Records and Information Management (RIM) Implications of Legal Holds and Litigation

Duration: 1:05:00 · Recorded: 2022-03-17

Speakers: Lisa Coombs, President, ARMA Triangle Chapter; Anna Aquino, President, ARMA Madison Chapter; Janet Dotson, Program Chair, ARMA Triangle Chapter; Rick Surber, JD, IGP, CRM, Senior Analyst and Licensed Attorney, Zasio (co-manager of the consulting division and manager of the legal research division); Jennifer Chadband, JD, CRM, IGP, ECMp, Senior Analyst and Licensed Attorney, Zasio

Lightly edited machine transcript. Slides are summarized where they carry information not spoken aloud.

Lisa Coombs: This conference will now be recorded. Okay, welcome, everybody. My name is Lisa Coombs. I am the president for the ARMA Triangle Chapter. If you do not know where the Triangle is, we're centrally located in North Carolina, the Raleigh-Durham-Chapel Hill area.

So, greetings from my neck of the woods. We have a really exciting event today, and we are collaborating with the Madison ARMA Chapter. And it's been really great to get to work with Anna and Jen from Madison. So I'm going to give them a little bit of time to speak as well. But having this big, this virtual platform has allowed us to do a lot of great networking.

So, welcome to the Madison Chapter. And if you're not in the Madison Chapter or the Raleigh chapter or the Triangle Chapter, welcome. Again, my name is Lisa Coombs, and here with us today are Rick Surber and Jennifer Chadband with Zasio. And they're going to be speaking about RIM implications, legal holds and litigation. And I'm going to let Janet, our programs chair, introduce them further.

And Janet, would you like to talk about Spring Seminar Mania as well, or would you like me to do it?

Speaker: Let's toss the baton over to Anna first. And then we'll come back around to that. All right, I'm passing, everybody.

Anna Aquino: Welcome, everybody. My name is Anna Aquino. I am the president of the Madison ARMA Chapter, and we are pretty excited to have partnered with the Triangle Chapter for this program. Everybody's pretty excited about it, and a lot of many inquiries about participating in this program. So we're pretty excited about having the opportunity to work with you guys together.

I want to thank Jen [inaudible], one of our board members, for putting this together and organizing this program, along with Janet from the Triangle Chapter. And we're looking forward to having you; make sure that you visit our website for our upcoming programs. We also going to be participating in the Spring Seminar Mania. We have 13 chapters participating in that. So we have some pretty exciting programs here.

So make sure that you join us there, too. We will have a little survey after the program so you can give us some feedback about the program, so we can bring the same type of programming for you guys later. Thank you for the opportunity, and enjoy the program. And thank you, Lisa and Janet and Jen. [Another participant: Thank you.]

Janet Dotson: So I'm Janet Dotson. I'm the program chair with the ARMA Triangle, and as you've heard mentioned, and I think, Lisa, we might be better if we talk further about the Spring Seminar Mania, which is a collaboration of 12 to 13 chapters running from April into May. It'll be on our website. We'll have more information and marketing out there available soon. We can stick around afterwards for any questions and also maybe talk about that as well, too.

Because I think folks are highly interested and eager to get going on to hearing from Rick and Jen, if that's okay. [Another participant: Absolutely.] All right. Move it right along here. Yeah, well, we greatly appreciate Rick and Jen being here today. They're just awesome.

And we have worked with Zasio for a good many years and just really appreciate their knowledge, their insight, their help in all aspects of information governance and records retention management along the way. They're just absolutely both fabulous. And we are so totally delighted to have them both here with us today. Rick is a senior analyst and licensed attorney at Zasio and co-manager of the consulting division. He also manages Zasio's legal research division.

Woo-hoo! Big shout-out for that, for anybody who has to always be looking at citations and everything. So thank you, Rick, for that. Rick has helped clients ease records and information management pain points, focusing on RIM program enhancement and development. This includes policy work like records retention schedule development, simplification, maintenance and compliance.

It also includes strategizing about RIM's role in information governance and how to build cohesion between our IG stakeholders like legal, privacy, IT, and risk and compliance. Jennifer has an extensive experience in a variety of RIM and IG areas, including corporate retention schedule development with a focus on legal, operational compliance and risk minimization. Her experience in records and information management is in the pharmaceutical and the financial service industries, and an invaluable asset to the consulting team. We also [inaudible] the pharma industry and worked with Jen, and it's been just fabulous. We thank you very much, Jen.

Jennifer also brings a broad knowledge and understanding of relevant domestic and international laws, including recordkeeping related to privacy laws as they apply to client industries.

[Slide: Title slide: "RIM Implications of Legal Holds & Litigation," presented to ARMA Triangle & ARMA Madison Chapters, March 17, 2022, 1:00-2:00 PM EDT.]

And with that, we thank you both very much and turn it over to Rick and Jen.

Rick Surber: Well, thank you for those kind introductions. We're really excited to be here today, and we were excited for the opportunity to talk on this subject. It's one that gets into the IG nature of the relationships between legal and RIM and other interested parties in IG, and so it's a great one. Okay.

[Slide: Discussion Leaders: Jennifer Chadband, JD, CRM, IGP, ECMp, Sr. Analyst / Licensed Attorney; Rick Surber, JD, IGP, CRM, Sr. Analyst / Licensed Attorney.]

Let's see, am I advancing here? There we go.

