ITS833 Cumberlands Information Governance and Legal Functions Discussion Chapter Eight (8): Information Governance and Legal Functions: According to the au

ITS833 Cumberlands Information Governance and Legal Functions Discussion Chapter Eight (8): Information Governance and Legal Functions: According to the authors, Smallwood, Kahn, and Murphy, IG is perhaps one of the functional areas that impact legal functions most. Failure to meet them could be literally put an organization out of business or land executives in prison. Privacy, security, records management, information technology (IT), and business management functions are very important. However, the most significant aspect of all of these functions relates to legality and regulatory compliance from a critical perspective. Q1: When we take a close look at the author’s point of view, under the Federal Rules of Civil Procedures (FRCP) amendments dating back to 1938 there has been governance and the discovery of evidence in lawsuits and other civil cases. Please name and briefly discuss the three (3) reasons why corporations must proactively manage the e-discovery process?Chapter Nine (9): Information Governance (IG) and Records and Information Management Functions. From the Chapter, we have learned from that Records Management (RM) is a key impact area of IG – so much that in the RM space, IG is often thought of as synonymous with or a single superset of RM. From that perspective, the International Organization for Standardization (ISO) defined business records as “information created, received, and maintained as evidence and information by an organization or person, in pursuance of legal obligations or in the transaction in the form of records.” Q1: To further enhance our knowledge and understanding of RM, ISO provided a more refined definition of RM to a granular level as “[the] field of management responsible for the efficient and systematic control of what…? Identify and complete the missing phrase to directly complete the granular definition? ITS 833 – INFORMATION
GOVERNANCE
Chapter 8
IG and Legal Functions
Dr. Geanie Asante
Copyright@Geanie Asante 2019
1
CHAPTER GOALS AND
OBJECTIVES
?
What is the key functional
area for IG impact?
?
How does IG impact legal
functions in an organization?
?
What are the Federal Rules
of Civil Procedure (FRCP)?
?
How is e-discovery affected
by the FRCP?
Copyright@Geanie Asante 2019
?
Outline the holding of Zubulake v.
UBS
?
?
Know the facts and how it affects IG
and e-discovery
What are currently e-discovery
techniques
2
CHAPTER GOALS AND
OBJECTIVES…Continued
?
What is the e-discovery
reference model?
?
What is it used for?
?
How does IG impact EDiscovery?
?
What is a record retention
policy?
?
What are the benefits of a
record retention policy?
Copyright@Geanie Asante 2019
?
What is predictive coding
?
What case law impacted the use of
predictive coding?
?
What is Technology Assisted Review
?
What are the 8 steps to defensible
disposition of information?
3
Key Legal Processes Impacted
by IG
?
E-Discovery
?
Legal Hold Notification
?
Defensible Disposition
?
Use of new technology to comply with E-discovery
Copyright@Geanie Asante 2019
4
E-DISCOVERY
“Discovery”:
Pretrial procedure in a lawsuit in
which each party, through the law of
civil procedure, can obtain evidence
from the other party or parties by
means of discovery devices such as a
request for answers to Interrogatories,
Requests for Production of Documents,
Request
for
Admissions
and
depositions. Discovery can be obtained
from non-parties using subpoenas.
When a discovery request is objected
to, the requesting party may seek the
assistance of the court by filing
a motion to compel discovery.
The
Federal
Rules
of
Civil
Procedure govern civil proceedings in
the United States district courts. Their
purpose is “to secure the just, speedy,
and inexpensive determination of every
action and proceeding.” Fed. R. Civ. P. 1.
The rules were first adopted by order of
the Supreme Court on December 20,
1937, transmitted to Congress on
January
3,
1938,
and
effective
September 16, 1938.
http://www.uscourts.gov/rules-policies/current-rulespractice-procedure/federal-rules-civil-procedure
Wikipedia https://en.wikipedia.org/wiki/Discovery_(law)
Copyright@Geanie Asante 2019
5
RELEVANT 2006 CHANGES TO THE
RULES OF CIVIL PROCEDURE
?
