Records & Information Management Best Practices for the 21st Century

Transcription

1 ATL ARMA RIM 101/201 Spring Seminar Records & Information Management Best Practices for the 21st Century May 6, 2015

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6 Corporate Counsel Opposing Counsel Information Request Silver Bullet Litigation Breach of Contract Product Liability Wrongful Termination Information Request Smoking Gun RECORDS AND INFORMATION

7 The act or process of finding or learning something that was previously unknown. - Black s Law Dictionary Exchange of information before trial Interrogatories, Documents, Depositions A party s discovery responsibility is to produce the material that is responsive to an opponent s request.

8 An affirmative act by an organization to prevent the destruction of documents relevant to a lawsuit or governmental investigation Includes physical and electronic All normal disposition ENDS

9 The intentional destruction, mutilation, alteration or concealment of evidence, usually a document. - Black s Law Dictionary Willful or negligent Can result in sanctions by the court both monetary and adverse instructions.

10 Not all evidence is sexy

11 Reliability Full and accurate representation Authenticity Proven to be what it claims to be and created or sent when purported to have been Captured in the normal course of business Integrity Complete and unaltered Usability Can be located, retrieved, presented and interpreted To be accepted into evidence, the courts will require a document or other ESI to be trustworthy

12 Put into place a system of repeatable, defensible policies, procedures and processes prior to litigation. Arm attorneys with the realities of the program, allowing attorneys to conduct productive Meet and Confer sessions that limit the impact of discovery production by not leaving policies and procedures open to interpretation or misunderstanding.

13 Litigation Trend Question IG Depositions A witness s out-of-court testimony that is reduced to writing (usually by a court reporter) for later use in court or for discovery purposes. - Black s Law Dictionary You can and will be called to testify on behalf of your records and information management policies, procedures and practices.

14 Be honest you are under oath. Keep answers concise, short and sweet. You are being gauged as a witness. Must be consistent with all previous testimony. Pause to allow time for your attorney to object. Think about the question before answering. Do you know the color of the sky? SILENCE IS POWER

15 Trend: Plaintiff s will continue to lose cases &/or be sanctioned for ESI spoliation and ediscovery wrongdoing

16 Court Imposes Death Penalty Order for Discovery Violations, Rejects Reliance on Retention Policy - Crews v. Avco Corp., No I, 2015 WL (Wash. Ct. App. Apr. 6, 2015)

17 [A] a party is not required to preserve all its documents but rather only documents that the party knew or should have known were, or could be, relevant to the parties dispute. Blue Sky Travel & Tours, LLC v. Al Tayyar, Fed. Appx., 2014 WL (4th Cir. Mar. 31, 2015)

18 You Needn t Keep Everything Forever: No Sanctions for Non-Party s Failure to Produce because of Retention Policies, Technology Changes United Corp. v. Tutu Park Ltd., No. ST-2001-CV-361, 2015 WL (V.I. Jan. 28, 2015)

19 Technology Assisted Review Magistrate Judge Andrew Peck s most recent opinion declares that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it. Open issues surrounding the use of TAR still exist: how transparent and cooperative the parties need to be with respect to the seed or training set(s). - Rio Tinto PLC v. Vale S.A., F.R.D., 2015 WL (S.D.N.Y. Mar. 2, 2015)

20 When the Amendments to the Federal Rules of Civil Procedure took effect in December, 2006, information governance was born. Not that the need for information governance didn t already exist, but the FRCP amendments just brought the spotlight to the need.

21 Rule 26(a) initial disclosure must include a copy of, or description by category and location of relevant ESI Rule 26(b) - scheduling order must include "provisions for disclosure or discovery of electronically stored information." Rule 26(f) - Meet and Confer now requires that the parties "discuss any issues relating to preserving discoverable information and to develop a proposed discovery plan. The Bottom Line: Parties must define and share their ediscovery plans within the first 99 days of the case!

22 Rule 26(b)(2) - Two-tiered" approach to electronic data Parties are expected to bear their own costs of exchanging reasonably accessible data. Identify sources of potentially responsive material that is not reasonably accessible because of undue burden or cost. Could include backup tapes or legacy data. The Bottom Line: Parties must pay for discovery costs or argue they are overly burdensome to discover and produce.

23 Rule 34(b) - amended to determine how ESI should be produced. The requesting party, NOT the responding party, requests "the form or forms in which electronically stored information is to be produced." Rule 34(b)(ii) - if the request does not detail the form(s) of production, the responding party must produce it "in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable." The Bottom Line: - No flooding opposition with large volumes of ESI or other formats

24 Rule 37(f) Safe Harbor Provisions: This section of Rule 37 provides that absent exceptional circumstances, a court may not impose sanctions, under the rules, on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system. Bottom Line: defensible disposition!

25 Changes to FRCP approved on 4/30/2015 by Supreme Court Sent to Congress for approval The proposed amendments focus on three issues: early case management, proportionality, and preservation.

26 Rule 1 These rules govern the procedure in all civil actions They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. The Bottom Line: Ensures that both courts and parties are now explicitly responsible for just, speedy and inexpensive litigation. This means there is no room for hiding the ball or burying your opponent in documents.

27 Rule 26 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party s claim or defense and proportional to the needs of the case. 26(b)(2)(1) now lists specific proportionality factors, including: The importance of the issues at stake The amount in controversy Access to relevant information Resources The importance of discovery in resolving the conflict Burden versus benefit The Bottom Line: All of these factors encourage opposing counsel to be reasonable, proportional, and willing to cooperate.

28 37(e) Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, goodfaith operation of an electronic information system.

29 Sanctions or adverse-inference jury instructions were available only when a failure to preserve caused substantial prejudice in the litigation and was the result of willful or bad faith conduct or irreparably deprived a party of a meaningful ability to present or defend against claims in the litigation. Judges felt they were losing too much discretion

30 37(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information s use in the litigation

31 More efficient and capable enforcement of policies Rapid and reliable ediscovery searches Reduction of amount of data under management Enhanced information governance posture added program support

32 Decreased operations costs Optimized storage and backup costs Decreased legal cost Less data to review for relevance Less data to produce Could create profit center Competitive advantage Operational efficiencies

33 Tera N Ladner, JD, CRM tera.ladner@suntrust.com