There is a small window of opportunity to

“There is a small window of opportunity to leverage the Meet & Confer to your advantage. ” Knowledge is Power: Leveraging the “Meet and Confer” to your Advantage Jeff Fehrman, Vice President of Forensics and Consulting, Integreon Bennett B. Borden, Partner, Chair E-Discovery and Information Governance Practice Group, Williams Mullen

Introductions: Williams Mullen Bennett B. Borden Partner Williams Mullen § More than 18 years experience in Electronic Discovery and Information Law , Bennett serves as Chair of the firm’s e. Discovery and information Governance Section § He previously served as a chair of the Electronic Data Discovery Initiative and as a member of the steering committee for the Electronic Discovery and Information Law Practice Group § His professional affiliations include the American Bar Association, District of Columbia Bar, The Sedona Conference, Legal Working Group of the Cloud Standards Customer Council, and is also Vice Chair of the Electronic Discovery and Digital Evidence Committee of the Science and Technology Law Section of the ABA 2011 | Copyright © 2011 Integreon 2

Introductions: Integreon Jeff Fehrman Vice President of Forensics and Consulting Integreon § More than 14 years in the electronic evidence and information technology space, specializing in providing consulting and investigative services to law firms, corporations and government clients § Subject matter expert on electronic evidence, who frequently speaks on topics such as e-discovery innovations and ediscovery obstacles facing corporations and law firms § Developed accredited courses approved by the Continuing Legal Education (CLE) boards in the States of Illinois, Georgia, New York, Pennsylvania and Virginia § Trained hundreds of attorneys in the technical aspects of computer forensics and electronic discovery 2011 | Copyright © 2011 Integreon 3

Agenda Overview Early Case Assessment “ECA” Leveraging the Meeting Strategic Advantage Empowered Discovery 2011 | Copyright © 2011 Integreon 4

Overview § Understand the obligations imposed by the FRCP § Benefit from an Early Case Assessment approach § Negotiate to your advantage by narrowing scope and defining responsive data stores § Enhance your ability to identify crucial information about ESI formats and locations § Grasp the finer points of the different forms of production and their impact on costs and post discovery research Litigators are expected to come to the meet and confer meeting ready, willing, and able to discuss all forms and groups of ESI and negotiate the production of data based on time considerations, risks and costs. 2011 | Copyright © 2011 Integreon 5

Overview Obligations of FRCP § Rule 16(b) • Amended to add to the scheduling order provisions for disclosure or discovery of ESI within 120 days of the lawsuit. § Rule 26(a)(1)(B) • Requires ESI to be on the list of items included in a party’s initial disclosures. § Rule 26(f) • Adds the requirement to meet and confer about the preservation, disclosure and discovery of ESI into the existing timetable, which requires the parties to confer “… as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due…” § Form 35 • Used by the parties to report on various issues to facilitate case management and scheduling, will be amended to require inclusion of the earlier meet and confer discussions relative to ESI discovery issues. 2011 | Copyright © 2011 Integreon 6

“ECA” Defined § Evangelical Christian Academy, a school for missionary children in Madrid § Entertainment Consumers Association, an entity representing American video game consumers § European Cockpit Association, the representative body of 38 national flight crew associations in Europe An Early Case Assessment (ECA) is a case management approach designed to assemble, within 60 days, enough of the facts, law, and other information relevant to the dispute to evaluate the matter, to develop a litigation strategy and to formulate a settlement plan if appropriate 2011 | Copyright © 2011 Integreon 7

Early Case Assessment - Strategy § Successful outcomes – attorneys responded that, on average, performing early case assessment results in a favorable outcome in 76% of cases § Strategic planning – 87% of respondents said case assessment is beneficial for determining the best way to proceed with a case § Reducing expenses – conducting early case assessment enables attorneys to reduce the litigation expenses in 50% of their cases on average § Managing budgets – More than half of attorneys surveyed (57%) find early case assessment assists in their ability to prepare a more accurate litigation budget § ECA Skills – 66% of attorneys said they could enhance their early case assessment skills 2011 | Copyright © 2011 Integreon 8

Early Case Assessment - Compliance Rule 26 Shows the Way § Identify, interview, track potential custodians (a)(1)(A)(i) “the name … of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses…” § Work with IT to create Data Maps (a)(1)(A)(ii) “a copy of, or description by category and location of, all documents, electronically stored information…” § Understand Retention Policies and backup systems (b)(2)(B) “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. ” Knowledge isn’t just “power”, it’s your responsibility 2011 | Copyright © 2011 Integreon 9

Early Case Assessment - Execution Pin down the trigger § Begin preservation even if no notice of litigation has been served § Document the triggering event • Date • Time • Reason When a party has reason to believe information is “relevant to litigation or when a party should have known that the evidence may be relevant to future litigation. ” Zubulake IV, 220 F. R. D 212, 216 2011 | Copyright © 2011 Integreon 10

Early Case Assessment - Wisdom Recognize potential issues for ESI and the preservation/collection process § Are you collecting all the data that you are § § supposed to be collecting? Are there any requirements foreign language expertise? Are there any data quality issues? Will there be any production problems? Are there privacy / cross border issues to consider? any action that will result in the destruction of hard drives is premature because there has been insufficient discovery to enable the parties and the Court “to knowledgeably craft a plan for preservation and production. ” Pippins v. KPMG LLP, No. 11 Civ. 0377 (CM)/(JLC), 2011 WL 4701849 (S. D. N. Y. Oct. 7, 2011) 2011 | Copyright © 2011 Integreon 11

