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1© Copyright 2009 EMC Corporation. All rights reserved.
Help! Legal is on the Phone! Bringing eDiscovery In-House to Reduce Costs, Maintain Control, and Mitigate Risk
2© Copyright 2009 EMC Corporation. All rights reserved.
Agenda
Getting Acquainted
eDiscovery Reality
Getting Started
New eDiscovery Capabilities
Summary
Q&A
3© Copyright 2009 EMC Corporation. All rights reserved.
Getting to Know You
What is your job function?
Do you already use email archiving?
Have you had to deal with a request for legal hold?
Are you familiar with the eDiscovery jargon?
4© Copyright 2009 EMC Corporation. All rights reserved.
What is eDiscovery?
Requirement that organizations of all sizes collect, preserve, review and produce information for legal and regulatory proceedings.
Current and reasonably anticipated Federal and State litigation
State and Federal regulators, IRS,
OSHA,SEC, NASD, FINRA, HIPAA, Data Privacy & Protection
Investigation AuditInternal and external audit
of books and records, Defense Contractor Audit,
Government Contract Audits.
PublicDisclosure
Federal, State and Local - Freedom of
Information Act, Open/Public Records
Acts
Litigation
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eDiscovery and the FRCP
Electronically Stored Information (ESI) explicitly included– Management prior to discovery impacts costs of eDiscovery
Very early meet and confer
“Preserving” appears in the rules for the first time
Requirement to understand the sources of ESI
Less obligation to produce “inaccessible” content– Still may have to hold it (can be just as burdensome)
Limited “safe harbor” for good faith inadvertent destruction of content – Best protection through solid records management program, including litigation hold
Some protection for inadvertent waiver of attorney-client privileged materials
Need for transparency!
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eDiscovery Reality
Information management challenges– Unstructured data piling up– No enforced policy, including disposition
and retention
eDiscovery issues– Massive cost and risk – Average cost of a single eDiscovery
incident is $1.5M*– Exposure of ineffective information
management
Spending inefficiencies– Many organizations are outsourcing– Recurring expense for every matter or
investigation
Economic implications– Economic conditions and litigation
frequency run counter-cyclical– As the economy deteriorates, lawsuits and
investigations increase
* Source: Dataquest Insight: Emerging E-Discovery Market Spurs New Content and Records Management Investments, Gartner Research, October 2006
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Inefficient Information Management is Costly
Source: Gartner, E-Discovery: Project Planning and Budgeting, 2008–2011, February 2008
ROI FACTORS
Up to 90% of [stored] data is
redundant or out of date
Up to 50% of network drive
storage is consumed by e-mail files,
mainly PST and files from other systems
One GB of data can result in $18,750 in legal review costs
Cut IT and legal costs by 10–50% by
bringing outsourced solutions in-house
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The Expense of eDiscovery
Process Step% of
Discovery Costs*
Description Average Cost of Outsourcing
28%Costs associated with document collection from inaccessible locations
Identification - $200/hrCollection –
$200+ /hr or$400+ /GB
20%Cost of holding massive volumes Unanticipated legal riskSpoliation risk
$100+ /hr or $5+ /GB
35%
Cost directly related to number of documents to review
Processing –$850+ /GB or $.03+/ pg
Review –$120+ /hr or $1,200+ GB/Mo
17%Cost of delivering ESI to various recipients on various media (e.g., CD, DVD, or paper)
$.06/pg$50+/load file$1,000+/GB
Produce
Collection
Hold
Inspect/Revie w
Source: Enterprise Strategy Group, 2007 and Gartner, 2007
*when proceedings or investigations involve the discovery of ESI
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Legal Department Challenges
Difficult to identify or collect ESI
– Massive over-collection waste of resources, risky “pooling” of data– Substantial risk of “faux” eDiscovery
No Early Case review
– Data collection is time consuming– Data processing/culling does not occur until the opposing parties agree on the
scope
Significant expenses for legal review
– 1 GB equals approximately 50,000 files to review– Not enough attorneys to review the data– No way to review the data without possibly changing the metadata
Sanction risk
– Manual process leads to jeopardy– Difficult to meet deadlines and comply with legal obligations
10© Copyright 2009 EMC Corporation. All rights reserved.
As Economy Contracts, Digital Universe Expands
Expected to double in size every 18 months -- 5X as much digital information in 2012 – 487 BILLION GB!
