2014 Michigan E-Records Forum

The Records Manager’s Role In E-Discovery

Pari J. Swift Senior Records Manager

Ohio Attorney General’s Office

Overview of E-Discovery

Discovery & E-Discovery

Discovery Pre-trial practice of obtaining facts and information about a case to assist the parties’ preparation for trail Parties must disclose categories of all documents and data compilations

that are relevant

E-Discovery Requesting and acquiring digitally based documents during pre-trial discovery Non-transitory ESI is sought, located, secured, searched, produced,

reviewed, and analyzed for use

Source: © AIIM 2010, www.aiim.org

What is ESI?

Word processing documents Spreadsheets Database records Webpages (and Internet search history) Emails Texts Instant messages Surveillance tapes Social Media Metadata And the list goes on…

And where is ESI found?

Litigation (Legal) Hold

Begins when a lawsuit can be reasonably anticipated Notify potential custodians, RIM, IT, Legal

Requires preservation of all evidence that is relevant and accessible More difficult since ESI continually modified & deleted

Simply opening a document can alter metadata Printing is not sufficient – metadata will be lost

Must take immediate and affirmative steps to preserve data from routine/automatic deletion Altering normal document retention/destruction Altering backup practices

Suspend hard-drive scrubbing for separated employees

Failure to comply can result in spoliation charges

Spoliation

Destruction, alteration, mutilation of ESI and paper evidence Be careful of active documents being altered or overwritten

regularly Take steps to preserve it as exists at time of hold

Courts have held litigants accountable for failing to place

holds on document destruction routines

Destruction processes are the biggest, easiest issue for opposing counsel to hone in on

Types of Sanctions

Monetary In 2011, 68% of sanctions were monetary

Adverse Inference & Evidence Preclusion 25% of cases Bad faith loss or destruction of a document Gross negligence for failure to preserve Mere proof of negligence

Case-Terminating (Default Judgment/Dismissal) 21% of cases Repeatedly failing to produce relevant documents Ignoring court orders Obstructing discovery process

The Human Element

LDM Global study showed that errors in e-Discovery are more about people and less about automation (process)

Failure to effectively communicate across teams (50%)

Inadequate Data Retention Policies (47%)

Not Collecting all Pertinent Data (41%)

Badly Thought Out or Badly Implemented Policy (40%)

Role of Records management: Pre-Litigation (how you can help!)

Broad Role of RIM & IT

Arm attorneys with the information that they need for a productive Meet and Confer in order to limit the impact of

discovery production on the agency by presenting the realities of your agency’s policies, processes and systems rather than leaving it open for interpretation and possible

misunderstanding.

Goal – Litigate on the facts of the case instead of on retention/disposition policies & procedures, litigation

hold, collection and other processes.

Litigation Support Team

Consider requesting a single point of contact within your IT department for e-discovery issues

It might be helpful to draw out a high level process flow map to keep everyone on the same page

Ensure the business units understand this is not exclusively an “IT thing,” a “RM issue” or a “legal problem” – it is an agency concern.

Communicate the need to drive these processes throughout the organization—perhaps RM?

Seek consensus and buy in from all parties prior to the next “big event”

Pre-Litigation: Policies and Processes

Policies and processes must:

Be in place prior to litigation

Be communicated to all affected

Be implemented in a consistent, repeatable manner

Be defensible

Be ready at the Meet and Confer

Mitigating Risk of Spoliation

Litigation Hold Policy Records Management Policy Records Retention Schedules Proof of regular, consistent

implementation Disposal forms Audit trails Data Map Evidence Preservation & Collection

Policy

RIM

IT

LEGAL

Records Management Policy

Detailed Retention Schedules All records scheduled Media retention up-to-date? Record series descriptions Accurate retention periods Business and legal need, but no longer

Records Inventory Department and physical location of records

Records Management Policy

Legal Hold Process Agency wide, uniform Training All staff Include incoming staff Audit – periodic testing for compliance Don’t just have a records management policy, follow it!

Ohio AGO Policies, Procedures, & Guidelines (sample)

Records Management Policy Retention Schedules Disposal Form Convenience/Reference Copy Guidelines Employee Separation Procedures Gather ESI from former employees

Records Coordinator Handbook Litigation Hold Memo Public Records Policy Computer Use Policy Telephone Policy Blackberry Policy Text & IM Policy Technology Policy Use of State Owned Property Policy

Avoiding Sanctions (“Safe Harbor”)

FRCP Rule 37(e)

When ESI is lost or overwritten and unrecoverable as a “result of the routine, good-faith operation of an electronic information system.” Must be legally defensible Demonstrate (prove) that is was a matter of routine business

process rather than a more nefarious action Establish repeatable processes/patterns for the disposition of records in

accordance with proper retention schedules.

Why Can’t we Just Keep Everything?

Loss of “Safe Harbor”

Increased e-discovery Burden Complexity Cost (identification, collection, continued storage)

May uncover ESI that could be used against organization in litigation There is a line between business value and over preservation

But we can’t randomly pick and choose what to keep either

Not a defensible retention policy

Records retention and destruction policies must be implemented under neutral conditions and consistently to demonstrate good faith and avoid hints of obstruction

Must monitor compliance to create a record of good faith Document disposals

RIM’s Role in Identification Phase Need to have a plan to identify potentially relevant records and custodians

File plan/ data map Organizing by record series Organizing by function instead of person

Creating the Data Map

Data map: a listing of organization’s ESI by

Category Location Custodian or steward How it is stored Its accessibility Associated retention policies and procedures

Role of Records Management: During Litigation

Work with Legal Counsel

Before the Meet & Confer (FRCP Rule 26(f)), legal counsel needs to know: Where relevant ESI is stored What are the physical and technological limitations of IT What data has been destroyed either by scheduled disposition

or by mistake Retention schedules to assist in identifying potentially relevant

information Inaccessible information Where is the chain of custody for the relevant ESI Where is the audit trail

An Example…

Before your next event, call a meeting to bring together records managers, legal teams, and the IT teams involved in e-discovery actions

Ask IT to explain “how things work” – at a high level – and convey a sense of their level of effort

Get an understanding of what is possible or not possible Then, we can avoid asking for “miracles”

Be sure everyone understands the scope of IT and the distributed nature of most organizations

Consistency Counts!

Repeatable Process:

Communication with attorney Notification Tracking compliance Gathering Reviewing Producing

Interrogatories, Affidavits, Depositions and Testimony

Records Officer and IT staff may have to answer questions as to:

Records Policies and Procedures Retention schedules Disposition practices Email Policy and Procedures What you did to locate, preserve and protect relevant

records Who you talked to and when How you documented process

Records & Information Management Benefits E-discovery

Benefits of Records Management

Faster, more reliable E-Discovery searches for potentially relevant information due to: Regular disposition Less ESI to manage

Decreased review and production costs

Reduction in volume of ESI being retained means reduced storage costs

Conclusion

Engage Legal, RIM, and IT as a Working Group

Having policies and procedures for records management and e-discovery is key to: Refining discovery requests Demonstrating “reasonableness” in scope Cost-effective compliance Avoiding sanctions

But only if we can prove that we’ve made a good faith effort to comply with those policies and procedures on a regular basis.

2014 Michigan E-Records Forum

Pari Swift Senior Records Manager

Ohio Attorney General’s Office Pari.swift@ohioattorneygeneral.gov

614-466-1356

Thank You!