Gonna have to start this one off with just a little disclaimer here. This presentation isn't supposed to be construed as legal or other professional advice. And it's not an advertisement for legal or professional services. It's really just for general informational purposes, and the opinions are ours. They don't represent the views of Zasio.

I think this highlights, and it's a good time to mention that, especially with this subject, litigation and legal holds were really within the legal spoke of information governance here. And so legal counsel should be engaged before starting any RIM strategy or policy work related to legal holds and litigation preparedness. RIM is definitely a critical player here, but legal runs this show. And so get this conversation started with your guys's legal teams and get their input every step of the way when doing this stuff, is my advice there.

Okay, so as far as the roadmap for today, we are going to be talking legal holds first, and then how legal holds fit into discovery, how they're a little bit distinct from discovery also. And then we're going to talk IG, because this really all comes back to IG, honestly. So to get started, the Electronic Discovery Reference Model from ARMA. You can see it starts with information governance, and that's because well-developed information governance initiatives, especially on the records and information management, or RIM, side, will help make the discovery process go much more smoothly. With this being an ARMA meeting, we know you all have some background in IG and RIM.

And so we decided to flip the order, even though the EDRM model starts with information governance, and really everything flows back into information governance, which is the way that it should work. We're going to flip this and start by providing an introduction to some of these litigation processes. We're focusing heavily on legal holds and discovery because it's where we see opportunities and really a need for RIM to participate. Discovery is the process where parties involved in litigation share information related to the claims asserted. We'll go into more detail about the process and the different steps of the process throughout this presentation.

But while we're talking through some of the mechanics of discovery, I want you guys to be thinking about how IG and RIM interact with and help the litigation processes we discuss. Once we get through this EDRM reference model, we're going to shift and discuss how IG and RIM foundations ease the litigation process.

[Slide: Federal Rules of Civil Procedure 37(e): Failure to Preserve Electronically Stored Information. If ESI that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.]

Okay, so jumping right in. Sorry for all the text on this one, but when you share the Federal Rules of Civil Procedure, you get lots of language going on. And so that's what we have here. Let's start with what a legal hold is. It refers to the process by which an organization seeks to satisfy an obligation to preserve, initially by issuing a communication designed to suspend the normal disposition of information pursuant to a policy or through automated functions of certain systems.

That definition is from The Sedona Conference Commentary on Legal Holds, Second Edition, and we're going to be quoting Sedona a lot today. They're extremely helpful in this realm of legal holds, litigation prep. I highly recommend them as a source of information, and their information is all free, too. So it's great. The term legal hold notice is what we use to refer to the actual communication that initiates the legal hold, but a subset of legal holds are litigation holds. So let's distinguish between the two really quickly.

Litigation holds are part of, in the EDRM model that we just looked at, the identification, collection and, most importantly, preservation steps of discovery. But it's worth mentioning that the broader term, a legal hold, isn't always based on litigation or discovery. Legal holds are broader than litigation holds and may apply in non-litigation circumstances: pre-litigation, for example, government investigations, audits, tax audits, things like that. So the legal hold process has a broader applicability. We could honestly do another webinar or two, and I have actually seen a webinar where Ken Withers from Sedona presented on what to do when the police come knocking with a subpoena, which would be a different type of legal hold, if there's no litigation involved.

But let's stay focused and try to stay on litigation itself. So this slide here. Okay, go ahead. Question. Oh, no, no, I welcome the interruption. Let's talk.

[Another participant: We have a question.] Yeah, it's best to talk about these as they come up. So go ahead.

Speaker: [audience question] Sure. The federal rules: are these US federal rules?

Rick Surber: Yes, and I will talk about that. These are not relevant to everyone. These are really relevant to federal courts, and I'll discuss that. That's a good point.

Speaker: Great. Thank you.

Rick Surber: Yep. So yeah, this is from the Federal Rules of Civil Procedure. It's related to preserving electronically stored information. So it's not technically regulating non-ESI, electronically stored information, but physical records, of course, also need to be diligently preserved in the face of litigation. And I think this provides a great framework. So let's just notice the "preserve" language, followed by the "anticipation or conduct of litigation," and then the "reasonable steps" language. Those are all components that we're going to discuss a little bit more in depth. We're going to talk about this terminology, and we've got slides to cover each of these.

But first, let's talk about the bigger reasons why being aware of this legal stuff is important. Below that hard return there are the sanctions for failing to preserve information that can't be recovered or reproduced. And honestly, these sanctions right here at the federal level aren't as harsh as many of the sanctions at the state level. The consequences used to be harsher at the federal level, even, but this latest edition of 37(e) came out in 2015. And the new language requires that missing information that has caused prejudice, or in other words, hindered one of the parties' argument, for that, the court may order no greater than necessary to cure the prejudice. But if there's intent to deprive, you can see that "intent to deprive" language down there, and then under the second hard return, there may be a presumption the information was unfavorable to the party that deprived it.

So like I said, and like the question gets to, these are the federal rules. It's not relevant to state courts and circuit courts and other courts that the federal rules don't apply to. But honestly, lower courts allow inferences potentially without the intent to deprive. So some of them are even harsher than these federal rules. The intent being, you're intentionally taking that information and hiding it or deleting it or whatever. Think Enron here, or Arthur Andersen, as opposed to producing it so that the other side of the argument can look at it.