Revisions applicable to
preservation of electronic records in
the litigation process
?
Revisions applicable to the discovery
of electronic records in the litigation
process
Copyright@Geanie Asante 2019
Applicable to “ESI”- Any information that is
created or stored in electronic form
GOAL of 2006 revision:
?
Recognize importance of ESI
?
Respond to increasingly prohibitive costs
of document reviews
?
Protection of privileged information
6
FRCP AMENDED 2006 ARE
APPLICABLE TO WHAT?
?
?
?
?
Cases in Federal Court
Civil Cases
All types of e-documents stored on all types of storage
devices and communication devices
All content on those devices including metadata
Copyright@Geanie Asante 2019
7
Consider the Impact of “Big Data”
?
The average Employee creates roughly 1 gig of data annually (and
growing)
?
Costs associated with “dark data”
?
Unknown or useless data
?
Identify which data is important and relevant and classify, prioritize, and
schedule the systematic disposition of other data in a legally defensible
way
?
Statistics: Approximately 25 % has real business value. 5 % required to be
retained as business records. 1% retained due to litigation hold.—On the
average 69% has no business, legal or regulatory value, and could be a
legal liability to the company
Copyright@Geanie Asante 2019
8
REVISED FEDERAL RULES OF CIVIL
PROCEDURE
FRCP 1 – Scope and Purpose: To secure the just, speedy, and
inexpensive determination of every action.
(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-fordummies-cheat-sheet.html(accessed January 20, 2018)
How does this involve IG
?
?
IG must make sure information is organized in a way that it
can be accessed quickly
Copyright@Geanie Asante 2019
9
FRCP 1
Rule 1. Scope and Purpose
These rules govern the procedure in all civil actions and proceedings
in the United States district courts, except as stated in Rule 81. They
should be construed, administered, and employed by the court and
the parties to secure the just, speedy, and inexpensive determination
of every action and proceeding.
Copyright@Geanie Asante 2019
10
REVISED FEDERAL RULES OF CIVIL
PROCEDURE
FRCP 16 – Pretrial Conferences,
How does this involve IG
Scheduling;
Management.
? Court expects IT and
Guidelines for preparing for and
network literacy of both
managing the e-discovery process.
sides, so that pretrial
(Volonino and Reddpath, e-Discovery for Dummies,
conferences regarding
www.dummies.com/how-to/content/ediscovery-for-dummiescheat-sheet.html(accessed January 20, 2018)
discoverable evidence are
productive
Copyright@Geanie Asante 2019
11
FRCP 16
Rule 16. Pretrial Conferences; Scheduling; Management
(a) PURPOSES OF A PRETRIAL CONFERENCE. In any action, the court may order the attorneys and any
unrepresented parties to appear for one or more pretrial conferences for such purposes as:
(1) expediting disposition of the action;
(2) establishing early and continuing control so that the case will not be protracted because of lack
of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more thorough preparation; and
(5) facilitating settlement.
Subsections of FRCP 16 omitted from this slide
(f) SANCTIONS.
(1) In General. On motion or on its own, the court may issue any just orders, including those
authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party or its attorney:
(A) fails to appear at a scheduling or other pretrial conference;
(B) is substantially unprepared to participate—or does not participate in good faith—in the
conference; or
(C) fails to obey a scheduling or other pretrial order.
(2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the
party, its attorney, or both to pay the reasonable expenses—including attorney’s fees—incurred
because of any noncompliance with this rule, unless the noncompliance was substantially justified or
other circumstances make an award of expenses unjust.
NOTES
Copyright@Geanie Asante 2019
12
REVISED FEDERAL RULES OF CIVIL
PROCEDURE
FRCP 26 – Duty to Disclose; General Provisions Governing Discovery
(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/howto/content/ediscovery-for-dummies-cheat-sheet.html (accessed January 20, 2018)
How does this involve IG ?
?
