Choose Your Own Adventure: Mastering Information Governance in the Workplace

Choice A or Choice B? Choice C or Choice D? There’s nothing quite like the mystery and thrill of the Choose Your Own Adventure (CYOA) novel, where the reader gets to direct and navigate the story of their choice.

Similarly, when it comes to Information Governance (IG) programs, corporate counsel and the IG team get to create their own old school CYOA storyline by defining the processes and implementation of the multi-disciplinary structures, policies and programs necessary to control and organize data. Kroll Ontrack’s Tom Barce recently wrote an article, Information Governance: Be Prepared for a Data Disaster, discussing the importance of IG programs and what corporations should be aware of in regards to what an IG program can do.

To showcase the advantages of IG programs, let’s consider the following scenario for Health Nuts (HN), a large (fictional) multi-national company in the nutritional supplements industry:

The company has hundreds of employees and millions of records containing private and personal data. Over the past decade, the company has grown rapidly through acquisition. HN recently expanded into Brazil, however, very little has been done to integrate the various data management policies and procedures from the newly acquired companies. Some divisions of HN are highly technical, with employees leveraging modern communication devices and forums, as well as using personal devices for work communications.

Do you:

Choice A: continue as is and allow various data management policies to continue

OR

Choice B: re-evaluate the complexities and dangers of rapid growth and insufficient data policies and consider incorporating an IG program

For inside counsel and IG teams, the above hypothetical should raise blaring issues of security, management and data protection. Unfortunately, with corporations now fully entrenched in the digital age, counsel are playing a catch-up game with how fast data is created and where the data goes, and many do not recognize the need for a robust IG program. When utilized properly, IG programs can control a corporation’s data and maximize its value, but only if the information at hand is under control. So what happens if the information is not under control and a corporation chooses Choice A? Let’s return to aforementioned Heath Nuts Corporation:

The nature of the organization’s data management and decentralized IT systems left it ripe for attack. Three months ago, the company suffered a data breach and is still trying to determine the scope of the attack across its divisions. Due to this, customers have experienced identity theft and fraud. Compounded with the fact that state and federal agencies are investigating the nature of the breach, a lawsuit is clearly imminent.

Do you:

Choice C: Await litigation

OR

Choice D: Go back to the initial set-up and implement an IG program

For Health Nuts and for most corporations, the above situation is not too far from the norm if corporations choose Choice A over Choice B. Fortunately, steps can be taken to mitigate this hair-raising data disaster by choosing Choice D and following these initial steps:

Be Aware of Your Data and Know How to Leverage People, Processes and Technology

Before making any decisions about a company’s data, counsel needs to understand what, and where, data is stored and what the current policies regarding data retention and destruction are. Counsel needs to be especially concerned with the nature, location, security and maintenance of personally identifiable information (PII) as well as “dark data,” or data that is created, processed, and stored in the regular course of business and is not currently in use. Once a corporation’s data is located and secured, the next step would be to leverage current employees in the IT and Information Security departments to ensure the appropriate emphasis is placed on training them and the organization-at-large about the policies and definitions of the IG program. In addition, data categorization, auto-classification, and predictive coding solutions may be utilized as part of your IG strategy to reduce costs while organizing data for future use. Furthermore, counsel must consider data that has been placed on legal hold and held in a legal hold repository. This data and the associated obligations are the burdensome, but necessary, exceptions to effective IG that can lead so many corporations to complacency.

De-Cluttering Company Data…

The success of IG programs depends on a number of factors, including the increased business utility of the data under management, storage savings, impact on ediscovery and company productivity. In today’s modern age, data tends to accumulate exponentially. To prevent the hoarding of extraneous data, corporations must learn to dispose of unnecessary information and learn to sift through the types of data that will have a great effect on protecting company, employee and consumer data while streamlining ediscovery responses by eliminating irrelevant documents. In addition, de-cluttering company data can increase the value and efficiency of an IG program, thus allowing for more effective analytics.

