Philippe Senécal, Legal Counsel at Ledjit Consulting Inc.provides the attendees with an introduction to forensic methodologies, procedures and pitfalls as well as tools for locating and reviewing data, metadata, and antiquated formats. Given the details level of Phil’s presentation, we won’t blog about it and refer you to the Powerpoint directly:
Posts Tagged ‘E-Discovery’
The Latest Technological Solutions to Today’s Forensic Challenges
Thursday, February 25th, 2010The Effective eDocument Retention Program – Policies, Processes and Solutions
Monday, February 22nd, 2010Shaun Saldanha, eDiscovery Manager (Litigation Risk) at the TD Bank Financial Group, and Rob Gerbrandt, Senior Consultant with Ledjit Consulting Inc. looked at the development and implementation retention program.
[PRESENTATION TO BE ADDED SHORTLY]
Types of data:
Structured and Unstructured
Where a document resides is irrelevant: a document is a document is a document
Instant messages: some companies deals with them as ephemeral and transitory documents. At TD, they divided the documents in a regulatroy framework and equated instant messages and emails as one type of document.
The idea is to retain the right information, in the right location for the right amount of time
COSO framework
Key player is people: without people, the system falls apart. Employees need to be involved at all stages of the process to identify all the risks that need to be managed, from planning to implementation and auditing.
Key drivers:
- Regulatory needs (Banks, SEC, SOX, etc.)
- Industry
- Business needs
One can’t focus only on the applicable laws, but also and perhaps most importantly, on the needs of the organization, hence the necessity to involve employees at all levels.
Most attendees’ organisations do not have a direct channel and opened communication between IT and legal. They need to talk when handling urgent issues. It is important to develop a clear process with continuous dialog. However, the process will depend on the organization and its risks profile.
How often is legal involved in the planning of technology implementation? What about decommissioning systems?
Federated cost : IM benefits to the whole enterprise. No particular group, particularly the legal department which is already a cost center without a prefixed budget, wants to foot the bill… Furthermore, many lawyers feel that legal is now forced to pay the price of historic information mismanagement! “Wasn’t it the IT department taking care of information? – No, IT only cares about the “T”, i.e. technology; the “I”nformation belongs to the end-users…” So, one of the first questions that needs to be answered is who pays what and how? Retention might be an opportunity for green initiatives and vice versa.
Primary challenges of retention programs is:
- Lack of clear ownership
- “Why not keep everything? Storage is cheap”
- Not a “sexy” initiative
The best way to get buy-in is to start small by grabbing the low-hanging fruits and quickly show the ROI.
Zubulake RErevisited – Second thoughts about backup tapes?
Monday, February 8th, 2010As a follow-up to our previous post on Zubulake Revisited, judge Scheindlin amended her original order. Here is an overview of the main changes :
She replaced <While placing any burden at all on the innocent party to demonstrate the relevance of information that it can never review may seem unfair, the line has to be drawn somewhere lest litigation become a “gotcha” game rather than a full and fair opportunity to air the merits of a dispute.> with <If the spoliating party offers proof that there has been no prejudice, the innocent party, of course, may offer evidence to counter that proof. While requiring the innocent party to demonstrate the relevance of information that it can never review may seem unfair, the party seeking relief has some obligation to make a showing of relevance and eventually prejudice, lest litigation become a ”gotcha” game rather than a full and fair opportunity to air the merits of a dispute.>.
She added <I note that not every employee will require hands-on supervision from an attorney. However, attorney oversight of the process, including the ability to review, sample, or spot-check the collection efforts is important. The adequacy of each search must be evaluated on a case by case basis.>.
