20 | Massachusetts Lawyers Weekly | August 15, 2016
Sponsored by FTI Consulting LAWYERS WEEKLY: What do you see as your most pressing current data security and e-discovery concerns? KRISTA GREEN PRATT, BIOGEN: Definitely big data is a huge issue for us. Just maintaining it, utilizing it, how do we search it, how do we store it, and then you add in the litigation aspect when it comes to e-discovery. That makes it a challenge where we’ve got thousands of people working at our company and most of the departments have their own ways and means of storing information — antiquated databases, cloud-based storage, share point sites. You name it, we’ve got it. So we’ve got a business challenge about utilizing that data most effectively for our research purposes, but we’ve got a challenge in the litigation group around accessing that information and providing it when there is a lawsuit.
MASSACHUSETTS LAWYERS WEEKLY: What is the “state of the state” for data management and e-discovery in your industry? What are you doing now to manage your data and e-discovery? LURLEEN GANNON, MASSDOT/MBTA: For us, it’s in flux. I have been at the MBTA for approximately two years, and I came in around the time where the new rules had just come in for the state court. So we were really sort of struggling with litigation holds and what are our obligations and what is it we need to do. One of the things I did when I first came in was work with some of the other folks in the office with our IT group to just identify what are all of the potential sources of information that we have. And at the T that can be even more challenging than for some other organizations because we had about 17 different databases, and we had individual computers. Just identifying, when you’re dealing with different departments, where to find the information is … challenging. … Identifying all of the different custodians and just sort of making sure you get all of that information can be challenging.
“Defensible disposal always made sense. Lots of bad things can happen if you store core data forever for no reason.” Jake Frazier, FTI Consulting JONATHAN MOLL, BABSON COLLEGE: The big issue for us is really managing the data in legacy databases. It’s also the timeframe in which we need to retain the information. As an example, we have alumni databases and, obviously, they get changed over time. But we have tens of thousands of alumni, so we are always preserving records for those alums. The bigger issue is that we’ve gone to the cloud, so we’ve lost a certain amount of control over how we can obtain information when we get subpoenas and things of that nature. … Preservation of emails, when we get a litigation matter or an agency matter, means that we really have to go across the institution and flag certain people and certain systems for preservation. And because it is not centralized, it is not a single database. It is a very time-consuming effort. AMY DECESARE, ALLIED WORLD: I come at this from a slightly different perspective because I’m in claims, so it’s not my data and I’m not the law firm defending it. I’m dealing with not-your-usual suspects. They’re serial litigants and that’s just part of their business model. They understand they’re looking for all the emails, and they develop processes for the information, and they work on the information coming in. [But] that volume growth of data has hit another level. And you see insureds, people who have started to sit on large volumes of data and aren’t expecting to get sued, and it’s messy. And then you have outside counsel who aren’t used to dealing with e-discovery. How do they figure out how to efficiently and economically deal with this mess so that they can defend the litigation against their client? MICHAEL JOHNSON, LIBERTY MUTUAL: One of the things that I think is the most exciting about managing ESI and electronic discovery is I’ve found that the law firms, the attorneys both inside and outside, have really caught up to the IT folks. Not to say the lawyers are right there with them — there is still a race and the lawyers are behind, but at least the race is a little closer. The lawyers really have been able to keep up with the technology, although it is changing as fast as it is.
JAKE FRAZIER, FTI CONSULTING: I sit in a kind of interesting position in that I’ve worked with a lot of different clients. I sit on a lot of advisory boards for information governance committees for organizations, and what I’ve noticed is, just as in the early 2000s when the wave of e-discovery hit, it sort of hit a certain profile of organization first — insurance, financial services and so forth. Then as e-discovery process optimization and in-house tools and in-house repeatable processes became more and more common, that was the same group that led that charge. And that group right now … has pivoted hard toward defensible disposal and information governance. I’m not sure exactly what did it. Defensible disposal always made sense. Lots of bad things can happen if you store core data forever for no reason. Maybe the cyber security aspect that really hit in the news in the past year or two got the attention of boards. So I’ve seen a hard pivot toward defensible disposal. SARA MEYERS, SHIRE PHARMACEUTICALS: I always try to guess which issue is going to be hot at Legal Tech in New York. Next year it’s going to be defensible disposal, I can guarantee that. The boards and the people high up in the company are saying, “Wait a second, we really have to do something about all this data we’ve got, even though we’re really afraid to get rid of it.” I’ve been at Shire for a year now, and one of the main things I’m working on is trying to work with IT… in this sort of information governance mode to talk about how we can keep our preservation obligations but also come up with a plan to defensibly get rid of things that we don’t need to keep. FRAZIER: Just as a quick follow-up to that, for the multi-national [company] the shift with the European Union basically invalidating the FTC Safe Harbor and the privacy shield within the Global Data Privacy Regulations … was just another way to say, “OK, we have to find our stuff, we have to know where it is, we have to put it in the right place, we have to get rid of it if we don’t need it.”
LAWYERS WEEKLY: What are other “hot topics” in your industry? PRATT: A big issue that I’ve seen arise over my time at Biogen is the increasing flexibility of the workforce and the nature in which work is being performed. Gone are the days where the sole and exclusive means of communicating is a phone call or even an email. We’re now into a world of instant messages and text messages and bring your own device and all of the issues that go along with that, and it makes it very challenging, particularly for a company that is trying to move at the speed of business that we need to innovate. For us, it’s a challenge to kind of keep up with that to make sure that we’re still thinking through … how do we ensure that that information is secured and maintained. Our usual process of initiating legal holds, for example, will cover our emails, and we automatically preserve emails on a custodian-by-custodian basis at the outset of litigation, but it’s a slightly more involved manual process to ensure that these other types of information are stored. It is a challenge. DECESARE: The hot topic that we constantly struggle with and talk about and deal with is the education gap with outside counsel. Inside counsel seems to be getting a better hit on it, or at least those who are specializing in it. But those who are still … good litigators and amazing lawyers for their core area of knowledge, they like to forget about e-discovery. They are not comfortable with it and they struggle with it. I think part of it is just human nature. When you struggle with something and you’re not comfortable with something, you try not to deal with it. And unfortunately e-discovery and information is dealt with better early on. Strategic decisions are made early on. The best decisions are made early on. And you’re combining litigators who put things off because that’s their nature, they are people who are just not comfortable with it, so they are making decisions far too late in the process to make well-informed decisions.
“[Outside counsel] can sort of tell you what the rules are, and they can send you litigation hold letters that are six pages long and [say], ‘Why don’t you send that around?’ And you just can’t.” Lurleen Gannon, MassDOT/MBTA GANNON: I think that is really true. [Outside counsel] can sort of tell you what the rules are, and they can send you litigation hold letters that are six pages long and [say], “Why don’t you send that around?” And you just can’t. It’s not going to be helpful for my in-house team to send them a six-page letter that says you need to preserve everything under the sun, always, for the rest of time. That is certainly risk-averse, but that is not helpful. JOHNSON: Initially everyone was so concerned: “This is out there now, I’ve got to be careful.” … There was that real concern about sanctions. Now I think many industries are thinking … how can we think about these issues more strategically and put ourselves in a better spot than just reacting to “a judge is going to sanction you because you didn’t do what you were supposed to do.” MEYERS: Obviously, the sanctions were scary. But if you look at most of the sanctions cases, they’re really situations where people are taking things that they know are relevant and are going to make a difference in the case and destroying them or taking a hammer to a hard drive or something like that. They are … not good companies responsibly acting to preserve data as best they can.