I am live blogging from the Masters Conference 2010 (a conference that attracts leading e-Discovery professionals). This session is “Achieving Litigation Readiness and Developing an E-Discovery Response Plan” with panelists Dave Cohen of K&L Gates, Martin Tully of Katten Muchin, and Connie Mockaitis of Abbott Labs. 

Dave Cohen kicks-off the session. Notes that there are many sanctions cases in e-discovery now. Avoid with good records management practice and a sensible e-discovery response plan. EDD is a “ticking time bomb.” In old day, more than 100k pages was big; cases are MUCH bigger today. A gigabyte average 50k pages and it’s common for a single custudian to have 2 to 10 gigs of e-mail and other electronically stored information (ESI). It’s easy to end up with 2 to 10 million pages – and that’s just a medium size case.

Putting a price tag on managing this….. you can spend $400/gig with vendors. But filtering with ECA can reduce volume. The review cost is even higher, often $15k / gig to review. So you need a good plan to control costs. Looking at the EDRM reference model, start on the left to manage information early on.

Good records management is like exercise – hard to do but it puts you in good shape. Five steps:

1. Records Retention Policy, which is driven by business needs, legal or tax compliance, and litigation defense. K&L Gates found that only about 20% of record types have specific legal requirements for preservation (e.g., employment, environmental, and financial disclosures). Even though storage costs are low, recommends NOT to save too much; rather, you should save only what you really need. Best approach is a written records management policy specifying what is retained and what is automatically deleted (absent affirmative action by users to save or litigation hold). Has found that most users will preserve only about 25% of e-mail for longer term retention in face of automatic deletion program( unless action taken). Storing mail in PST is a bad practice; e-mail folders should be on shared folders where easier to access, control, and back up.

2. Backup Policies. The purpose of back-up is for disaster recovery; they are not an efficient storage mechanism. Tapes and other media should be saved only as long as necessary for purposes of DR. Saving more than that creates e-discovery headaches. So companies should save back-ups for days or weeks, not months or years.

3. Electronic Communication Policies. Have a clear policcy that indicates company resources are for company business.

4. Employee Training. E-mail sensitivity, foldering, handling of devices. Need to dispel myth that e-mail is like oral communication, is ephemeral, is private, is safe, and is individual.

5. Adopt Litigation Hold Procedures. Have a form notice that corporation can send when need arises.

Martin Tully is up next…. polls audience about how many have above and similar measures in place. Not that many hands go up. Polices must be updated and enforced or they are worse than having no policy. Cites Pension Committee as advisable to follow: failure to timely issue a written litigation hold constitutes gross negligence. Failure to collect from key players constitutes gross or willful negligence.

When do you need to preserve and what? Answer is “it depends.” “Case law is all over the map on this.”

How detailed should the hold documentation be? Abbott believes in written documentation, which it prepares in conjunction with outside counsel. K&L Gates lawyer thinks it should written so that you are happy to produce it if asked. Best approach, where possible, is to agree with opposing party about what to preserve.

Smart Review Practices: Process is most important. Also need people and technology. “Failure to plan is planning to fail.”

Connie Mockaitis…. Legal and IT must work together closely. Cultivating relationships with those who create and manage records is essential. Abbott created a data manual (it’s not a data map – we don’t know where all the servers are). It helps outside counsel scope matters for early data assessment. It helps lawyers scope data collection. Legal and IT physically sit together to work on e-discovery.

Abbott promotes standard operating procedures (e.g., collection from a laptop or how to handle departed employee information), service level agreements (specify reasonable response times for data collection), fostering legal <> IT communication.

Lotus / IBM Notes group devotes 2 people to dealing with legal holds. Company has developed a tool to improve process.