…But Keeping the Necessary Documentation

Through the process of streamlining the IG program, organizations must ensure that they effectively document their processes. This includes clarifying IG program goals, definitions, policies and procedures, as well as employee training, enforcement actions, audit practices and program evaluations. Corporations should document these processes in anticipation of dealing with legal or regulatory actions, as well as help in the overall evaluation of the IG program. Successful documentation can lead to increased visibility and better opportunities for corporations to address and fix problems.

If corporations wish to avoid a data disaster, the choice is clear. By utilizing an effective IG program to locate, secure, and document their information retention and destruction processes, corporations may avoid or, at a minimum, mitigate the risks and damages that result from data breaches and/or regulatory and litigation events.  For more information, check out Information Governance: Be Prepared for a Data Disaster today!

Schoolhouse Blues: Ediscovery Courses in Law Schools

With August comes languid heatwaves, leisurely days outdoors and (for many) the looming dread of heading back to school. For students everywhere – and perhaps especially law students­ – the start of a new semester brings new challenges, lessons and discoveries.

One thing that is slow to change though is the dearth of ediscovery courses in law schools around the nation. Kroll Ontrack’s previous analysis of law school websites showed that less than 40% of law schools offer a course in ediscovery. Of those schools, only a fraction offer courses with any practical ediscovery lawyering skills.

My Kroll Ontrack colleague, Michele Lange, recently partnered with noted ediscovery educator, William Hamilton, to publish an article, Law Schools Lag in Teaching Ediscovery, which delves into this deficit.

Both Hamilton and Lange found the limited access and resources for adjuncts qualified in the ediscovery field to be a likely cause for why there are so few courses in ediscovery. Indeed, many universities lack tenured professors that are comfortable and skilled in the constantly evolving ediscovery field, while the adjunct professors that do teach ediscovery lack the time and resources to properly educate and grade student coursework. To remedy this, Hamilton and Lange suggested two major changes that law schools should undertake to alleviate the course shortages.

Create a dynamic relationship between students and ediscovery professionals

The first step law schools need to take is to stress the mandatory need for a robust ediscovery module in their basic civil procedure course, as these courses are especially important for litigation-tracked students. By inviting ediscovery professionals from law firms, corporations, technology providers and the government, law schools can help foster an environment of communication and understanding about the importance of ediscovery and the career opportunities ediscovery presents to students. In addition, these partnerships have the potential to create cadres of adjuncts that will develop courses together, share instructional design responsibilities and alternate teaching both elementary and advanced courses. By laying down the groundwork for success, these partnerships between students and professionals will create a new breed of lawyers who are ready to tackle modern ediscovery litigation issues straight out of law school.

Promote the value of an ediscovery education

The laws of supply and demand in economics apply to ediscovery courses as well. This means that merely providing ediscovery coursework is not enough. For ediscovery courses to become a mainstay in law schools, students need to understand and embrace the value of an ediscovery education.

The hurdle that schools need to overcome is this misguided belief that an education in ediscovery is “too techie” or that it falls under the heading of “litigation support,” rather than “real lawyering.” In reality, an ediscovery education opens the door to a variety of career options. Firms and corporations need litigators who can rapidly assess risk and exposure and who possess real life skills to manage cases and control costs. Those who are knowledgeable about ediscovery and know how to cut costs by using different platforms will have an edge over other young lawyers who first explore the ediscovery field upon arrival at a firm. By offering ediscovery courses and enlightening students to the need for such courses, law schools will help train and provide students with valuable, real life skills that they can bring to the workplace.

The historical model that taught aspiring young lawyers that a law school’s purpose was to teach them how to “think like a lawyer” is no longer applicable today. For the next generation of lawyers to succeed, they must begin their education in ediscovery in the classroom, not in practice at a firm. For a more in-depth analysis, check out the article, Law Schools Lag in Teaching Ediscovery.

Q&A WITH ADAM STRAYER OF KROLL ONTRACK’S SECOND REQUEST TEAM

adam

A specialized field such as ediscovery in antitrust matters requires an equally specialized and expertly trained team. Here at Kroll Ontrack, we are fortunate enough to have some of the most seasoned and knowledgeable consultants, including professionals with direct work experience with antitrust agencies and private merger and acquisition practices. When you can’t second guess a second request, you need to know one of Kroll Ontrack’s very own antitrust experts, Adam Strayer.

