litigation holds

Functions overspending on

storing unnecessary documents

Document retention policy

in need of updating

Documents stored in environmentally

insecure facilities – risking loss

Uncertainty and lack of direction caused

employees to keep too much data

Risk $


5

Product X Document Review Cost

First Line Review – English Language ($ per Document) $1.00

Number of Documents for John Doe 9,000.00

Number of Documents for Missy Mumford 5,000.00

Total Cost $25,000.00


6

1. 1985: (UK) Where documents had not been preserved after the commencement of proceedings,

the defaulting party risked adverse inferences being drawn for such spoliation, Infabrics Ltd v

Jaytex Ltd

2. 2008: (US) $8.5 million sanction for Qualcomm’s failure to produce 46,000 emails that it had

3. 2010: (US) Creative Pipe sanctioned, and employee imprisoned for up to two years or until he paid

the Plaintiff’s attorney fees and costs for willful violation of serial Court orders related to

document production

4. 2010: (UK) The deliberate destruction of documents during a court proceeding gives rise to the

entry of a default judgment, Court ordered sanctions, and the striking of defenses to the claim.

5. 2010: U.S. courts can compel cross-border discovery despite foreign statutes barring production

of the requested information. See, e.g.,

Devon Robotics v. DeViedma (denying motion for protective order because nonproduction

would undermine important U.S. interests and there was no evidence disclosure would

violate Italian law);

In re Air Cargo Shipping Services Antitrust Litig., (granting motion to compel because U.S.

interest in enforcing antitrust laws outweighed South African interest in enforcing blocking

statute, in particular where prospect of criminal sanctions for violating South African statute

was "speculative at best").

2011: Heraeus Kulzer, GMBH v. Biomet, Inc. in allowing discovery in U.S. federal court for

use in a German court, it was held that a litigant in a foreign country can seek discovery

related to that litigation in a federal district court and obtain as much discovery as it if it

litigation had been brought in that (US) court.


7

Associate General Counsel

•Global litigation management for all

cases, including commercial

litigation, IP, personal injury,

product liability, workers’ comp

•Labor & employment matters for

North America

•Developing policies, practices &

procedures for management of

outside counsel, and litigation risk

mitigation across internal functions

•Periodic communications with

internal stakeholders and clients re:

litigation matters & disputes

•Legal Business Partner to 8

countries

Senior Paralegal

•Witness identification & assistance

with prep for trials & depos

•Investigating and triaging claims,

disputes, subpoenas, etc.

•Running mock trial & trial prep

calendars

•Communications with insurers,

internal stakeholders, outside

counsel and claimants

•Document production in litigation

matters and in response to third

party subpoenas

•Building and maintaining databases

for legal pleadings,

correspondence, documents,

exhibits, dockets, trial

calendars, litigation hold databases,

depositions, and

other discovery materials

•Coordinating with HR to ensure

proper retention of data

from departing employees

Junior Paralegal

•Updating & maintaining Legal

Intranet Site and shared drives

•Managing editorial calendar and

publishing Legal’s periodic

newsletter

•Reviewing, editing, and approving

all product labeling, product

advertising, and promotional

materials to ensure compliance with

the corporate labeling guidelines

and proper trademark usage

•Serving as liaison to field and

business personnel to address

routine questions and redirect to or

identify other legal resources

required to respond to more non-

routine matters

•Implementing department

strategies and objectives by

working with internal stakeholders,

field and business

personnel


8

• An effective strategy and implementation plan

• Senior leadership support

• Employee compliance across multiple states and countries

• Resources!


9

How do you achieve consistent document clean up across multiple countries?

…in a highly regulated company?

…with conflicting Standard Operating Procedures?

…with three people?

…and employees who have their own day jobs?

…and an archaic document retention policy

…that even the lawyers don’t like to read?

…that is governed by a parent company’s document retention policy?

…with no budget to outsource the updating?



11

Litigation Holds Cleanup Retention &

Management

The process of assessing/improving policies and practices for:

• storing

• maintaining

• and retrieving data…

…to increase preparedness for litigation, reduce cost of compliance,

and reduce risk of sanctions for non-compliance


12

eReadiness Policy

Litigation Holds

Document Cleanup

Litigation Document Management and Production

Document

Retention Policy




15

1. Coordinate and schedule cleanup periods for each site

2. Limit Phase 1 to a few manageable but typical sites

3. Make document retention policy user friendly

4. Retain and destroy stored documents per document retention policy

5. Move all storage documents from environmentally insecure facilities

6. Establish baseline measures for offline and electronic cleanup

7. Establish a single waste removal vendor and offsite storage provider across

the US



17

VP RA/QA Global VP Global Sales &

Marketing

VP Finance, Global

VP Global Operations Senior Business Partner VP HR Global

VP Global Product

Management VP Strategy

Company President

Senior management support to roll out this strategy was critical to

cleanup success for pilot countries

Divisional GC


18

Site Lead

• Conducts site-level clean-up for

each function

• Certifies completion to Function Lead

Function Lead

• Function-specific input

into preparation documents

• Oversees function clean-up

• Certifies completion based on Site Lead

Site Coordinator

• Manages logistics

• Issues site communications

• Liaison with Site and Function leads

• Provides input into documents

Senior Leadership

• Supports eReadiness Strategy

• Identifies Function Leads

• Kept abreast of developments

• Encourages compliance as needed

The eReadiness project involves these assigned roles


19

Site Lead

Function Lead

Site Coordinator

Senior Leadership

Employee

• EVERYONE is an employee

• The employee’s role is the most critical to Smiths

Medical conducting effective document cleanup

• Employees must cleanup data according to

the Document Retention Policy and site SOP


20

Senior Leader

VP

Function Lead

Site Lead

Toronto

Site Lead

Fresno

Site Lead

Dayton

Site Lead

Chicago

Site Lead

Keene

Site Lead

Norwell

Site Lead

Southington

Site Lead

Keene

Site Lead

Olive Branch

Site Lead

Rockland

Site Lead

Buenos Aires

Site Lead

Vernon Hills

For each function, Site Leads at each location were required to verify and

certify completion of their local cleanup, and the Function Lead certified

completion for the entire function © Spiwe L.A. Pierce

21

Three employees in the Legal department now had…

105 Additional Members of the eReadiness

Team

…within every function

…at every target site


22

Site Cleanup Period Final Completion Date

Canada May 16th-27th May 27th

Clinicians May 9th-20th May 20th

Connecticut May 9th-20th May 20th

Illinois May 9th-20th May 20th

Indiana May 16th-27th May 27th

Massachusetts May 9th-20th May 20th

Minnesota April 1st-15th April 15th

Mississippi May 9th-20th May 20th

New Hampshire May 16th-27th May 27th

Ohio May 9th- 20th May 20th

Sales Force May 16th-27th May 27th

1-day cleanup is insufficient to accommodate meetings, travel etc. Give

your employees a sufficient window to complete cleanup


23

Engagement

• President communicated support &

encouraged compliance via Intranet

• Senior management led by example

• Function Leads encouraged

support & compliance

• Sites issued their own communications

Contribution

• VP’s identified Function Leads

• Function Leads identified Site Leads

• Site Coordinators picked Cleanup Periods

• At some sites, leadership did the training

Buy-in

• Senior management agreed

to support strategy

• President agreed to Jeans Day

on last day of cleanup



25

For Legal: Assess/improve policies and practices for

storing, maintaining and retrieving data to increase

eDiscovery readiness and reduce risk of sanctions

for non-compliance

Benefit For Your Business: Reduce risk of inadvertent

document destruction, reduce cost of document

retention, reduce cost of complying with discovery

requests


26

Proper document retention and destruction:

Saves storage space and money

Preserves company’s defenses against claims

Provides details when memories have faded and

witnesses have left the company

Demonstrates consistency and compliance with company

policies

Eliminates unnecessary expense of retrieving documents

that should have been destroyed

Significant penalties for non-compliance



28

1. eReadiness Intranet Site – for all employees

Cleanup Period Instructions

Cleanup Schedule

Contact Lists

Doc control SOP’s

Document Retention Policy

FAQ’s

Unlisted Document Form

2. SharePoint – for eReadiness Team Only

Certification Forms

Copy of Intranet Documents

Feedback

Site Level Communications

Talking Points


29

Timing Description

2 weeks before kickoff Email announcement to all employees

1 week before kickoff/

throughout

Postings on message boards/ common areas

1 week before kickoff/

throughout

Scrolling presentation in cafeteria (where available)

1 week before kickoff Email announcement to all employees

Kickoff day Email announcement to all employees

Kickoff day Kickoff cards and cookies outside cafeteria

Second Monday after kickoff Email reminder to complete cleanup this week

Thursday before Jeans Day

Email reminder to drop everything and complete

cleanup on Jeans Day

Give your local sites discretion to tailor the standard communications plan



31

1. How to cleanup (desk and common areas)

2. What to cleanup (in Outlook and offline)

3. Where employees should cleanup

4. How to delete items (computer and Outlook)

5. Tips for cleaning up

Instructions


32

• Agreements

• Case Files

• Day Planners

• Drafts, Final Versions

• FDA, QSR Manuals

• Field Notes

• Graphs, Charts, Spreadsheets

• Handwritten Notes, Work Papers

• Instant Messages

• Letters, Memos, Statements

• Meeting Minutes

• Notebooks

• Presentations, Books, Pamphlets,

Periodicals

• Project Documents

• Patent Applications

• Records and Reports

• Sales & Marketing Materials

• Voicemail Messages

• Videotapes, Audio Tapes

Document Retention Policy and Litigation Hold Memo on hand

throughout cleanup period


33

The more fun, the greater the participation, the higher the compliance

What is it The MANDATORY Period when EVERYONE

on site must review, retain and discard all data

according to Smiths Medical policy

When Check the previous slide for your site's

Cleanup Period

Jeans Day! Final Cleanup date. Cleanup must be completed.

What to Do Clean up all data during two-week Cleanup Period

Keep what you should

Toss what you should


34

• Hand out cookies and a reminder card the week before

cleanup period begins

• Have jeans day halfway through Cleanup Period to motivate

more cleanup activity

• Put popcorn machines around the campus on jeans day

• Give prizes to motivate desired behavior (e.g. dept with

highest participation, first dept to submit certifications, etc.)

• Link Cleanup Period with a relevant theme, e.g. Earth Day

• Communicate results in a fun way (e.g. “the biggest loser”)

• Personally recognize eReadiness team members who went

above and beyond



36

• 53,000 lbs of paper (~26 Tons) shredded, recycled, and

trashed

• 762,000 MB or nearly 744 Gigabytes of space freed

• Top Three Participating Sites in FY11

• Site 1: 49.46lb/person (14,000lb total)




37

• Rollout eReadiness program to more countries

in FY12

• Mandatory cleanup periods to occur across the

company annually

• The better we are at managing data coming in,

the easier annual cleanup will be

• Continuous Improvement: Feedback from

FY11 cleanup to help refine cleanup process

moving forward