After <destroyed backup data potentially containing responsive documents of key players>, she added <that were not otherwise available>, thereby drawing the line between reasonably accessible and inaccessible documents based on the proportionality test. She then continued by adding a footnote stating:
A cautionary note with respect to backup tapes is warranted. I am not requiring that all backup tapes must be preserved. Rather, if such tapes are the sole source of relevant information (e.g., the active files of key players are no longer available), then such backup tapes should be segregated and preserved. When accessible data satisfies the requirement to search for and produce relevant information, there is no need to save or search backup tapes. See Fed. R. Civ. P. 26(b)(2)(B).
She further added <While routine searches of backup tapes are not required, they should be searched when it has been shown that relevant material existed but was not produced, or relevant material should have existed but was not produced. Because both conditions are met, Okabena is required to conduct this search or explain why it is unable to do so.>.
Interestingly, she replaced <Second, that 2M, Hunnicutt, Coronation, the Chagnon Plaintiffs, Bombardier Trusts, and the Bombardier Foundation were grossly negligent in their failure to preserve the evidence.> with <Second, that if relevant evidence was destroyed after the duty to preserve arose, the loss of such evidence would have been favorable to the Citco Defendants.> and added <This failure resulted from their gross negligence in performing their discovery obligations.>.
You should read all the Zubulake Revisited Amendment as this will likely be the last judgment in that case…
Hat Tip to WortzmanNickle.
Zubulake Revisited? Dissecting the Pension Committee vs Banc of America Opinion
Thursday, January 28th, 2010When: Wednesday, February 10, 2010 1 p.m EST
Where: Webinar
THE SEDONA CONFERENCE® “VOICES FROM THE DESERT” WEBINAR SERIES PRESENTS “ZUBULAKE REVISITED? DISSECTING THE PENSION COMMITTEE V. BANC OF AMERICA OPINION” – WEDNESDAY, FEBRUARY 10, 2010 AT 1:00 PM EASTERN
The first major judicial opinion on e-discovery for 2010 was delivered by a judge who was already a distinguished jurist in the field and it harkened back to a landmark decision from the past. The January 15 Amended Opinion and Order in Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al. was titled “Zubulake Revisited: Six Years Later [pdf]” by its author, Hon. Shira A. Scheindlin of the U.S. District Court for the Southern District of New York, who stated, “Once again, I have been compelled to closely review the discovery efforts of parties in a litigation, and once again have found that these efforts were flawed. As famously noted, ‘[t]hose who cannot remember the past are condemned to repeat it.’”
Pension Committee details the data preservation efforts of 13 plaintiff investors who joined an action to recover an alleged half-billion dollars in losses from the liquidation of two British Virgin Islands-based hedge funds. More to the point, the opinion details the lack of preservation efforts by the plaintiffs, finding that seven of the plaintiffs acted negligently and six of the plaintiffs acted with gross negligence, resulting in the probable loss or destruction of relevant data, and requiring further discovery, monetary sanctions, and a carefully-crafted spoliation instruction to the jury. In her lengthy opinion [pdf], Judge Scheindlin discusses the duty of preservation and what it requires of parties, distinguishes between the various levels of culpability in the plaintiffs’ conduct, explores the shifting burdens of proof in spoliation claims, and sets out the appropriate remedies for the failure to preserve electronically stored information in litigation.
In this webinar, our distinguished panel will take a careful look at the Pension Committee opinion and what it teaches all of us – plaintiffs, defendants, and the Judiciary – about the duty of preservation and the sanctions for spoliation. The panel will be moderated by Ken Withers (Director of Judicial Education and Content, The Sedona Conference®) and will include Hon. Elizabeth Laporte (United States Magistrate Judge in the Northern District of California) attorneys Jonathan Redgrave (Nixon Peabody LLP) and Jennifer Young (Milberg LLP), and veteran e-discovery technical expert John Jessen (Datacon/Electronic Evidence Discovery).
TO REGISTER and for more details, please go to our WGS Audio Update Series homepage. The registration fee for this program is only $99 for the general public and $79 for members of The Sedona Conference® Working Group Series.