And so I guess the point here that I'm trying to get across is that there's a somewhat unpredictable range in potential sanctions, ranging from maybe no sanction for accidental spoliation in some courts to adverse inferences without intent in others. Spoliation, the term I just used: I think that really gets to what Federal Rule of Civil Procedure 37(e) terms lost or destroyed evidence that can't be replaced or reproduced. And so an adverse inference may not sound all that bad, but it can literally win a lawsuit. So essentially, it allows for an inference that the evidence was unfavorable to the party responsible for the loss or destruction, or even worse, that the evidence could prove or disprove a case. So taking this to the extreme, if a party shows that, based on an adverse inference, there's no longer a genuine dispute as to any material fact, they could move for summary judgment and potentially end the case. So this could come down to everything, literally everything that the case is based on.

It could be win or lose, or make or break, based on some of these sanctions.

And so this rule has common law origins, which means that it's evolved through court rulings. It didn't start out as a statutory requirement. This current 37 rule was published in 2015, and it's really based on the infamous 2003 case, Zubulake v. Warburg, which reinforced concepts like the duty to preserve, reasonable anticipation of litigation, litigation holds and ensuring the preservation of relevant documents. And so let's get into the details. We're going to talk about Zubulake later, but let's stay focused and get into the details of what these things are, what reasonable steps are and some of these factors are.

[Slide: Reasonable Anticipation of Suit. Obvious: suit filed, or serious/genuine threat of suit presented. Red flags: internal complaints, rumored actions.]

So, reasonable anticipation of a suit. The obvious events are suits filed, or serious threat of suit is presented. So those are the obvious things, but the not-so-obvious events may not be as easy to identify. They're red flags, really: maybe internal complaints, maybe rumored actions. Sedona guidance is that a reasonable anticipation of litigation arises when an organization is on notice of a credible probability that it will become involved in litigation, seriously contemplating initiating litigation, or when it takes specific actions to commence litigation.

So notice that it doesn't have to be a suit against your company or organization. Once you as an organization are seriously contemplating initiating a suit, the whole process should start there as well. And it goes without saying, there should be no strategic disposition as a first step in preparing. There were several cases back in the early 2000s related to Rambus, where there was this intentional kind of preparing for litigation. Essentially, Rambus had gotten some intellectual property patents for some different processes, and their intent was to go after some people that were violating those patents.

And so as part of this, they said, okay, let's get all of our information in order, and started kind of gathering the information that they wanted to produce and, unfortunately, destroying the information that they didn't want to be seen. Not just normal course of action type stuff. And of course they got into trouble for those actions. But red flags aren't always obvious. The duty to preserve is a fact-specific analysis that goes into the level of knowledge within the organization about the claim and the risk to the organization posed by the claim.

And so I think in this context, it's a good time to discuss Zubulake. Zubulake v. Warburg: it was a discrimination suit by Zubulake against Warburg, where Zubulake had been collecting evidence about discrimination for years, printing off emails, gathering other documentation. It's sometimes referred to as discovery on discovery, because during discovery, Warburg didn't produce all the relevant information that Zubulake already had. So not only are there issues here where there were probably ineffective legal holds, but there were probably issues with inadequate records retention schedule policies and adherence as well.

So, using it as an example to explore red flags: if Zubulake had complained or talked to co-workers about unfair treatment, if credible, that could have in theory been a red flag, which necessitated putting an internal hold on related records. Now, at the very least, any related records to those discussions, like the emails that Zubulake preserved, should have been preserved pursuant to Warburg's records retention schedule. So there were failures on all levels on the Warburg side for preserving this information, and it requires speculation to determine why, but I think that's a good kind of framework to provide when this red flag could be triggering this reasonable anticipation of a suit.

So let's move on and talk about who the target of the hold is, and what to target for the hold, for that matter, and the timing of that. So it should go out immediately once litigation commences or once it can be reasonably anticipated. So once those red flags hit, or the litigation is commenced. So who's going to send it? Usually it's going to be driven by legal, but often it's going to be managed by a team of people, including RIM, IT probably, because they're going to be involved in potentially sequestering information or finding out where these records exist, business line managers, if it's about a business issue, or even if it's not, business line managers could be involved as well. Compliance could be involved, and maybe even security and privacy, to round out all of the key stakeholders in information governance.

Really, everyone may be involved in this type of a thing. Having a process already established to figure out who manages a legal hold is a great conversation that RIM leaders can initiate with legal. And so who do you send it to? Anyone who might possess potentially relevant information. If RIM and IG initiatives have already identified records custodians, for example, these could be a great source in understanding where the information resides and who possesses it.

And so, still discussing the identification components of that EDRM chart that we focused on at the beginning: what's included in the hold? So an effective legal hold communication will clearly and succinctly establish the specific records or information that need to be preserved, using specific things like names, dates, underlying issues of the matter. It should also make clear the legal necessity and include an easy way for custodians to get in touch with the legal team if they have questions. Discoverable information refers to any information that's relevant to the parties' claims and defenses, proportional to the needs of the case. So that's another Sedona quote, and I think a very important RIM role is to know where this information can be located. This is especially true where RIM programs have built out classification standards, inventories, taxonomies, implemented electronic records management software, created metadata rules, all these great things that RIM managers do.

And Jen's going to talk more about this, so I'm not going to spend too much time on it.