QTell us about your background and what led you to becoming an ediscovery expert that focuses on antitrust matters.

A: Before working as an ediscovery consultant, I was an attorney at the Federal Trade Commission (FTC), where I reviewed proposed mergers and investigated anticompetitive conduct. While there, I drafted and negotiated a number of second requests and gained valuable insight into federal agency document requests.  That was a great foundation for what I am doing today—helping Kroll Ontrack’s clients develop strategies for responding to similar requests. I’ve also worked on the private practice side, defending companies in antitrust investigations and helping them respond to second requests and similarly large data requests in commercial litigation. After these roles, I moved into the ediscovery service provider world, where I worked on the managed review side—designing workflows, driving strategy timelines and responses, and meeting production deadline goals.

QWhat types of services do ediscovery consultants provide to law firms and corporations involved in a second request?

A: Kroll Ontrack leverages a proven, defensible process for handling second requests from inception through completion. This process involves dedicated team resources with specialized expertise to handle the sheer complexity and tight timeframes associated with second requests. The team provides 24/7 support for your case, including onsite project scoping, planning and kickoff and daily status calls and briefings. In addition, an ediscovery consultant is skilled at honing the technology platform specifically for the needs of a second request review – from setting up the workflow and category tree to leveraging predictive coding. Our goal is to provide efficient, accurate and defensible ediscovery for deadline-driven second requests.

QCan you give us an example of a recent second request that Kroll Ontrack helped with?

A: Kroll Ontrack works on dozens of antitrust matters each year. For example, in 2014 alone, Kroll Ontrack produced over 20 million pages of documents involved in second request matters. Furthermore, many of these antitrust matters involve global competition bureaus or merging companies outside of the United States. In one recent case, two device companies looking to merge were issued a second request by the FTC. Kroll Ontrack’s ediscovery.com platform, predictive coding technology and document reviewers aided the merging companies in completing the FTC production in less than two months, taking 2.5 terabytes of data down to about 500,000 documents.

QSince we’re getting to know your work, it would be great to get to know a little about you. What is your ideal day outside of the office?

A: I live in Brooklyn Heights, just across the Brooklyn Bridge from Manhattan, but I really like to escape from the city as often as possible. This summer, I have spent a lot of time hiking in upstate New York and in Michigan’s Upper Peninsula.

Thank you Adam for sitting down with us and giving us some great insight into the world of ediscovery consulting in antitrust matters.

 

August 2015 Ediscovery Case Summaries

Case Law Picture

Court Grants Sanctions In Light of Reckless Failure to Preserve
Kan-Di-Ki, LLC v. Suer, 2015 WL 4503210 (Del. Ch. July 22, 2015).

Failure to Prepare for Litigation Results in Adverse Inference Instructions
NuVasive, Inc. v. Madsen Med., Inc., 2015 WL 4479147 (S.D. Cal. July 22, 2015).

Court Grants Restraining Order in Light of Inadvertent Disclosure
Newark Unified Sch. Dist. v. Superior Court, 2015 WL 4594095 (Cal. Ct. App. July 31, 2015).

Failure to Specify Production Requests Leads to Indeterminate Ruling
Nykoriak v. City of Hamtramck, 2015 WL 4600234 (E.D. Mich. July 29, 2015).

Targeted Search Criteria for ESI Results in Granted Discovery Request
Stinson v. City of New York, 2015 WL 4610422 (S.D.N.Y. July 23, 2015).

Excavation, Evolution and EMEA Ediscovery: Spotlight on the UK and Germany

man hand shoveling the soil on garden,vintage filter

What do dinosaurs and data have in common? While it may seem like a strange comparison, excavating a fossilized Tyrannosaurus Rex may not be all that different from finding the most relevant information in terabytes of data. Just as paleontologists have adopted modern technology to locate and date fossils (or create terrifying hybrid dinosaurs such as those in the summer blockbuster Jurassic World), international ediscovery is experiencing its own technology revolution, with firms and companies adopting new techniques and technology to maximize accuracy and efficiency.