Early Case Assessment – Actionable Intelligence 2011 | Copyright © 2011 Integreon 12

Leveraging the Meeting Seize tactical advantage § Negotiate targeted scope and define responsive data stores early • Agree to analyze a very limited group of potential custodians • Be clear on triggering event date § Address irretrievability issues § Don’t agree to search terms early or at all § Grasp the finer points of different forms of production and impact on costs and postdiscovery research § Don’t hesitate to bring an e-discovery consultant “[t]his topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence. ” U. S. v. Michael John O'Keefe, 537 F. Supp. 2 d 14 (2008) 2011 | Copyright © 2011 Integreon 13

Strategic Advantage “Knowledge is Power” § Know ESI’s native state and choose your arguments, early to avoid being reactive § The court may look more favorably upon your arguments if you have the an ability to discuss electronic data § Be more prepared than opposing counsel to show the court a more cooperative, can-do attitude § Save time and costs by knowing the impact on the event trigger on your data. Example: avoid expensive collection and production tasks by negotiating a collection date after an IT event such as migration to a new email or accounting system 2011 | Copyright © 2011 Integreon 14

Empowered Discovery – Quantitative Approach § Amass metrics – Learn from previous matters and be ready with preservation/collection averages and results § Plan strategically – Make sure your responses to opposing counsel are in line with your organizations position on information management § Process – Design, manage and audit the process. Don’t let it blind-side your team § Manage budgets – Appoint a project manager to estimate, model and track all expenses using on-going metrics collection § Reduce expenses – Defensibly reduce data: target, cull, document; target, cull, document etc. 2011 | Copyright © 2011 Integreon 15

The Electronic Discovery Reference Model (EDRM) www. edrm. net Processing Preservation Information Management Identification Review Production Presentation Collection Analysis VOLUME Information Mgmt: Identification: Define and enforce Determine the retention policy scope, breadth and depth of ESI RELEVANCE Preservation: Ensure ESI is protected against destruction Processing: Convert ESI to form suitable for review and analysis Collection: Gather ESI from various sources Production: Deliver ESI in appropriate format (e. g. , redacted, in TIFF, etc. ) Presentation: Display ESI at depositions, hearings, trial, etc. Analysis: Evaluate ESI for key topics, people, discussions, etc. Review: Conduct review for privilege and relevance 2011 | Copyright © 2011 Integreon 16

Empowered Discovery – Required Planning Litigation Readiness • Compile data maps, backup tape logs, org charts • Establish “ownership” of data for each department, database, file server, PC • Implement litigation hold method • Create kits and deposition training to respond to mandatory disclosures, written requests, preservation notices and 30(b)(6) • Draft preservation / collection procedures • Pre-hire outside resources Audit litigation hold program periodically • Run mock litigation holds and validate the results • Analyze test collections for completeness and volume averages – GB per custodian, etc. 2011 | Copyright © 2011 Integreon 17

Empowered Discovery – Tactical Execution Preservation § Get out notices and get back § § § acknowledgments Ask clients to preserve, not yet collect Implement suspension of backup tape rotation and other SOPs Make litigation-specific backups Track and remind. Avoid the tech-only preservation plan Audit to make sure the preservation plan is being fulfilled “[A] party needs to act affirmatively to prevent the system from destroying or altering information, even if such destruction would occur in the regular course of business. ” Doe v. Norwalk Community College, 248 F. R. D. 372 (D. Conn. July 16, 2007) 2011 | Copyright © 2011 Integreon 18

Empowered Discovery – Strategic Planning Processing directed by strategy § Did you collect everything you expected? • • Custodians Date Ranges File Types Variance from metrics § Triage to only process what you need as you need it § Identify problem files, non text searchable files, legacy applications and databases, early § Identify foreign language issues § Confirm whethere any PHI, PII, or Privacy Issues Know production specifications before processing; codify during meet & confer 2011 | Copyright © 2011 Integreon 19

Empowered Discovery – Results Oriented “all keyword searches are not created equal; and there is a growing body of literature that highlights the risks associated with conducting an unreliable or inadequate keyword search or relying exclusively on such searches for privileged review. ” Victor Stanley, Inc. v. Creative Pipe, Inc. , 250 F. R. D. 251 (2008) 2011 | Copyright © 2011 Integreon 20

Empowered Discovery - Production § Produce in strict accordance with formats outlined during meet & confer sessions § Check opposing production(s) to determine if they match agreed upon specifications § Prepare arguments as quickly as possible if you determine you need a format that is different from what was agreed § Maintain produced items in full native format, with all collected metadata, even if you do not produce in that format Be able to return to previously reviewed data to reuse in subsequent or parallel cases: “roundtripping” 2011 | Copyright © 2011 Integreon 21

Conclusion Litigants need and want aggressive project management, budget control and reports from in-house and outside counsel 2011 | Copyright © 2011 Integreon 22

Discussion 2011 | Copyright © 2011 Integreon 23

For more information contact: § Jeff Fehrman (jeff. fehrman@integreon. com) § Bennett Borden (bborden@williamsmullen. com) Copyright © 2011 by Integreon No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means — electronic, mechanical, photocopying, recording, or otherwise — without the permission of Integreon. This document provides an outline of a presentation and is incomplete without the accompanying oral commentary and discussion. 2011 | Copyright © 2011 Integreon 24