Information Governance Goes to Court
Moderator:Jeffrey Toobin, Senior Analyst, CNN
Panelists: John Facciola, United States Magistrate Judge; Shira Scheindlin, United States District Judge; Jon Stanley, Director of InfoTech Legal Research, Elchemy; Steven Teppler, Senior Counsel, KamberEdelson, LLC
Toobin mentions two cases that took so long because of electronic discovery. Why did they take so long.
Shira: The first case was gender related. She kept all email. When requested from the company only 7 showed up. Pushed hard and got more from the backup which actually told the story. The verdict was in her favor.
Facciola: Disabled people said they were being discriminated against. Again missing email was key. Backup tapes again were used to get emails. Case settled.
How to avoid problems?
Steven: Setting up in advance is key. Having a plan.
Mod: What about the cost?
Jon: Cost is almost everything. Both money and time. Be prepared up front for this process. It will be much less costly. Legal and tech must work together.
Shira: Commenting about cost shifting and sharing. Should the plaintif share in that cost. New rules have a cost sharing and/or shifting portion.
Mod: How do you measure what is an appropriate cost?
Shire: Nobody has an absolute right to everything. We (courts) to be reasonable. Is the data reasonably accessible?
Lots more discussion of cost.
Seeing a decrease in cost.
Shire: Evidence is not always against you. Make sure you remember that. Mentions the assumption of asymmetric cases.
Current talk about why civil litigation is not going to trial.
Shira: 97% settle out of course.
Facciola: Judges are still very involved in settling cases.
Mod: What is reasonable treatment?
Shira: Discovery ruling are at lower court level. No hard guidance.
Mod: What does it mean to look for data in a modern company?
Steven: Where is your data stored? Where is backed up? Cloud computing, data is everywhere and anywhere. Searching and preserving gets much more complicated. No real legal precepts at this point.
Mod: Advice?
Steven: Outreach programs. Working with standards bodies.
Mod: Same question
Jon: Groups (ABA, etc.) are trying to come up with "best practices" and standards by working with groups like RSA and others and feeding that input back to lawyers.
Humor about not needing to describe data breach to the audience.
Jon: There is no case law to support data breach notification, patch management, etc.
Mod: What kind of sanctions are available to judges?
Facciola: They do everything in their power to avoid the need.
Shira: Sliding scale of sanctions, money to evidential sanctions to default judgments all the way up to contempt of court.
Mod: How do you convince people that it is worth to spend the time and money ahead of time?
Steven: Current processes to keep data secure and intact are in general the same processes you would use to get evidential data. More of a repurposing.
Jon: Doing it is kind of like insurance. It could save you in the future
Shira: Litigation is a cost of doing business. Companies of this.
Mod: What records other than email?
Steven: System meta data, application meta data, logs, processes, procedures, etc.
Jon: Audit logs.
Back to lots of discussion about cost.
Interesting comment from Facciola about the human component in the review of the amount of data to be looked at. Automation required.
Mod: Discussion about search now.
Steven: keyword searches and boolean searches. Context and content searches, looks for patterns.
Shari: New techniques always being developed.
Mod: What's the first thing a company should do when sued?
Steven: Make sure the "litigation button" gets turned on. Make sure documentation is being saved.
Jon: Activate a team that can make decisions and responsibilities established.
Shira: Litigation hold must go into effect immediately. Suspend auto deletes.
Facciola: Get a competent legal advice.
Some discussion about out-sourceing of e-discovery review. Causing some problems.
Panel closes.