Through two recent surveys focusing on EMEA ediscovery, an in-house market study on ediscovery in Germany and a collaborative survey of 101 general counsel and in-house lawyers in the UK with Legal Week Intelligence, Kroll Ontrack unearthed just how firms and companies are handling ediscovery, litigation and regulatory data demands across the pond. Below you will find a summary of these reports, to tide you over until you get time to read both documents in their entirety.

International Ediscovery: Intriguing Themes

  • Regulations, Conflicting Roles, and Costs – UK survey respondents identified an increasingly regulated environment, straddling the need to be legal advisers and commercial advisers and controlling costs as the most pressing challenges facing legal departments today.
  • Internal and Local Tendencies – Two-thirds of the companies surveyed in the UK say they use their own technology and software solutions, although not many have sophisticated ediscovery solutions at their disposal. While companies in Germany generally outsource data processing to external providers, they prefer to use experts with roots in Germany.
  • Differences in Implementation – While nearly 60% of the German companies surveyed recognized the necessary nature of ediscovery, only 20% have response plans for ediscovery projects. In the UK, ediscovery has been around for more than 10 years in litigation and 53% of the surveyed companies are also now embracing sophisticated technology proactively to review their ESI for compliance and potential legal risks, although a third stated that they do not use technology for this process.

Ediscovery in the EU: Dramatic Differences

  • Predictive Coding – While the use of predictive coding has been warmly received in the US for quite some time, EU courts have not had occasion to sanction its usage. However, the Republic of Ireland High Court approved the use of machine learning technology in a case in March – the first time a court in the British Isles has done so. The ruling addresses major concerns regarding predictive coding and seeks to sway the skeptics.
  • No Formal Rules – In contrast to the formal discovery rules in the US and the UK, Germany has no formal legal requirement for ediscovery in civil litigation. That said, ediscovery technologies are nevertheless consistently being used in litigation which indicates just how useful using ediscovery technology can be in case building. With over half of the companies having experienced an ediscovery incident in the past year and a third predicting they will face an ediscovery incident in the next 12 months, being ready for ediscovery is becoming even more important.
  • Differing Demands – Internal investigations, regulatory investigations and litigation arising outside of Germany are the major drivers of ediscovery services in Germany whereas domestic litigation followed by internal investigations and international litigation dominate ediscovery projects in the UK.

What Lies Ahead for EMEA Ediscovery?

  • Specialization – Given the growth of ediscovery practices and professionals in the US, experts expect a similar trend to take hold in the UK, Germany and the rest of EMEA, with ediscovery becoming a legal specialism in its own right.
  • Education –While individuals in Germany are highly aware of the relevance of ediscovery in legal proceedings, there is still a need for greater education regarding the ins and outs of ediscovery. In the UK, there is scope for corporate counsel to learn more about ediscovery, given their dependence on law firms to guide them. The cost benefits of unbundling legal services and relying on experts for ediscovery is becoming very apparent especially in relation to document review.

Before the summer ends, read these two new reports to advance your knowledge of ediscovery practices in Europe.

APAC Ediscovery

Yen Puzzle

Last week I had the pleasure of speaking at an Association of Corporate Counsel event in New York. The day-long CLE was dedicated to helping U.S. in-house counsel address international and cross-border litigation issues. Because of Kroll Ontrack’s worldwide network, I am fortunate to regularly collaborate on both matters and educational opportunities with colleagues in the UK, Europe and Asia. For this particular conference, my colleague from the UK and I devoted our session to ethical challenges posed by global ediscovery matters.

Because ediscovery is approached differently in almost every country around the world and international ediscovery best practices are evolving quickly, ethical issues abound. Knowing the country’s approach to ediscovery is integral to ensuring that a multi-national ediscovery project goes smoothly.

Nowhere is there a more diverse set of global ediscovery requirements than in Asia, where ediscovery legislation and best practices are evolving at varying speeds. A worldly ediscovery professional must learn to navigate the legal paradigms and legal technology issues in Asia. Kate Chan, one of my Kroll Ontrack colleagues in Asia, recently wrote an article entitled, “A Guide to Ediscovery in Asia”, to help with just that goal. In her article, she enumerates common APAC ediscovery issues, as well as ways counsel can address international differences in their cases.  Below are just a few of Kate’s tips from her article.