[Slide: Federal Rules of Civil Procedure 26(b)(1): Proportionality. Rule 26, Duty to Disclose; General Provisions Governing Discovery, (b) Discovery Scope and Limits, (1) Scope in General: parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.]

And so let's move on and talk about how we determine what information is relevant. This goes to proportionality, and we're back to the Federal Rules of Civil Procedure again here. And I've highlighted some terms there: "relevant," "proportional to the needs of the case." So, proportionality. Parties may obtain discovery regarding any non-privileged matter that's relevant to any party's claim or defense and proportional to the needs of the case.

And so that goes back to those reasonableness steps in 37(e). But the advisory committee for 37(e) noted in commentary to the 2015 amendment that, due to the ever-increasing volume of electronically stored information and the multitude of devices that generate such information, perfection in preserving all relevant electronically stored information is impossible. And so the rules recognize that reasonable steps to preserve is what's required. They do not call for perfection. So those are the advisory committee's quotes to that 37(e) rule.

Considering the importance of the issues at stake in the action, the amount in controversy, the parties' access to the relevant information, the parties' resources, the importance of the discovery in resolving the issue, and whether the burden or expense of the proposed discovery outweighs the likely benefit: these are all things to consider. And to give a little context and to throw some stats out, the average company has over 247 terabytes of information. That number's from 2016, so it's surely doubled or tripled since then. But that's over 1 billion 200-page books. So it's a huge amount of information that needs to be waded through to find the relevant stuff. And so how do we do it?

The Sedona Conference again has some principles of proportionality that are useful with this analysis. Discovery Principle 2 is that discovery should focus on the needs of the case and generally be obtained from the most convenient, least burdensome and least expensive sources. Principle 3: undue burden, expense or delay resulting from a party's action or inaction should be weighed against that party. And so I think that includes unreasonable requests from parties to produce too much information that's not specific enough or that's too broad.

Now, one item that I want to bring up that is kind of revolutionizing this proportionality discussion is technology-assisted review, or TAR. I'm not going to go into detail on this because it could have its own webinar, but it's having a major impact on proportionality. It's still expensive enough that not all parties to suits have access to it, but we had a Virtual Coffee guest last week on a webinar that we were presenting on, Maura Grossman, and she noted that the AI fueling TAR is more accurate than lawyers in identifying relevant records. And so these automated processes that can cull through vast amounts of information and really find the records that are determinative and relevant are replacing people. And Maura actually noted that if she were to have the choice between having a team of lawyers and having some of the AI, the most advanced AI that she has seen, be the ones going through and doing this effort, she would pick the AI, which is, I think, scary, but powerful.

And so if and when this type of thing becomes more widely available, to the extent that it's not regulated or something like that, it's going to lead to even more discovery of relevant information that would have otherwise been really difficult to find. So I just wanted to give a shout-out here: be on the lookout. One of our researchers is writing a blog that's going to explore this topic in more detail, TAR. And so that should be coming out in the next few weeks. But be careful about this.

It doesn't change the rules when it comes to protecting privileged, confidential or even private information or trade secrets. And so requests to just produce information that can then be gone through using maybe an opponent's TAR technology should be avoided based on those concerns.

Janet Dotson: Rick, this is Janet. How much are things like WhatsApps and Snapchats and those kinds of messenger things being pulled into litigation these days?

Rick Surber: They absolutely get pulled in if there's potentially relevant information in those messaging services. And I think Jen's got a couple examples of parties getting in trouble for not including those when they should have. And to the extent that our policies and our auditing from a RIM perspective try to prevent the use of those for official communications or official records, there might be some mitigation on that side of things, but yeah, it's a really hard thing to control. And so those are getting pulled into litigation, absolutely. And it's creating even more data, of course.

Speaker: Wouldn't that be, if those records are still there? Especially with WhatsApp, because they're like the ephemeral messages that can disappear. What will be the implications for those?

Rick Surber: Right, if they're even there. That's a good point. If there's any kind of use of those ephemeral messaging type services intentionally, to try to delete records and information that could potentially be relevant to suits or pending litigation, or even to hide the ball on things that are contemplated well into the future, I think those are things that are punishable, potentially, and subject to these different sanctions that we've already discussed. Yeah. Yeah, it can't be used as a way to cause spoliation, essentially.

So, determining exactly what constitutes responsive records and information is where RIM professionals, I think, come in.

[Slide: How to Preserve Information: Notice (in writing, identify the reason for the hold, prohibit the destruction of relevant documents, and identify what sort of information is considered relevant); Reminders; Custodian Interviews; Full disk imaging.]

Where it may be tempting to declare a complete moratorium on records disposition of any kind, that might not be feasible in large, multifaceted organizations, and it's probably not something that you ever really want to do. And so I do feel like RIM managers can help cut through the complexity and narrow the scope of the legal hold and what's truly relevant and responsive to the legal hold. And I think RIM can assist in the preservation process in several ways. It can stop the disposition process for potentially relevant records, especially where there's automated disposition that's happening; managing information that's gathered (RIM is an expert on managing information); and assisting with imaging, potentially. But essentially, Guideline 6 of the Sedona rules: fulfilling the duty to preserve involves reasonable good faith efforts taken as soon as practicable and applied proportionately to identify persons likely to have information relevant to claims and defenses, and to notify them and assist in preserving the information. And so this lists some things to do. The notice, that's crucial, but it's probably not enough. You probably need reminders, other things. How are you going to make sure that custodians comply with these legal holds? And RIM could be directly involved in some of this stuff.

