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Blogging LegalTech West 2008: Litigation Holds

Posted by rjbiii on June 29, 2008

The second, and for me last, presentation of the day was “Ready…Set…Preserve: Navigating the Legal Hold Process and Technology. The panel consisted of Patrick Oot of Verizon, Kraft’s Chief Counsel Theodore Banks, and American Electric Power’s Kamal Kamara.

The rule of thumb that triggers a legal hold is (say it with me class), the date when litigation may be reasonably anticipated. The very last date that can be justified for the issuance of a legal hold is the date the complaint is actually filed. The first step to implementing a legal hold is to determine the identity of the key players. However, before the hold is even necessary, some preemptive actions should have been addressed. Litigation readiness best practices suggest that record management training for all employees is important. These rules apply:

  1. The guidelines employees study must be related to their jobs.
  2. Information on how to comply with relevant policies should be easy to find. They should have access to manuals, or intranet web sites with the necessary guidelines.
  3. Training should be consistent, and reinforced periodically.

The purpose of the legal hold is to stop destruction of potentially responsive information, identify that data, and save it. Employees should understand the consequences of failing to comply, and where to get help when they have questions.

Mr. Banks explained that for Kraft, the legal hold was triggered later than would be appropriate for some others, because of the nature of the complaints his company confronted, and the design of its information system. Much of the data needed was historical information that was preserved anyway, often for reasons of compliance with federal retention laws.

Mr. Kamara described his company’s home-built lit hold solution as being similar to e-vite. All three companies used custom built solutions rather than “off the shelf” products.

Some important points: acknowledgment by recipients is an essential component to a lit hold system; audit trails and the availability of reports is important.

I enjoyed this presentation more than the previous session. The panelists were good, but I also got to see screenshots of various systems, which I found interesting. The next step now is to see how technology can be used not only to issue notice of a hold, but to also take action to prevent actual destruction of information.

Posted in Best Practices, Data Custodians, Document Retention, Duty to Preserve, Industry Events, Litigation Hold, Trends | 1 Comment »

Blogging LegalTech West 2008: Building an e-discovery task force

Posted by rjbiii on June 28, 2008

As mentioned in the previous post, there were three main tracks of courses to choose from. My associates and I glanced over them to divide the subject matter up between us, and I ended up on the “Corporate Perspectives” track, which suited me.

What was less than satisfying was that the first event was a panel discussion centered on building an E-Discovery task force inside the company. Not a particularly interesting topic for me; not because it’s unimportant, but rather because I have already attended a number of similar presentations, read much of the literature on it, written about it in my own papers, and dealt with the subject extensively in my own work. So it’s “old hat” to me, as they say.

Nevertheless, a colleague of mine and I found good seats and settled in. The panel consisted of Kroll Ontrack’s Linda Sharp (who acted as moderator), Cynthia Nichols from Taco Bell Corp., Michael Kelleher of Folger Levin & Kahn LLP, and Joel Vogel o Paul, Hastings, Janofsky & Walker LLP.

Most of the information presented was standard, and no new ground was covered (at least for me), however, it was well-done and all panelists contributed significantly to the discussion. No new ground was covered, but in all likelihood, the needs of the target audience were met.

The meeting began with a discussion outlining the need for the proactive implementation of pre-litigation measures to deal with issues presented by in the era of “ESI.” With Ms. Sharp leading the way, it was noted that 50% of corporate America has no policiy with respect to managing ESI, and 75% feel they lose time due to inefficient or non-existent ESI policies.

The panel then turned to the question of what elements and constituencies should comprise an E-Discovery team? Depending upon the size and internal structure of the company, the panel listed the following possibilities:

  • Corporate Counsel
  • IT
  • Human Resources
  • Records Management
  • Corporate Security
  • Trial Counsel
  • Discovery Counsel
  • Outside Vendor(s)

Obviously, the nature of the matters that confront any particular corporation, and the relationship the company has with outside law firms and vendors are factors in building the right team.

The discussion then moved the task force’s need to educate themselves on their company’s data infrastructure. Questions the task force should address are: where does company data reside? How is it maintained? How is it accessed, and by whom? When (and how) is it destroyed? Here, some recommended that a systems information directory be generated and maintained by the team. Others argued maintaining the document was inefficient, and that this could best be addressed by updates as needed (i.e., as new legal matters arise). I tend to lean toward maintenance on a regular basis, although I can see some situations in which the contrary view would be a better fit.