APAC Ediscovery: Common Challenges

  1. Privacy and Confidentiality – These two issues pose the biggest challenges for APAC ediscovery projects, as many professionals have indicated concern regarding the new laws forming in the APC regions around data privacy.
  1. Cost Control – Many APAC companies are uncertain of how much they need to spend on discovery and feel that discovery creates an unnecessary burden.
  1. Multi-National Matters – It’s not uncommon in the APAC region for a single legal matter to have data collection and preservation efforts cross multiple national borders, thus complicating international ediscovery procedures.

APAC Ediscovery: Tactics for Success

  1. Start preservation early to ensure there is enough time to address language and cultural disconnects.
  2. Capture full forensic images and watch for international data nuances.
  3. Expect encrypted data more frequently in APAC ediscovery projects, and don’t discount the role that discovery of paper documents will play.
  4. Build relationships with local counsel and service providers that have deep experiences in Asia.

If you are likely to work on an ediscovery matter with ties to Asia, don’t miss Kate’s entire article, “A Guide to Ediscovery in Asia”. With distinct political, cultural and legislative sensitivities towards ediscovery in China, Japan, Singapore and other countries in the APAC region, you can’t afford not being up to speed.

July 2015 Ediscovery Case Summaries

Case Law Picture

Bad Faith Needed for Court to Rule in Favor of Spoliation Sanctions
Charvat v. Valente
2015 WL 4037776 (N.D. Ill. July 1, 2015).

Court Orders Defendant to Reveal Imprecise “Self-Collection” Methodology
Burd v. Ford Motors, Co.,
2015 WL 413915 (S.D. W. Va. July 8, 2015).

Court Follows Cost Shifting Analysis for Backup Tape Production
United States ex rel. Carter v. Bridgepoint Educ., Inc.,
305 F.R.D. 225 (S.D. Cal. 2015).

Court Conflicted Over Rule 26 in Light of Complex ESI Retrieval
ACI Worldwide Corp. v. Mastercard Tech., LLC.,
 2015 WL 4249760 (D. Neb. July 13, 2015).

Court Takes Middle Ground in Balancing ESI Production Costs
F & J Samame, Inc. v. Arco Iris Ice Cream,
2015 WL 4068575 (W.D. Tex. July 2, 2015).

Information Governance: Points from the Professionals

180152187-495x290

Information governance (IG) is becoming more and more critical to any organization’s success in controlling the sheer mass of data generated in the ordinary course of business.  However, determining the best ways to get information under control has many organizations at a standstill, with too many organizations only enacting IG practices after disaster strikes.

To highlight the importance of developing effective IG programs, the Information Governance Initiative (IGI) interviewed a number of IG practitioners in differing industries and recently published two reports.  Stories in Information Governance: The IGI 2015 Benchmarking Report and the accompanying document, Information Governance: Tips from the Trenches, compile valuable expert insight and practitioner tips to help any organization evaluate and cultivate an IG program. Across both resources, a couple central themes emerged:

Secure Support for Information Governance

Selling a program meant to protect against a vague, future threat is undoubtedly a challenge, but securing executive support and funding is essential for success. Using mock scenarios to test your program’s strengths and weaknesses, calculating the costs of inaction and consulting an outside expert can help win over a tough crowd and jumpstart an IG program or revive an old one.

Integrate Information Governance into the Entire Organization, not just a Single Department

By coordinating IG throughout the whole organization, end users will learn to think of information as belonging to the organization as whole, not just one department’s problem. For example, creating a senior IG role and developing an IG council of interdepartmental players can optimize the effectiveness of a program.  Further, exploring technology options that can automate as many processes as possible and eliminate end-user variability can make for a streamlined, cost-effective integration of IG policies and procedures into your organization.