So minimum efforts are maybe tracking acknowledgments of the hold, reminding custodians of obligations, having a plan to deal with unresponsive custodians. And for highly relevant custodians, maybe it does mean copying over some just full files that could be relevant. I don't know that we would go to full disk imaging, but there's some debate on Sedona about whether that should just be done.

[Slide: Processing, Review & Analysis: discovery statistics and costs, including "60% Legal Fees" and "Ratio of pages discovered to pages entered as exhibits in litigation is as high as 1000/1."]

So we spent a lot of time on the legal hold part of it, the litigation hold part of it and the information part of it, but let's do a little bit on the processing, review and analysis of it. So 60%... Yep, go ahead.

Speaker: [audience question] Sorry, you have a question here: what guidance requirements exist in terms of reminders? Have you seen a big, have you seen a huge gap?

Rick Surber: No. Sedona has some great templates that you can use for all of these different phases. And so I'm not positive that it goes to the detail of the language to be used in reminders, but I wouldn't be surprised if it was covered by some of those materials.

Speaker: Okay, thank you.

Rick Surber: Yeah, absolutely. So 60% of fees and expenses in litigation are attributable to discovery. And then on the top right, only a fraction of the preserved data is actually collected. So on average, slightly half of all preserved data is ever collected, and I'll include these sources that I've got for these within the PowerPoint that I present to you guys. The bottom left: almost two-thirds of medium to large-sized businesses have more than 25 legal and regulatory matters per year. So there's a lot of the kind of "this won't happen to me" attitude, but eventually it will. And when it does, you definitely want to be prepared, because if you're not prepared, that's when things start to hurt.

And then the bottom right: the ratio of pages discovered to pages entered in exhibits in litigation is as high as 1,000 to one. And so that really goes back to RIM. I think if you have doc review, and attorneys being the ones that are culling this information of pages discovered to pages entered in exhibits, and they're the sole parties that are doing it, I think that gets you right back up to that upper left-hand box of 60% of legal fees. I mean, that's expensive, expensive work. And so if RIM can assist with the process of culling the information once it's already been collected, to making sure that irrelevant information or ROT or things like that aren't involved in what's collected, it's going to create a huge savings, in addition to the huge savings that just not having all that information will also provide, which, that's Jen's topic. So I won't steal any of her thunder there.

[Slide: Rule 34. Producing Documents, Electronically Stored Information: (b) Procedure, (2) Responses and Objections, (E) Producing the Documents or ESI. Unless otherwise stipulated or ordered by the court: (i) a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) if a request does not specify a form for producing ESI, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) a party need not produce the same ESI in more than one form.]

So, what's going to be produced: exchanging information and presenting of information. And so this rule here provides the 30... This is back to the Rules of Civil Procedure. Again, these are going to be different from court to court, but I think most courts have similar requirements to this. Maybe not the exact number of days, but I think this is a good example.

So 30 days after being served with a discovery request, or after meeting. Most courts will require a discovery planning conference, which is a great way to discuss the types of documents expected to be relevant to the claim, set expectations, communicate, collaborate, get on the same page. So either 30 days after the request, or, if the request comes before the discovery planning conference, 30 days after that. So it's a short amount of time that you guys have to deal with these requests. There's, of course, a process for objections to requests.

Responses must state whether responsive materials are being withheld and the basis for those objections. But I think the juiciness here is the request to produce information and overbroad requests, specifically the specificity and exactness is really the key element here, and I've got an example: Caves v. Beechcraft, which was a case back from 2016, where the request was documentation seeking any and all records or testimony containing any other litigation that the party had been involved in prior to this current case that they were involved in. And so it wasn't even specific to the claim or the facts relevant. It was just like any and all information of any previous claims.

And courts get kind of upset about things like that. I think the court said that it's not their job to redraft their motions to be specific, and that requests that don't identify with reasonable particularity will not pass muster. And so that request was thrown out.

Okay, so we've gone through this whole EDRM model here at this point, discussed, to a greater extent for some than others, based on the RIM implications, really, the different components of each. And now, having walked through everything and explored some of the nuggets about how IG greases the wheels of the discovery process, I'm going to turn it over to Jen to talk about IG and RIM and the processes in IG and RIM that help the most. But first, before I do that, I want to read this commentary from, and you guessed it, The Sedona Conference, because I think it wraps this up really nicely. Steps that can be taken by each party to meet its preservation obligations where proportional include: (i) in advance of litigation, having reasonable policies addressing legal preservation obligations that may arise; (ii) identification of relevant custodians with knowledge of matters in the dispute; (iii) discussion with custodians and other appropriate personnel to identify sources of unique information relevant to the matter, including non-custodial sources; and then suspension of information and retention policies that would otherwise result in routine deletion of unique relevant information. And so I love that this information that's being put out by Sedona on litigation preparedness is literally addressing several of the things that are fundamental RIM components, and I think it ties us back into the need for good IG.

And so, as promised, let's transition to discussing how a robust IG program leads to better litigation preparedness.