Interaction between people via email, messaging, social networking grows by factor of 8
Amount of information considered compliance intensive (subject to rules) grows from 25% in 2008 to 35% in 2012
– Email archives– Financial– HR records– Litigation documents
The Enterprise Faces the Digital Universe
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As Economy Contracts, Litigation and Regulation Expand
Regulatory investigations– Fallout from the financial crisis = enhanced regulation
Employee litigation – Layoffs generate lawsuits and investigations
Shareholder derivative actions– Reporting, drop in stock, financial crisis
Aggressive IP practices– Seeking additional revenue sources
CFO oversight– Weaker economy results in pressure on expenses - including legal
Sources: Forrester: “Trends 2009: eDiscovery”, Brian Hill, 1/15/2009“As companies increase layoffs, lawsuits are likely to follow”, Carol Williams, Los Angeles Times, 12/28/08
“As one outcome of the current macro-economic environment… expect more litigation and regulation in 2009.” Forrester
“A tidal wave of
wrongful termination
lawsuits is expected in
the coming months
…”Los Angeles Times
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2009 by the Numbers
Source: Fifth Annual Litigation Trends Survey, Fulbright & Jaworski, Oct. 2008
Expect an increase in
litigation during 2009
(“large” companies)
$1B+ companies spending >$10M on litigation each
year (excluding settlements
and damages)
Have more than $20M at risk in
at least one case
(public companies)
Anticipate even more regulatory
inquiries and proceedings in
2009 (all respondents)
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Two Years After FRCP Amendments…
“Companies Not Ready For E-Discovery”, http://www.informationweek.com/blog/main/archives/2008/09/ companies_not_r.html, posted 9/23/08 (Andrew Conry-Murray, Information Week). Survey from Oce Business Services.
State of Readiness = Unprepared
57% of law firms: clients not ready to find and produce information relevant to litigation
39% of in-house counsel: company not prepared for eDiscovery
Errors generate sanctions and headlines
Scenario 1
Lawyers for company produced small batch of relevant email about 10 hours before trial. U.S. District Court Judge Marilyn Hall Patel declares “heads will have to roll.” According to reports, the
punished company had reviewed terabytes of information for this case.
Scenario 2
Company hit with an $8.5M penalty for mistakes with its own discovery of email relevant to a patent lawsuit. As Federal courts emphasize the responsibility of parties to conduct thorough discovery
searches, more such mishaps are likely.
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How about You? Where would you put your organization with regard to litigation procedures?
“© AIIM 2009, www.aiim.org”
0% 5% 10% 15% 20% 25% 30% 35% 40% 45%
We have no policy to deal with litigation or legal discovery
A legal discovery process might require us to search back‐up tapes
A legal discovery is likely to show up gaps from deleted emails
We have a policy to deal with legal discovery that relies on manual processesWe can carry out legal discovery searches
across our email archiveWe can carry out a single legal discovery
search across all of our records repositories
We can set a legal hold on our email archive
We can set a legal hold on both active and archived emails
We can justify deleted emails based on retention policies
Our email deletion mechanism includes deletion from back‐up tapes
N = 1109
no policy to deal
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How Long? Would it take you to produce all the organizational information related to a former custodian or constituent?
0% 5% 10% 15% 20% 25% 30%
less than 5 days
5‐14 days
15‐30days
31‐60 days
more than 60 days
N = 1109
*Source: AIIM Industry Watch “Email Management: The Good, the Bad, the Ugly”. © AIIM 2009, www.aiim.org
~30% would take more than 31 days for just
1 custodian
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Based on 107 respondents. Source: ESG Research Report, 2007 E-mail Archiving Survey, November 2007
Beyond Email and Outside The ArchiveWhich of the following record types has your organization been asked to produce in a legal proceeding or regulatory inquiry?
File Server
Desktops
Email Server
Laptops
Includes Email residing on
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eDiscovery and Records Information Management ROI
“Between 10% and 90% of what
[clients] have does not need to
be retained for any reason.”
Budget roughly $500,000 on IT
support for cases involving 10 or
more custodians and/or more than
three different systems
One TB of data can result in $18.75M in
legal review costs
Unprepared companies will spend 1/3 more on eDiscovery than those with
content archiving solutions.
RO
I Factors
“Organizations unprepared for e-discovery in 2009 will be at a disadvantage …open to potential sanctions from an increasingly technically literate U.S. judiciary. As defendants, organizations
need to respond quickly and effectively … As plaintiffs, organizations must have their ESI house in order and be prepared
for reciprocal discovery requests …”Gartner, “Reduce the Cost and Risk of E-Discovery in 2009”, D. Logan and J. Bace, 1/9/09
18© Copyright 2009 EMC Corporation. All rights reserved.