Look for Smart Solutions to Challenging Information Governance Problems

Encountering roadblocks while starting and running an IG program is par for the course; don’t shy away from creative solutions. Proactive and creative planning gives you the chance to highlight the value of a strong IG program and garner support from key stakeholders. For example, leveraging versatile technology used to address one problem for other purposes can help stretch a limited budget. Rather than fixating on short-term hang ups, utilizing resources and finding a balance between completing current projects and achieving long-term goals will create a strong IG core at the heart of every project.

Make sure you take time to read these two valuable resources from IGI today: Stories in Information Governance: The IGI 2015 Benchmarking Report and Information Governance: Tips from the Trenches.

May Webinar UPDATE: Ediscovery Privilege

Summer time

As the temperature soars outside, stay cool with Kroll Ontrack as we delve once again into the depths of ediscovery privilege protection this July.

Corporate Counsel Article: Ediscovery Privilege Protection

As you may remember, Kroll Ontrack presented a webinar in May discussing methods of Protecting Privileged Materials in Ediscovery. Building upon what was discussed in that webinar, Kroll Ontrack’s  latest article, Mastering Privilege Protection During Ediscovery,  delves further into what it takes to maintain ediscovery privilege protection in this modern age. Authors included:

Jeff Schomig | WilmerHale | Attorney

Sheldon Noel | Kroll Ontrack | Account Executive

Topics in the Corporate Counsel article contained a deeper analysis of the topics discussed in the May webinar, including:

Embracing Predictive Coding for Ediscovery Privilege Review

To guarantee that predictive coding is employed, ensure that the technology is trained to recognize the characteristics of privileged or non-privileged documents to reduce the document volume for review while ensuring at the same that that the now smaller document set is fit for an efficient human review.

Integration of Privilege in Case Strategies

Early preparation is key to successfully ensure that privilege review tactics are integrated into case strategy. To ensure this, first reasonably ascertain all the necessary facts in your organization that relate to privilege and internal investigations prior to the review process. Understanding the legal communication flow and key litigation matters will help make the discovery process easier and more efficient in the long run.

Secondly, when dealing with large cases, the cost of organizing and producing a large privilege log must be considered. To mitigate these costs, some courts have permitted parties to forego individually logging documents and instead asserting claims categorically.

Considering Claw Backs to Remedy Inadvertent Disclosure

While the ultimate goal in ediscovery privilege protection is to avoid inadvertent disclosure, mistakes happen and privileged material may be disclosed to opposing parties. Understanding and properly utilizing FRCP Rule 502 to rectify the error can be a way to regain the improperly disclosed materials. However, Rule 502 is not guaranteed to reinstated privileged protection for disclosed material, so counsel should not rely on the rule as the all-purpose solution. In addition, the Rule 502 claw back can be written into an agreement between parties prior to production. This agreement can therefore be further enhanced through Rule 502(d) if the court enters the parties’ agreement as an order. Another alternative for counsels would be carefully document the review process and ensure that the personnel running the process are qualified to prevent improper disclosures.

For more information, be sure to check out our May article on Kroll Ontrack’s webinar, Power Up Your Privilege Review: Protecting Privileged Materials in Discovery.

June 2015 Ediscovery Case Summaries

Case Law Picture

Failure to Comply After Meet and Confer Results in Expensive Costs for Reproduction
Themis Bar Review, LLC v. Kaplan, Inc.,
WL 3397877 (S.D. Cal. May 26, 2015).

Court Finds Marginal Relevance Not Enough to Compel Continued Discovery
Miller v. York Risk Servs. Grp.,
2015 WL 3490031 (D. Ariz. June 3, 2015).

Court Affirms that Discovery Standard is Reasonableness, Not Perfection
Malone v. Kantner Ingredients, Inc.,
2015 WL 1470334 (D. Neb. Mar. 31, 2015).

Court Finds Good Faith Submission of Costs in Accordance with Rule 54      
Fitbug Ltd. v. Fitbit, Inc.,
2015 WL 2251257 (N.D. Cal. May 13, 2015).

Court Orders Cost Sharing in ESI Conversion
Hanwha Azdel, Inc. v. C&D Zodiac, Inc.,
2015 WL 1417058 (W.D. Va. Mar. 27, 2015).

 
css.php