The discussion then looked at Discovery Response Checklists, and what elements should constitute it. Some of these items included: the issuance of hold statements, discontinuing data destruction and back-up tape recycling policies; and handling e-mail archiving.

Overall, a fairly pedestrian, but useful presentation. The panelists were articulate and knowledgeable, and laid out the issues in an organized and effective manner. If you’re interested in the subject, and other ideas for proactive measures, one article that I liked on the issue is:., Renee T. Lawson, Taming the Beast—Implementation of Effective Best Practices for Electronic Data Discovery, 747 PLI/LIT 305, (Oct-Dec 2006).

Posted in Best Practices, Data Management, Discovery, Industry Events, Trends | Leave a Comment »

Blogging LegalTech West 2008: Keynote Speech by Chevron’s Charles James

Posted by rjbiii on June 27, 2008

First, if you aren’t able to attend LegalTech, you can watch a live feed, including an occasional interview, at a live feed provided by Orange Legal Technologies.

The Keynote speech was made by Charles James, VP and General Counsel of Chevron Corp. Mr. James received his bachelor’s degree from Weslayan, and earned his law degree from the National Law Center at George Washington University.

Mr. James discussed his role in helping to modernize the legal department, and to help it navigate the choppy waters caused by the emergence of ESI and electronic discovery as a substantial factor in litigation. He pointed to three major areas that had been affected by the modernization: legal billing, the incorporation of an e-discovery processing platform into in-house IT processes, and the implementation of a document management system. While Chevron is justifiably proud of its progress, Mr. James said that the process had been very difficult; more difficult than he had imagined that it would be when he started the overhaul.

He listed the three major “failings” for which Chevron had been responsible during the process:

  1. The desire to elicit input from all constituencies caused confusion and created something of a politically charged atmosphere where turf wars broke out, and decisions devolved into contests that parties “won” or “lost.” In retrospect, more guidance from technical experts was needed.
  2. He and other leaders were “overly seduced” by the lure of the idea of automation. By striving for maximum automation and minimal human intervention, Chevron’s managers produced convoluted workflows that needed a “dose of reality.”
  3. Finally, Chevron underestimated the scope of change management necessary to implement the new systems. Mr. James noted that the average attorney at Chevron at the time he assumed his position was 52, and that to have expected these lawyers to have an hour of training, and adapt to the new environment was unrealistic.

He listed his top three frustrations with vendors in the eDiscovery space:

  1. The common practice of “grossly overselling” practicality, functionality, and inter-operability of our solutions. He said that the three phrases had come to loathe are: “seamless integration;” “complete enterprise solution;” and “that functionality isn’t included now, but it’s coming in the next upgrade, which will be in beta…soon.”
  2. The lack of inter-operability between different programs, residing in different areas of the EDD workflow. Quoth Mr. James, “as Rodney King said, can’t we all just get along?”
  3. Finally, he wished that vendors would quote realistic conversion and implementation costs.

His final remark was a challenge to vendors: he said that after the country’s legal system “is fixed,” effectively ending the e-discovery gold rush, he hoped that vendors would put as much zeal into crafting KM solutions as they currently do with EDD.

The three main tracks available for attendees today were:

  • Evolving E-Discovery Issues and Methods;
  • Corporate Perspectives on EDD; and
  • Advanced IT

There were also tracks on Practice Management and Emerging Technology. I attended presentations on the Corporate Perspectives track for the first two blocks of time, and then had to leave for a couple of events with clients. I’ll blog more about those presentations (“Building a Discovery Task Force,” and “Navigating the Legal Hold Process and Technology”) later.

Posted in EDD Industry, EDD Vendors, Industry Events | Leave a Comment »

Blogging LegalTech West 2008

Posted by rjbiii on June 26, 2008

Sorry for being inactive; I’ve been traveling. I’m currently in L.A. at LegalTech West, and have attended a couple of presentations on the first day. I’ll post my impressions later tonight. First, however, duty calls in the form of dinner with a number of clients…sometimes the duty isn’t half bad!

Posted in Industry Events, Site News | Leave a Comment »