In This Issue:

	Feature Article: Proactive Data Management – Taking the Bull by the Horns in the Time of the Bear
	Litigation Minute: The Dual Role of ESI Experts – Experts at Trial
	News & Events

Feature Article: Proactive Data Management – Taking the Bull by the Horns in the Time of the Bear

If not managed correctly, corporate data management can be a source of endless confusion and exasperation for senior managers, IT personnel and counsel. The volume of electronically stored information (ESI) continues to grow exponentially as more and more information is created, conveyed and stored in electronic form. Moreover, data is increasingly difficult to manage as many corporations have restructured and realigned in an effort to reduce expenses and optimize operational profit. As a result, organizations are taking measures to do more with less and proactively manage their data – in other words, to take the bull by the horns in the time of the bear.

Corporate data management is essential in today's ESI-predominated business world. A corporation faced with a lawsuit or data investigation may be faced with the time consuming and expensive task of searching for information across what can be an uncharted morass of individual hard drives, servers and removable media. Of course, finding the data assumes that the requisite data was saved in the first place and that it has not been destroyed—either accidentally or willfully—in violation of preservation obligations.

The degree of complexity associated with data management is inversely proportional to the amount of planning that is done in advance. The following steps serve as a primer for an organization in creating and implementing a defensible data management plan:

Utilize Human Resource Expertise
Organizations must understand the varying locations in which data exist before a data management plan is created. As an initial matter, organizations should identify individuals who are knowledgeable about the company's data and enlist their expertise in identifying opportunities to capture and preserve data (such as employee departure).

Create a Data Map
The identified internal human resources should be leveraged to understand where corporate data is stored. It is important to consider that data can be stored outside the company, either through processes like cloud computing, application service providers or on online or offline archive storage facilities. The organization should then create a data map that identifies sources of active and archival data. Understanding IT landscapes can be highly technical, and companies often find that there is a steep learning curve in creating data maps. Leveraging the expertise of an experienced ESI consultant may prove helpful during this process.

Classify Records & Determine Retention Periods
A proper retention period is based on a record type's useful life and any applicable legal retention requirements, such as SEC or tax regulations. A document's useful life is the period for which the document will be relevant to the business needs of the organization. Barring any legal requirements, the legal standard for retention is "reasonableness." Reasonableness is determined in light of individual business practices and industry standards; consider partnering with an experienced ESI consultant who is familiar with legal and industry standards to assess your documents' useful life. Reliance on a neutral ESI expert will increase the defensibility of the retention period chosen if it is later challenged.

Determine Retention Procedures
A retention plan should detail how data should be maintained, when it should be converted to an archival format such as backup tapes and how it should be destroyed. The policy should set forth where the data is to be stored and who will be responsible for enforcing the policy on an ongoing basis. There are a wide range of options that a business can pursue to meet their data retention needs, from in-house vaults to offsite solutions. Cloud computing, where active data is stored by a third party provider and accessed remotely by an organization, is an increasingly prevalent option that should be considered. It is important to remember that the Federal Rules of Civil Procedure and similar state statutes require corporations to modify retention procedures to safeguard data that may be relevant in a litigation context when instructed to do so by counsel.

Create an E-Discovery Task Force
A group of individuals should be appointed to manage corporate records management issues as they arise. This group should be comprised of a diverse mix of individuals from various areas of the business including corporate counsel, human resources, business line managers, IT personnel and counsel. The team's roles and responsibilities should be defined at the outset and may include maintaining a corporate data directory, amending the retention policy as needed, implementing litigation holds, and overseeing the inevitable discovery and investigations that a company will face.

The key to effective corporate data management is advanced planning tailored to organization-specific needs. Following the above steps will serve as a guide to creating a data management plan that will ultimately cut discovery costs and defend an organization's retention actions in court.

In conclusion, taking the bull by the horns—even in the time of the bear—is not as daunting as it may seem at first glance.

Special thanks to Alan Brill, Kroll Ontrack, Senior Managing Director, for his contribution in writing this article. Mr. Brill specializes in technology security issues and high-tech investigations. He can be reached for question or comment at abrill@krollontrack.com for questions or comments.