Jennifer Chadband: Great. Thanks, Rick. So, sorry to kind of bury the lead here for y'all, but I think it really did make sense, with all of us really kind of being within the industry, RIM professionals. Rick kind of walked us through litigation, these relevant processes, and all the while, I hope you all were thinking about how does this really kind of tie into what we do. I'm sure everybody has varying experience, and I'm sure your programs are at various levels of maturity.

But what I want to do here is really kind of talk about how important IG is for kind of setting that foundation for litigation preparedness, and how it really is a foundational instrument in kind of implementing these processes: the legal holds, discovery, once that litigation commences. So I think there's really several good reasons why information governance is the first step. It's very reasonable here for the EDRM model. The first being that your information governance program, you can really kind of build off of it, or you build it to incorporate some of these factors. It should really be about leveraging the infrastructure that you have. And this includes the policies, people, the team strategies, all this technology, your cross-functional RIM teams that you've already built. These are really imperative for implementing these different initiatives. Also, keeping enterprise data managed and organized really makes it much easier and efficient when decisions have to be made due to investigations, litigation, claims and other events. And ideally, an organization should be able to achieve litigation readiness through a robust and well-thought-out and properly implemented IG program.

So let me walk you through some of these kind of key components, and this is kind of the intent through my next slides. I don't want to get too much into the weeds, because I know we're all fairly familiar with some of these. So I want to touch on a high level and kind of bring it back. I'll bring it back to IG.

So here's kind of a pivoting again here. I always love these different views of the information that our organizations have, a data breakdown: 16% business critical, like that's the meat, right? 30% ROT, redundant, obsolete, trivial records that really don't have any ongoing value, and they should be taken care of on a regular basis. And then 54% is this dark data, which, I've actually seen some statistics even more recently. This one's from 2016, but I think a recent Carnegie Institute study I saw suggests actually like 90% of the information that organizations are managing would be considered dark data. That's crazy.

And it's problematic from a litigation preparedness standpoint, because this is all the more information that you have to go through. It is looking for the proverbial needle in the haystack if you really aren't managing all this information appropriately. So I think the idea is, fundamentally, instead of just simply storing data, a good IG program will allow the organization to store information in a meaningful way. And this is also in a way that really anticipates the future legal needs. And so this approach really is better than the alternative, which is searching for all this information, searching for that needle in the haystack.

Instead, what we're doing is we're kind of creating this roadmap that will allow us to more efficiently, easily find that information. We'll go to our next slide.

And the crux of litigation preparedness and successful, defensible litigation, as well as a records and information management program and IG, it really does kind of come down to defensible disposition. There's a lot here that they both have in common. And so, defensible disposition: the concept being that your organization is able to identify this information that's no longer needed for a valid reason. So that means that anything that's being destroyed is built on a solid understanding of the regulatory, statutory, business, litigation considerations, anything in that realm that's really applicable to the information at issue. And it has to be kind of a consistent process. This has to take into consideration different types of repositories, where's that information at. It has to be thoughtful.

And also, I think, and this kind of ties us back to IG especially, it secures the input and buy-in from all the appropriate stakeholders before executing disposition. And I think this is a reoccurring theme that we will touch on here throughout these various aspects as well. So really, overall, successful defensible disposition increases the efficiency and defensibility of your litigation response, and it significantly reduces the overall costs of discovery. We'll go to our next slide.

[Slide: RM & Litigation: the eight Generally Accepted Recordkeeping Principles: 1 Accountability, 2 Transparency, 3 Integrity, 4 Protection, 5 Compliance, 6 Availability, 7 Retention, 8 Disposition.]

And so this may look familiar to everybody. This is our trusty old GARP principles, or Generally Accepted Recordkeeping Principles. And I don't want to go through each of these in detail, but I think just visually scanning this, you can definitely see how a lot of these different aspects are so important when it comes to litigation preparedness, litigation discovery. Here, the principle of integrity: making sure that your information assets have reasonable guarantee of authenticity and reliability. That's super important for evidentiary considerations in the discovery process. Thinking about availability: making sure that you can retrieve this information in an accurate way, in a timely manner. And of course, retention and disposition.

From a records management program perspective, this is what we live and breathe. So definitely, I think you can see how these tie into these important aspects that we're talking about with regard to litigation. And then, of course, next slide.

We have our wonderful IG reference model. And I don't know why, but this diagram always makes me really cheery. I like it. I think that it captures what I think is so kind of three-dimensional about IG, and the colors and everything like that. Looking at the center, we see kind of the lifecycle management aspect, kind of tying back to that records management aspect, managing records from creation to disposition, that being in the center because IG really flows through all of that. And of course, we have, kind of jumping over to the middle, this unified governance, and that's really kind of important as well. And we'll touch on this in a couple different ways, but it's really kind of creating those interoperable kind of processes between the different areas, which are so important for being able to successfully implement.

And then finally, the kind of meat of it here in the middle again is our stakeholders, and you'll see here, at the higher level for IG, we're looking at business, and it's so important that primary stakeholders really kind of are the businesses. They're the ones that are kind of imbuing that value for the records. They understand what these records need to be kept for, how long. And then also important here is, of course, legal, and they're kind of also assigning different legal values, whether it's recordkeeping requirements, whether maybe there's audit risk, ongoing liabilities risks. And so that's really kind of an important aspect as well.

Of course, RIM is here. And then, finally, some of these others: privacy, security, IT, who is really pivotal in being able to kind of implement a lot of these processes as well.