What If You Could…
Improve litigation effectiveness by producing relevant information quickly, accurately, and defensibly?
Reduce the risk of spoliation (alteration or destruction of evidentiary ESI) by employing a proven litigation hold process for email and unmanaged data?
Lower legal costs with in-house, automated, repeatable eDiscovery processes?
Improve IT efficiency and reduce costs by establishing the business value of electronically stored information?
19© Copyright 2009 EMC Corporation. All rights reserved.
Getting Started
Litigation readiness
U.S. Federal Rules of Civil Procedure
(FRCP)
Expanding eDiscovery rules
worldwide
Security and privacyProtection of
corporate information
Limiting access
Industry regulations
Varied, numerous, and continuing to emerge
Regulation interpretation drives
policy
Corporate record keepingRecords and retention
management
Historical preservation/file plan
Massive information
growthUnsure about
information value (and risk)
Saving everything
Good Information Governance
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Engage the Stakeholders … Get Cross-Functional
AuditCompliance
Records Management
BusinessComplianceBusiness Units
FinanceHR
TechnologyLegal
OGCInside Counsel
Outside Counsel
IT InfrastructureIT Applications
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What Language are We Speaking?
Legal
FRCP/FRE
ESI
Legal Hold
Meet and confer
Custodian
Trusted custodian
Spoliation
IT
Active Directory
Fuzzy logic
SIS
Journaling
Boolean expressions
ASP, ISP, cloud computing
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Respect the Motivation
Inside Counsel“Business Perspective”
Legal holds for individual custodians
Narrow view of relevant issues as stated in complaint
Provides too much or too little information
Centralize discovery to reduce review and production costs
Efficient business function dictates format of documents
Focus on finding ESI/hardcopy
Broad legal hold for business unit
Broader view of relevant issues aimed at winning case
Early case assessment to plan strategy
Spend what’s necessary to fulfill legal discovery obligation and litigate case
Produce document with consistent format
Establish clear chain of custody
Outside Counsel“Litigation Perspective”
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Understand Your Litigation Profile Routine Matters
Characteristics ExamplesLimited business scope On-the-job injury
Most work handled by in-house admin staff HR matter
Work product may be reviewed by in-house counsel prior to submission to requesting partyShort timeframe; small number of custodians
Little or no day-forward collection/preservation
Short duration from notice to resolution
Other considerations– Average size
Number of investigators (3)
Number of custodians (10)
Duration (12 months)– Number per year (24)
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Understand Your Litigation Profile Significant Matters
Characteristics ExamplesBroad business or revenue impact scope SEC investigation
Work may be split between in-house admin staff and in-house legal staff
Patent infringement
Work product may be reviewed by outside counsel prior to submission to requesting party
Executive misconduct
Reasonable timeframe; modest number of custodians
May require significant day-forward collection/preservation
Modest duration from notice to resolution
Other considerations– Average size
Number of investigators (30)
Number of custodians (100)
Duration (36 months)– Number per year (5)
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Understand Your Litigation Profile “Bet-the-Business” Matters
Characteristics ExamplesPotentially significant revenue impact Product liability
Potentially significant reputational impact Class action suit
Work may be split between in-house legal staff and outside legal counselWork product reviewed by outside counsel prior to submission to requesting partyLong timeframe; large number of custodians
Likely to require significant day-forward collection/preservation
Long duration from notice to resolution
Other considerations– Average size
Number of investigators (100)
Number of custodians (250)
Duration (72 months)– Number per year (1)
26© Copyright 2009 EMC Corporation. All rights reserved.
eDiscovery SolutionsIdentify, Collect, Preserve,
ExportImmediate ROI
Information Management Solutions
Records ManagementEmail Archiving
Save money; improve eDiscovery (over time)
Information Management and End-to-End eDiscovery ROI – Reduce Risk; Improve Data Use
Collection
Preservation
Review Production Presentation
Processing
Analysis
IdentificationInformationManagement
InformationManagement
eDiscoveryProcess
SourcesThe Electronic Discovery Reference Model, www.edrm.net“What To Do About Discovery and Legacy Information Management in 2009, Gartner Inc., Debra Logan, 1/10/09
“IT organizations that have an electronic information inventory,
active policy management and archiving solutions,
and a repeatable process in place for e-discovery will
spend up to 50% less on e- discovery in 2009 than
those that do not.” Gartner, 1/09
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Policy Management Solutions
desktop
Email Policy Management and
Discovery SolutionsCollect and Hold Solutions Enterprise Records
and Policy Management Solutions
Secure Repositories
File share, email Other
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Proactive Email Management
Key Capabilities• De-duplicated, full-text indexed archive
• Flexible search interfaces for users, Supervisors, and Administrators
• Flexible retention policies
• Preserve all relevant metadata
Tangible Benefits• Find messages quickly
• Cost effectively store messages for long- term retention
• Eliminate risk of unmanaged personal archives
“In the past it could have taken up to 40 to 50 hours to go through the tapes and search for large chunks of e-mail…for our legal counsel…Now that we have online access to these records, we can often pull up everything they need within 2 to 3 hours.