Protects litigants from costly and burdensome discovery requests,
given certain guidelines
Copyright@Geanie Asante 2019
13
FRCP 26
Rule 26. Duty to Disclose; General Provisions Governing Discovery
Rule 26 (3)(b)(2) Limitations on Frequency and Extent.
(A) When Permitted. By order, the court may alter the limits in these rules on the
number of depositions and interrogatories or on the length of depositions under Rule
30. By order or local rule, the court may also limit the number of requests under Rule
36.
(B) Specific Limitations on Electronically Stored Information. A party need not
provide discovery of electronically stored information from sources that the party
identifies as not reasonably accessible because of undue burden or cost. On motion to
compel discovery or for a protective order, the party from whom discovery is sought
must show that the information is not reasonably accessible because of undue burden
or cost. If that showing is made, the court may nonetheless order discovery from such
sources if the requesting party shows good cause, considering the limitations of Rule
26(b)(2)(C). The court may specify conditions for the discovery.
(C) When Required. On motion or on its own, the court must limit the frequency or
extent of discovery otherwise allowed by these rules or by local rule if it determines
that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information
by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Copyright@Geanie Asante 2019
14
REVISED FEDERAL RULES OF CIVIL
PROCEDURE
FRCP 26(a)(1)(c) Requires initial discovery to be made no later than
14 days after initial meeting(Rule 26(f).
(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies-cheatsheet.html (accessed January 20, 2018)
How does this involve IG ?
?
IG must make sure information is organized in a way that it can be
accessed quickly
Copyright@Geanie Asante 2019
15
FRCP 26(A)(1)(C)
(C) Time for Initial Disclosures—In General. A party must make the
initial disclosures at or within 14 days after the parties’ Rule
26(f) conference unless a different time is set by stipulation or
court order, or unless a party objects during the conference that
initial disclosures are not appropriate in this action and states the
objection in the proposed discovery plan. In ruling on the
objection, the court must determine what disclosures, if any, are
to be made and must set the time for disclosure.
Copyright@Geanie Asante 2019
16
REVISED FEDERAL RULES OF
CIVIL PROCEDURE
FRCP 26(b)(2)(B): First introduces the concept of not reasonably
accessible ESI. Provides procedures for shifting the cost of accessing
not reasonably accessible ESI to the requesting party
(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies-cheatsheet.html (accessed January 20, 2018)
How does this involve IG
?
IG must justify why this ESI is not reasonably accessible
Copyright@Geanie Asante 2019
17
FRCP 26 (b)(2)(B)
FRCP 26 (b)(2)(B) Specific Limitations on Electronically Stored
Information. A party need not provide discovery of electronically stored
information from sources that the party identifies as not reasonably accessible
because of undue burden or cost. On motion to compel discovery or for a
protective order, the party from whom discovery is sought must show that the
information is not reasonably accessible because of undue burden or cost. If
that showing is made, the court may nonetheless order discovery from such
sources if the requesting party shows good cause, considering the limitations
of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
FRCP 26(b)(2)(C) (C) When Required. On motion or on its own, the court must
limit the frequency or extent of discovery otherwise allowed by these rules or
by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or
less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1)
Copyright@Geanie Asante 2019
18
REVISED FEDERAL RULES OF
CIVIL PROCEDURE
FRCP 26(b)(5)(B): Gives Court a clear procedure for settling
claims when you hand over ESI to requesting party that you
shouldn’t have.
(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-fordummies-cheat-sheet.html (accessed January 20, 2018)
How does this involve IG
?
IG should have clear rules for disposing of information that you
should not have
Copyright@Geanie Asante 2019
19
FRCP 26 (b)(5)(B)
FRCP 26 (b)(5)(B) Information Produced. If information produced
in discovery is subject to a claim of privilege or of protection as
trial-preparation material, the party making the claim may notify
any party that received the information of the claim and the basis
for it. After being notified, a party must promptly return,
sequester, or destroy the specified information and any copies it
has; must not use or disclose the information until the claim is
resolved; must take reasonable steps to retrieve the information
if the party disclosed it before being notified; and may promptly
present the information to the court under seal for a
determination of the claim. The producing party must preserve
the information until the claim is resolved.