And we'll go to our next slide, and I want to focus on this stakeholder aspect in the context of litigation and legal holds, discovery. And the focus really kind of does come back to our RIM teams and legal. Again, emphasizing this, the great thing is that we can leverage the RIM team, and by directly engaging with RIM in the legal holds and discovery process, the organization can really draw on all of these existing controls to locate these responsive records, and that's kind of regardless of the format or location or whatnot. And then there's also this oversight for disposition, which is really important: the RIM team's kind of direct oversight on that. They can just kind of make sure, boots on the ground, that any in-process or pending records disposition activity is provided for any upcoming legal proceedings. They can be on the front end, making sure that there's no unintentional or even intentional destruction of records and information that may need to be preserved.

And so really, ultimately, this kind of collaboration really helps to ensure that legal counsel has the evidence that they need to either defend or pursue a case for the organization, and kind of avoid some of those really kind of potentially detrimental sanctions and obstruction of justice charges, etc. So legal is definitely an important stakeholder companion here, and we'll see how legal... We'll go to our next slide. I mean, it's really interwoven through a lot of these components of our program, right? So our records management policy, super important, provides our organizational mandate and the overall direction for the records creation, retention, handling and disposal.

And in a discovery situation, that policy is really a key to an effective legal defense. It's providing that direct evidence of your organization's best efforts to kind of manage all of that information in line with best practices. And so the policy should always be developed in conjunction with legal. There should be a sign-off there. And some important things to think about in that policy: I'm always surprised, we do a lot of kind of work with clients on developing or reviewing their policy, I'm always surprised how records aren't defined in some policies. I think that's important, because how can your end users really know what is a record? If there's not a definition set forth, they won't know if they're inadvertently destroying something during the course of the legal hold or litigation if they really don't know what a record is. So that kind of seems like a kind of a basic concept, but we do see that that's not always included. Also legal holds, that's something important to at least touch on at a higher level. I know that there can be some more granular legal hold policies or processes that might stem from that as well, but typically we will see something like that addressed within the policy. And of course, as I mentioned, this is something to make sure we have legal sign-off on.

And then the next component, I won't get into this too much: the records retention schedule. It's really the keystone, or cornerstone, I should say, of the solid IG program. It supports the maintenance of our records from creation through disposition. It's an important component for achieving compliance, but it also really helps us control costs and ensures the information is available when it's needed, regardless of where it's located. And so, I think, from a litigation perspective, the retention schedule really is a reflection of the business records and their business and operational value, as well as those legal justifications. And so this really, again, is something, when properly managed and implemented, these really help demonstrate compliance in reinforcing that defensible disposition and your litigation responses.

And we'll go to the next item here. Of course, the legal requirements: across your business functions, across the jurisdictions, there's definitely a legal involvement that's required here, really understanding kind of what the different statutory, regulatory requirements are that might be relevant to the business. This would be reflected potentially in the policy, as well as the records retention schedule, whether that's the recordkeeping requirements, and even what we term handling requirements: this jurisdiction says we have to have a wet signature, this jurisdiction says we cannot have electronic format. And then there's, separate from that, really kind of the more evidentiary rules that may vary from jurisdiction to jurisdiction, kind of highlight some of those federal; the states have their own rules, and of course, internationally, international jurisdictions have those other rules as well. So these legal requirements are really interwoven through these different components, and it's really important to have legal involvement as part of that.

[Slide: Implementation: Training; Procedures & Processes; Auditing & Metrics; DR Distributors, LLC v. 21 Century Smoking, Inc.]

So let's go to some juicy details. First, it's implementation. Obviously, that's really important, and I'm not going to get into too much detail here, but the success, defensibility really rests on making sure that everything's kind of properly implemented. So that's training, making sure that there's detailed procedures and business processes that are being successfully implemented, the auditing and metrics components. And let's talk about this case: DR Distributors, LLC versus 21st, or 21, Century Smoking. This is actually a fairly recent case. I think this was last year. And so in this case, there was anticipation of litigation, and there essentially was no proper, formal, written legal hold that was issued.

It kind of fell through the cracks. The supervising attorney really did not kind of adequately issue that, nor did that attorney kind of oversee the organization's kind of self-collection effort. So you see kind of a breakdown. This is thinking about our outer circle on our IG, this unified governance: if you don't have it, you're not going to have this cohesiveness or collaboration between the different stakeholders. And so definitely here, there was an issue in this communication. Ultimately, what happened, and this goes back to a question that we had earlier, is that the defendants were managing all their emails, and they had this auto-delete function on it.

And so periodically, even though the hold had been issued, had not been issued, or litigation had even commenced, they had this auto-delete function going on, and it was deleting emails, deleting emails. Talking about modern technology, and going even to ephemeral messaging, that's kind of a big thing to be aware of. And it's about catching up, for, I think, some of these attorneys, understanding how records are being generated and managed, and they're not always the most knowledgeable. And it was a big deal. The judge issued this scathing, like, 256-page opinion, asked the attorney to basically go to CLEs on electronically stored information, and basically said this isn't, this isn't amateur hour, quote unquote. And basically, there were severe sanctions, and said ESI here, electronic discovery, is no longer best practices. These are rules. This is the law. Like, attorneys, you need to get with it.

So I thought this was a really good modern case, kind of illustrating why that's so important.