— Director of IT, Cascadia Capital
29© Copyright 2009 EMC Corporation. All rights reserved.
EMC SourceOne for eDiscovery
EMC SourceOne Email Management helps mitigate cost and risk of eDiscovery• Centrally manage e-mail
• Consistently enforce retention and disposition
• Metadata proves authenticity
EMC SourceOne products and solution for eDiscovery • Reduce time and cost associated with
eDiscovery
• Bring more of the process in-house
• Create repeatable business practices
Manage information effectively for proactive litigation readiness
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EMC Offerings mapped against the EDRM
Collection
Preservation
Review Production Presentation
Processing
Analysis
IdentificationInformationManagement
SourceOne Discovery Collector
EMC Global Services & Partner Service Providers
EMC Storage
InformationManagement
eDiscoveryProcess
SourceOne Email Management and Discovery Manager TechnologyPartners
SourceOne Email Management
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Comprehensive identification and collection•High-volume search of archive•Search against custom metadata
Consolidated preservation•Consolidate into legal hold folder•De-duplication and full text indexing•Chain-of-custody preservation
Effective culling with matter specific tagsFlexible export•Variety of formats•EDRM XML standardDownstream savings•Less content to outside counsel•Repeatable business process
EMC SourceOne Discovery Manager Discovery of Email Within the Archive
Secure matter management• Simple wizard-driven interface• Security at matter level• Matter lifecycle management
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EMC SourceOne Discovery Manager Repeatable business process in action
Matter “areas” for easy organization
of data
Configurable display for easy sort, filter, and step through
results
Preview pane for quickly “reviewing” search results and
establishing matter relevance
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EMC SourceOne Discovery Manager Collection and Preservation
Search history captured and viewable by investigators
Comprehensive statistics to
monitor investigation
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EMC SourceOne Discovery Collector Discovery of Content Outside the Archive
• Index and classify content in-place• Retain and delete content
according to policy
• Vigorously tested• Integrated with EMC infrastructure
EMC Infrastructure
• Gain insight into sources of electronically stored information
• Reports enable early case assessment to determine merit
• Purpose-built for eDiscovery• Defensible processes
• Ability to address content inside and outside the archive
File Server
E-Mail Server
Desktops
Document Management
Archives
• Indexing appliance; quick to deploy• Less content sent for processing and
review• Fast return on investment
Rich eDiscovery Features
Policy Management Early Assessment
Complements Archiving
EMC Proven Solution Fast Time to Value
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Discovery Collector
EMC SourceOne Discovery Manager and EMC SourceOne Discovery Collector
Efficient and complementary– Address content inside and outside
archive– Improve information management
Index and classify data
Create or enforce policy
Tiered storage based on value
Rapid time-to-value– In-house eDiscovery
Quick-to-deploy appliance
Defensible process
Information governance – Enterprise strategy– Modular approach
Leverages EMC infrastructure– Delivers price/performance leadership
Files, emails, and other content
outside the archive
File servers
Desktops
E-mail servers
Archives
SharePoint
Email living in the Archive
EMC SourceOne Email Management Archive
Discovery Manager
EMC Infrastructure
36© Copyright 2009 EMC Corporation. All rights reserved.
Straightforward ROI
“MarketScope for E-Discovery Software Product Vendors”, Gartner, Inc., 12/17/08.
“The payback period for an eDiscovery investment is very short, on the order of 3-6 months after implementation takes place.”
37© Copyright 2009 EMC Corporation. All rights reserved.
EMC SourceOne for eDiscovery Benefits
Respond cost-effectively to eDiscovery requests.Implement a repeatable business process that minimizes eDiscovery and compliance costs.Enforce information management policies for both email and unmanaged data scattered outside the archive.
Take the next stepSet up a product demo Request an ROI/TCO analysis www.EMC.com/SourceOne
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Summary
Get prepared.
Involve all the stakeholders in the process.
Tailor the solution for your needs … not just litigation … but cost savings and business productivity, too.
Work on the process as much as the technology.
Think good information governance.
Think EMC SourceOne solutions.
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