Copyright@Geanie Asante 2019
20
REVISED FEDERAL RULES OF CIVIL
PROCEDURE
FRCP 26(f): Requires parties to meet within 99 days of filing suit
and at least 21 days before scheduling conference.
(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies-cheatsheet.html (accessed January 20, 2018)
How does this involve IG
?
IG must make sure information is organized in a way that it can
be accessed quickly
Copyright@Geanie Asante 2019
21
FRCP 26(f)
FRCP 26(f) Conference of the Parties; Planning for Discovery.
(1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or
when the court orders otherwise, the parties must confer as soon as practicable—and in any event at least 21
days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).
(2) Conference Content; Parties’ Responsibilities. In conferring, the parties must consider the nature and
basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or
arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable
information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that
have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to
agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a
written report outlining the plan. The court may order the parties or attorneys to attend the conference in
person.
(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:
(A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a),
including a statement of when initial disclosures were made or will be made;
(B) the subjects on which discovery may be needed, when discovery should be completed, and whether
discovery should be conducted in phases or be limited to or focused on particular issues;
(C) any issues about disclosure, discovery, or preservation of electronically stored information,
including the form or forms in which it should be produced;
(D) any issues about claims of privilege or of protection as trial-preparation materials, including—if the
parties agree on a procedure to assert these claims after production—whether to ask the court to include their
agreement in an order under Federal Rule of Evidence 502;
(E) what changes should be made in the limitations on discovery imposed under these rules or by local rule,
and what other limitations should be imposed; and
(F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).
(4) Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a
court may by local rule:
(A) require the parties’ conference to occur less than 21 days before the scheduling conference is held or a
scheduling order is due under Rule 16(b); and
(B) require the written report outlining the discovery plan to be filed less than 14 days after the parties’
conference, or excuse the parties from submitting a written report and permit them to report orally on their
discovery plan at the Rule 16(b) conference.
Copyright@Geanie Asante 2019
22
REVISED FEDERAL RULES OF CIVIL
PROCEDURE
FRCP 33 – Interrogatories to parties: Gives definitions of business erecords that are discoverable and the right of opposing parties to
request and access them.
(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummies-cheatsheet.html(accessed January 20, 2018)
How does this involve IG
?
IG must have clear policy for retention and justifiable procedure for
destruction
Copyright@Geanie Asante 2019
23
FRCP 33-Interrogatories to Parties
(a) IN GENERAL.
(1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written
interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent
consistent with Rule 26(b)(1) and (2).
(2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not
objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the
court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial
conference or some other time.
(b) ANSWERS
AND
OBJECTIONS.
(1) Responding Party. The interrogatories must be answered:
(A) by the party to whom they are directed; or
(B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or
agent, who must furnish the information available to the party.
(2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the
interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
(3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully
in writing under oath.
(4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely
objection is waived unless the court, for good cause, excuses the failure.
(5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections.
(c) USE. An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence.
(d) OPTION TO PRODUCE BUSINESS RECORDS. If the answer to an interrogatory may be determined by examining, auditing, compiling,
abstracting, or summarizing a party’s business records (including electronically stored information), and if the burden of
deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
(1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify
them as readily as the responding party could; and
(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations,
abstracts, or summaries.
Copyright@Geanie Asante 2019
24
REVISED FEDERAL RULES OF CIVIL
PROCEDURE
FRCP37 – Sanctions: Safe Harbor Rule. Keeps the court from
imposing sanctions when ESI is damaged or lost through routine
“good faith” operations.
(Volonino and Reddpath, e-Discovery for Dummies, www.dummies.com/how-to/content/ediscovery-for-dummiescheat-sheet.html (accessed January 20, 2018)
How does this involve IG
?
IG must have good legally defensible document management program
Copyright@Geanie Asante 2019
25
FRCP 37 – Failure to Make Disclosures or
to Cooperate in Discovery; Sanctions
FRCP 37(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. If
electronically stored information 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) …
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