Litigation Minute: The Dual Role of ESI Experts – Experts at Trial

Given the complexity and volume of electronically stored information (ESI), attorneys are increasingly turning to experienced ESI consultants to guide data retention efforts, as well as the identifications, collection, processing and production of responsive electronic data. These experts can also play a powerful role as a testifying expert at trial.

The following are common discovery disputes in which ESI and computer forensics experts can provide valuable testimony:

• Whether the Court Should Limit Discovery. Federal Rule of Civil Procedure 26(b)(2)(B) provides for limited discovery when ESI is "not reasonably accessible because of undue burden or cost." Showing that data is not reasonably accessible requires balancing the cost and time associated with accessing data against the importance of the data to the case, the amount in controversy and other factors. An ESI expert can objectively and knowledgeably determine the cost and time associated with accessing data based on the expert's prior experience and knowledge.
• Whether Evidence is Properly Authenticated. Authentication is a legal requirement that sufficient evidence exists to support a finding that the proposed evidence in question is what it purports to be. Forensic experts can often demonstrate that data is authentic based on the data's metadata, history, hash values and other technical details.
• Whether Spoliation Occurred. Spoliation is the alteration or destruction of a document so as to make it unusable as evidence. A computer forensics expert can often show whether spoliation occurred and whether that data was intentionally destroyed by re-creating a chain of events that shows computer conduct. An ESI expert can be used to demonstrate the reasonableness of a party's conduct as a defense against spoliation regarding retention, preservation and collection.
• Whether the Search Techniques Used Were Reasonable. The reasonableness of searches is important in cases where the completeness of production or the inadvertent disclosure of privileged materials is disputed. The reasonableness of the searches conducted often determines whether sanctions are warranted for incomplete production or whether privilege should be waived for inadvertent disclosure. An expert can be used to show the reasonableness of a client's conduct regarding the search terms used to retrieve responsive and privileged data.

ESI experts frequently play an invaluable role at trial, as well as during the discovery phase of litigation. Trial attorneys should consider the trial aspects of an ESI expert from the outset when selecting an ESI expert – ask whether the expert would make a convincing witness at trial and whether he or she has trial testimony experience.

Trial is the final length of an often long litigation marathon – choose an ESI expert for your team that will serve you well as you approach the finish line.

News & Events

Upcoming Webinar: E-Discovery Challenges – Global Disputes & Investigations
Join us on Tuesday, June 30, 2009 at 1:00pm EDT/12:00pm CDT to hear from experts during a one-hour webinar focused on issues arising from cross-border litigation. Global disputes make challenging electronic discovery projects even more difficult. Complicating this scenario further is the global financial crisis which is tightening legal budgets and impacting the way companies manage litigation. This presentation will provide a perspective from the UK on issues involved in global litigation and regulatory investigations, and will present solutions that can help ensure an organization's success in these financially trying times. For more information and to register, please visit www.krollontrack.com/redir/junewebinar-itt_062309.asp.

The ESI Report – Podcasts for In-House Attorneys Interested in ESI Trends
Kroll Ontrack has partnered with the Legal Talk Network to discuss cutting-edge issues and judicial opinions relating to electronically stored information (ESI) in a podcast series titled The ESI Report. In the June edition, host Gina Jytyla, Managing Staff Attorney in the Legal Technologies division at Kroll Ontrack welcomes e-discovery experts Tracey Stretton, Legal Consultant with Kroll Ontrack's UK office and Mark Surguy, a UK solicitor at Pinsent Masons LLP specializing in large scale multi-party litigation. They explore international litigation and investigations, specifically addressing the legal and pragmatic challenges of cross-border e-discovery in today's economy.

Download this podcast today by visiting www.krollontrack.com/legal-technologies-podcasts/.

Meet our representatives at the following events:

Visit www.krollontrack.com/upcoming-events/ for more information on these events and others.

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This newsletter was written by Meridith Socha and Kelly Kubacki, Kroll Ontrack Law Clerks, with assistance from Regina Jytyla, Kroll Ontrack Managing Staff Attorney. Ms. Jytyla can be contacted by writing to gjytyla@krollontrack.com.

For more information about electronic discovery and computer forensics services, contact Kroll Ontrack at 800 347 6105 or visit www.krollontrack.com.