And we'll go to the next one. I'm not going to get into too much detail here, but data maps: how can you manage your information if you don't know where it is, who's keeping it, where to retrieve it? You can't retrieve it if you don't know where it is. And so that's where data maps really come in handy here. And there's all these different considerations as well, classification systems. And I'm running a bit short on time, so I don't want to kind of belabor this, but finding and retrieving that information is also very important. And we'll go to our next slide here.

Yeah, so Federal Rule of Civil Procedure 34: parties are required to produce the documents as they are kept in the usual course of business, or they must label them to correspond to the categories. Here's another great case: Charter Communications versus Optymyze. The plaintiff requested the production of relevant chat messages that the defendant's employees had exchanged in Microsoft Teams. Well, in response, the defendant turned over the relevant messages, but when they produced it, they actually produced each message in a separate individual document, kind of in an email format, and that was 87,000 separate email messages, all captured separately. There was no context. They were not captured as you would have seen them in, like, their native format. Basically, these aren't conversations. These are all individual emails. There's no context for these conversations.

And so, as you can imagine, the plaintiff wasn't too happy with that and demanded that they be reproduced in native format. And so I think there's definitely a lesson learned there, and how we are kind of capturing this information and keeping it is an important consideration as well for that litigation preparedness and being able to produce that information when it's needed. And let's go to our next slide.

Okay, so finally, records disposition. Here's where it all comes down to. This is the formally documented process for all these records that have really met the end of their records retention period. It's a process to determine where they can be destroyed, deleted, transferred where needed. And so from a discovery standpoint, a formal disposition process really needs to meet two basic needs.

Have to be preserving the evidence that you're required to produce, and it also will demonstrate the organization's commitment to meeting all the legal requirements for the disposition of these records. And that's really kind of important there. And I think a final thing to kind of note here is this accountability aspect overall. I think that it's really not that unusual for an organization's RIM manager to testify or give a deposition explaining the controls that were applied to ensure the records were maintained and disposed of in a legally compliant manner. It does happen.

So remember that the goal of the records retention and disposition processes are to really ensure that your records are kept for a reasonable amount of time and then disposed of in a way that can be legally defended, should that activity ever be questioned. And so for a RIM professional, this really does mean that the core elements of your program are really kind of serving as direct evidence of your organization's attempt to comply with all legal requirements. So I think, as a final takeaway, it's just really crucial as RIM professionals that we're ready to kind of produce and defend several of these key program elements that we've discussed. So yeah, it's right at time. And so, sorry to rush through these last few slides, but I just wanted to make sure I didn't go over.

Speaker: We appreciate that. Jen, one of the things that us in the records management IG side of it struggle with is that we have all these preservation notices out there. And we struggle with, okay, we know that it's there, but then how can we also get rid of the stuff that is the ROT, some of the things that are out there? How can we do clear-out days? How can we clear out the clutter so it doesn't get caught up in other things down the road? We'll make sure everybody knows what they need to do on the ones that are sitting out there. But any thoughts on how to help us out?

Jennifer Chadband: Yeah, I think that's difficult. Obviously, that's part of the reason planning ahead is always easier, if you can. But I think what's important is the legal holds that are issued really need to be as precise as possible. And I think as you go through and you're identifying these records that need to be preserved, I think documenting that process in as reasonable a manner as possible, you're really kind of targeting these different areas that you have knowledge of. Obviously, I think I would err on the side of not disposing of anything if there's even a chance that it may relate to it. But I think that there is kind of, outside of that gray area, there is the opportunity to identify that ROT, as long as the legal hold notice is really kind of drafted pretty precisely and you are able to get a pretty good handle on what you are looking at.

Rick Surber: And building on that, give your users the confidence that they're destroying information that they should be destroying. Conduct trainings, give examples. Do as many activities and workshops as you possibly can that kind of demonstrate the correct way to dispose of records and highlight the incorrect way, so that users have confidence that what they're destroying is appropriate.

Speaker: Thank you for that. [audience question] I have a question that was sent to us when we were doing the registration in the Madison chapter, and somebody asked, and I don't know if this will be, I think they're looking probably for an overall what to do as you do your implementation. It's like, when is a good time to review legal holds: annually, quarterly? And I'm assuming they're not talking about your legal holds when they are there. I'm assuming "when do you review your policies and procedures" is what I'm assuming they're talking about.

Speaker: I think at least annually. And I think that's a good time for legal and RIM and the other stakeholders to come together and just make sure everyone is on the same page about roles and what the policy itself says. But yeah, I would think annually would be ideal. [Another participant: I would say that's kind of in line with what we see in best practice.]

Speaker: That's awesome. Great. Any last questions? We really appreciate this wonderful, wonderful information and overview. It's been really great.

Speaker: Yeah, thanks for having us. We enjoyed this. This was great.

Speaker: Yeah, I see a lot of "Zasio rocks" in the chat.

Speaker: This has been a very great presentation. I took about three pages of notes, because I'm preparing things for April, Records and Information Management Month, and what we're going to do in my own agency, and trying to see what we're going to put together. We're going to be doing something with our legal counsel, and I don't know how many of you have seen [inaudible], from way back there, like in the eighties, but it has all these, about a particular case, and everything you guys say here just fits in. So thank you so much. It was a great presentation, and thank you, Janet, that we were able to put it together.

Speaker: I agree. It was a pleasure working with everyone as well. [Another participant: Wonderful.]