Digital documents & e-discovery

Digital law and governance
e-discovery
Jacques
Folon
www.folon.com
Partner
Edge
Consulting
Maître
de
conférences
Université
de
Liège
Chargé
de
cours
ICHEC
Brussels
Management
School
Professeur
invité
Université
de
Lorraine
(Metz)
ESC
Rennes
http://www.nyls.edu/institute_for_information_law_and_policy/conferences/visualizing_law_in_the_digital_age/

1.where are we now ?
2.Need of an electronic content
management
3.E-discovery
4.Sedona Principles
3

Which information ?
• Electronically stored information (ESI)
• Scannes documents
• Fax
• Texts, excel sheets, powerpoint (word, pages,
including old versions of the software versions)
• Emails in & out
• Databases, websites, blogs,…
• Hard disks (central, local, pc, external, USB
sticks, …)
• CRM, CMS
• GSM et PDA
• Time sheet
• Acounting
• Intant messaging
• Voice mail
• GPS navigation systems
• Metadata
• social networks (internbal & external)
• … 8

9
Increase of data from 2010 ->2014 = + 650% (Gartner)
85% of the data are not structured
80% of data search gave no result

2. Prerequisite:
Electronic data management
10

Source : https://www.britestream.com/difference.html.

The importance of records
• Most of today’s
records start out
in electronic form
– Letters
– Emails
– Faxes
– Web transactions
– Other transactions
Source: What is ERM www.aiim.org/training
Copyright © AIIM | All rights reserved

Electronic records management
Question: Is ERM
• The electronic management of paper
records?
• The management of electronic records?
Answer: Both

Content types and how well managed
For each type of content, evaluate the degree of control that exists in your
organization in managing it.
All respondents (462)

What are the main business drivers?
Effectiveness
ERM
Efficiency
Continuity
Compliance
Copyright © AIIM | All Srigohtus rrecseerv:e dWhat is ERM www.aiim.org/training

Driver: Compliance
• Laws
• Regulations
• Policies
• Standards
• Good practice
Copyright © AIIM | AllS rioghutsr crees:e rWvedhat is ERM www.aiim.org/training

Driver: Effectiveness
• Not losing records
• Sharing records
• Finding records easily
• Getting the complete picture

Driver: Efficiency
• Accessing records quickly
• Space savings
• Reduced handling costs
• Other examples
– Archival costs
– Disposal of furniture
– Consumables

Driver: Continuity
• Records are vulnerable to loss
• Businesses tend to fail if they
lose their records
• Electronic storage may
speed recovery from
a disaster

The records lifecycle
Source: NARA
Copyright © AIIM | All rights reserved

Fundamental principles
• Records are created, received,
and used in the conduct of
organisational activities
• Organisations should create
and maintain authentic,
reliable, and usable records

Access and usage principles
• Records should be accessible to authorised
users
• Users should be able to
search and access records
in usable formats
• Records should be organised
to support access and
management

Retention principles
• Records must be managed through their
lifecycle
• Records should be kept as long as required
– Statutory requirements
– Legal requirements
– Business or operational needs
• Retaining records longer than required may
increase organisational liability

Disposition principles
• Disposition is an accepted phase of the
records lifecycle
– Transfer/accession
– Destruction
• Records should be
disposed of at the
end of the lifecycle

What is ‘Capture’
ERM System
Capture
Copyright © AIIM | ASll origuhtrsc rees:e rvWedhat is ERM www.aiim.org/training

The purpose of capturing records
▪Establish a relationship between the record
and its context
▪Place the record into a controlled
environment
▪Link the record to other related records
▪Allow the record to be managed effectively
Copyright © AIIM | ASll origuhtrsc rees:e rvWedhat is ERM www.aiim.org/training

Why not capture everything?
• Hard cost of storage
• Volume of non-records to sift through
– Operationally
– For legal or audit requirements
• Increased liability for
disclosing too much

So, what is metadata?
• Metadata = “Data about data”
– For a document or record this means data such
as its author, its title, the issue date, and other
information which can usefully be associated
with it
• Nothing new or unique
• Defined in terms of units called “Elements”
or “Fields.”
– Some support “sub-elements” or “attributes”

Perspectives on metadata
• Entering metadata is often called “indexing”
• Different users of an ERM system will have
different views of what metadata can do for
them, and what metadata is required
– Business perspective
– Records management perspective
– User perspective

Why is access control necessary?
• Ensure ‘systematic control’ and ‘credible
evidence’
• Ensure authoritative records
• Protect commercially sensitive information
• Protect personal
information
• Limit access to protectively
marked information
Copyright © AIIM | ASll origuhrtsc ree:s eWrvehdat is ERM www.aiim.org/training

The objects of user access rights
• Provide or limit access to specific
classes,
files or records
• Provide or limit access to features
• Provide or limit access by security
classification
– ‘Need to know’
Copyright © AIIM | ASll origuhrtsc ree:s eWrvehdat is ERM www.aiim.org/training

Retention periods - 1
• Capturing a record implies need for
retention
• A record may be retained in different ways
– ERM system
– Software application
– Separate electronic media
– Paper

Retention periods - 2
• Records will vary in their intrinsic nature
• Some records may need to be retained for
very long periods of time
• Other records will need to be
retained for shorter periods

The benefits of destroying records
• Keeping everything forever is expensive
– Storage costs
– Search and retrieval
– Discovery
• Courts have held that there is no
requirement to keep everything forever
• Destroying records reduces risk
– When it is done consistently and in accordance
with the records program

3. After ERM => ediscovery
36

Definition & context
• E-dicovery is a process to search, localise,
secure, identify a data in order to have it
as an evidence before the court
• Necessity to have a quick result
• the right data at the right time
• translation sometimes necessary
Source www.systran.fr 37

Ediscovery model
38
Source for the next 9 slides: http://edrm.net

4/ collection
Collection is the acquisition of potentially relevant electronically stored information
(ESI) as defined in the identification phase of the electronic discovery process. The
exigencies of litigation, governmental inquiries, and internal investigations generally
require that ESI and its associated metadata should be collected in a manner that is
legally defensible, proportionate, efficient, auditable, and targeted.
42

GSA IT Quarterly Forum --
Aug 2007
48
4/ The Sedona Principles:
Best Practices Recommendations & Principles for Addressing Electronic Document
Production
(Second edition, June 2007)
The Sedona Guidelines:
Best Practices Guidelines & Commentary for Managing Information and Records in the
Electronic Age
(Sept. 2005)

49
The Sedona Guidelines
– Second work product of working group
– Draft published in September 2004 for public comment; published
in September 2005.
– They are:
• Important background and roadmap of issues
• Link between RIM, IT and Legal Perspectives
• Flexible, Scalable and Reasonable
– They are not:
• Standards or minimum requirements
• Unchangeable

50
• 1. An organization should have reasonable policies and
procedures for managing its information and records.

• 2. An organization’s information and records management
policies and procedures should be realistic, practical and
tailored to the circumstances of the organization.
51

52
• 3. An organization need not retain all electronic
information ever generated or received.

• 4. An organization adopting an information and records
management policy should consider including procedures
that address the creation, identification, retention, retrieval
and ultimate disposition or destruction of information and
records.
53

• 5. An organization’s policies and procedures must mandate
the suspension of ordinary destruction practices and
procedures as necessary to comply with preservation
obligations related to actual or reasonably anticipated
litigation, governmental investigation or audit.
54

Jacques Folon
Jacques.folon@ichec.be

Digital documents & e-discovery

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