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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?You must do the following:1) Create a new thread and share your perspectives with examples and references to course material with APA guidelines2) Please make your initial post with 500 words and two response posts substantive with at least 150 words . A substantive post will do at least TWO of the following:Ask an interesting, thoughtful question pertaining to the topicAnswer a question (in detail) posted by another student or the instructorProvide extensive additional information on the topicExplain, define, or analyze the topic in detailShare an applicable personal experienceProvide an outside source (for example, an article from the UC Library) that applies to the topic, along with additional information about the topic or the source (please cite properly in APA)Make an argument concerning the topic. chapter_8.pdf Unformatted Attachment Preview 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 attorneys 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 partys 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) ... Purchase answer to see full attachment