Once registered, you will be able to listen to the discussion by telephone, view PowerPoint slides, download selected program materials, and ask questions during a question-and-comment period.
1.25 HOUR OF MCLE ACCREDITATION will be applied for in the following jurisdictions:
California
Georgia
Illinois
Indiana
Minnesota
Mississippi
Missouri
Nevada
Tennessee
Texas
Wisconsin
Each person who wants to receive MCLE credit must register and participate INDIVIDUALLY. Group or location registration will not be recognized for MCLE credit.
Follow this link for more information about the ruling
ou bien en français.
E-Discovery Shorty Award
Sunday, January 10th, 2010
The second annual Shorty Awards, honoring the “Best Producers of Short Real-Time Content” on Twitter, will be held in March 2010. This year sees the birth of “The Year’s Best Ediscovery on Twitter“. Ledjit woul dlove to win, for whatever it means… No matter who you vote for, vote here and make sure the organizers know e-discovery should be an official category!
With Liberty and E-Discovery for All
Wednesday, January 6th, 2010In his new article entitled “E-Discovery for Everybody: the EDna Challenge” [PDF], award-winning columnist and certified trial lawyer Craig Ball asks those of us in the e-discovery industry if we can shift our “gaze from the golden calf” to the other “85% of the potential market for desktop discovery tools”. Mr. Ball thinks we should, and offers the readers an informative survey of the tools, best practices, and practical advice to follow if one decides to head in that direction. Among his recommendations or those he cites from a good dozen experts in the field is the use of dtSearch, Aid4mail, Adobe Acrobat, Quick View, Trident Lite or Vound Software; he includes Microsoft Office Access and Outlook but cautions against the corruption of metadata when using them to review case files.
Experts who weighed in on the question gave a broad range of advice, from a suggestion by John Simek of Sensei Enterprises in Virginia to “budget an hour of a consultant’s time” for help developing a work plan; and Dominic Jaar of Ledjit Consulting, Inc.’s “doleful” though sage admonition “to stay far away” from cheap e-discovery solutions — better to spend one’s small budget on “coffee and malpractice coverage”; to Floridian forensic examiner David Kleiman’s humorously irreverent quote to budget for “alcohol and amphetamines” when faced with a small budget and the “toil ahead”.
A quick summary of Mr. Ball’s advice:
1. Make a working copy of the data (before processing).
2. Generate an inventory of all files and their metadata.
3. Divide the components of the collection into a logical scheme.
4. Expand files that hold messages and other files.
5. De-duplicate the files.
6. Don’t process and review Electronically Stored Information (ESI) in a vacuum.
Follow this link to read the full article [PDF]. Many thanks to Mr. Ball and to all who participated in the survey. Let’s see if the advice proves true for the underserved teeming masses and to invalidate the “mistaken belief that e-discovery is just for the country club set.”
Ontario E-Discovery Rules of Civil Procedure Now In Effect
Friday, January 1st, 2010
With the arrival of 2010, the new Rules of Civil Procedure came into effect in Ontario, as announced on the website of the Ministry of the Attorney General. Rules were substantially reformed in an effort to achieve Honourable Coulter A. Osborne’s goal to “make the civil justice system more accessible and affordable.” The reforms include changes to Summary Judgment, Mediation, Third Party Claim, Discovery, and dozens of other rules. Of particular interest to Ledjit readers, the changes related to discovery represent a positive step towards control over the time and expense associated with civil proceedings in this new era of e-discovery.
Here are some highlights as gleaned from the Ministry’s website and gathered from the recently published on-line version of the Rules of Civil Procedure: (more…)
The Value of E-Discovery Policies
Tuesday, August 18th, 2009The first line of defence and a great component of an corporation’s Governance, Risk and Compliance infrastructure is a solid set of policies, processes and protocols.
Think about the state of your policies ahead of time, update them and inform everyone about them. The outcome will always be better when you are asked to demonstrate to a court how you responded to the discovery demands!
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