UTILIZING TECHNOLOGY FOR DATA MANAGEMENT AND INFORMATION READINESS MANAGING FALSE CLAIMS ACT LITIGATION

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1 UTILIZING TECHNOLOGY FOR DATA MANAGEMENT AND INFORMATION READINESS Todd Haley, Vice President of Business Intelligence Mike Chagnon, Director of Channel Engagements

2 Today s Speakers Todd Haley, Vice President of Business Intelligence, etera Consulting As Vice President of Business Intelligence, Todd Haley is responsible for managing etera Consulting s Client Delivery System (CDS) team and all processes, procedures and reports necessary to ensure the handling of all client ediscovery and data management projects. Mr. Haley brings his experience as Chief Technology Officer, directing both IT and litigation support in a nationally recognized consulting firm to the forefront. At etera, he regularly consults clients on how to plan a defensible electronic discovery and data retention strategies. Mr. Haley has over 16 years of information technology and litigation support experience. Mike Chagnon, Director of Channel Engagements, etera Consulting In his role as Director of Channel Engagements, Mike Chagnon is responsible for leading the etera Consulting channel partnership program in the U.S. and Europe. He is responsible for advising and coordinating with etera s partners on client solutions and resources across the entire EDRM model including data collection, forensics, electronic discovery processing and litigation hosting. Mr. Chagnon also provides extensive partner training programs covering etera s Forensics One and 1ntelligent One data management and reporting capabilities.

3 About etera Consulting Nationally recognized company providing innovative solutions to help Fortune 1000 and Am Law 100 clients overcome the costs and budget challenges of managing large volumes of data and electronic discovery. Technology independent consultancy offering four key services encompassing Early Information Assessment, Forens1cs One, 1ntelligent One and Opt1mum One. Provide clients with the management expertise, technology resources and data analysis tools needed to defend against litigation, government investigations and regulatory oversight. Headquartered in Washington, DC, etera Consulting has served the legal industry since 2004.

4 Agenda Industries that are likely targets of False Claims Act ( FCA ) actions The importance of data management and information readiness Utilizing technology to lower the cost of defending FCA actions How timely data analysis can provide leverage in responding to FCA matters Methods of preparation that can provide readiness to defend against FCA litigation

5 The False Claims Act (FCA) The False Claims Act is a federal law that imposes liability on persons and companies who defraud governmental programs. The law includes a qui tam provision that allows people who are not affiliated with the government to file actions on behalf of the government informally called whistleblowing. FCA claims have traditionally involved health care, military, government contractors, and dominate the list of the largest pharmaceutical settlements.

6 FCA is Not Just a Federal Matter Twenty-six states have state FCA provisions Pennsylvania and Florida just this year provided amendments to their state FCA provisions to increase the authority of the states and the protections of the whistleblowers

7 Some Industries Expected To Face Scrutiny The Lance Armstrong FCA suit for violating terms of his U.S. Postal Service sponsorship deal is an example of how the FCA can reach beyond traditional boundaries. Banking and finance Stimulus projects and alternative energy Cloud computing and counterfeit electronics Healthcare Defense contracting

8 Some Recent Headlines DOJ Sues Novartis Over Alleged Myfortic Kickback Scheme Sanofi Can't Duck Amphastar's FCA Suit Over Lovenox Whistleblowers Say BAE Is Behind The Times On FCA US Jumps Into FCA Suit Over 'American' Goods Made In China For-Profit Trade School Can't Dodge FCA Suit Intermountain Health To Pay $25.5M To Settle FCA Claims Fluor Settles Whistleblower's FCA Suit Over DOE Contracts

9 Defending FCA Challenges Litigation readiness, internal review, smart preservation, advanced filtering and fast review are key to defending FCA challenges: Investigating, cooperating and reporting violations can reduce damages and penalties Understanding the data will help decide how to proceed in motions and case strategy You must have an effective compliance and litigation readiness program if doing business with the government Preserve data broadly, process narrowly Use technology to help with fast discovery

10 FCA and How to Handle Discovery Discovery can occur much more rapidly in FCA cases, so proactive litigation holds and processes are essential. It is important to understand your data prior to the 26(f) Meet and Confer. Prepare for 34(a)(b) request for production, as soon as the FCA claim appears Ask questions to ensure that proper data is being preserved Talk often about data requirements Maximize planning through understanding and transparent reporting

11 26(f) Meet And Confer Sample data should be collected, analyzed and tested prior to the 26(f) By understanding your data, you can approach the 26(f) with a proactive approach By testing keywords, analytics, etc. in advance, you are able to approach the opposing side with specific requests

12 Rule 34: Assume That All Relevant ESI is Producible To produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: Any designated documents or electronically stored information including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or Any designated tangible things; To permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

13 FORENSIC COLLECTION OF DATA: WHY IS IT IMPORTANT

14 What is the Forensic Collection of Data? In simple terms, the forensic collection of data is the process of preserving or collecting data from a computer device for later analysis and investigation. A forensic collection can cover different scenarios: When a targeted collection is needed to just gather certain items but not a full image When a full bit-by-bit image copy if needed of an entire hard drive or device When the data is needed to perform electronic discovery

15 Why is a Forensic Collection Any Different Than Just Copying the Data? When a trained forensic investigator performs a forensic collection, he or she is not just copying data. When it is done right, they are performing a forensically sound copy and preservation of the data, meaning that they utilize special copying software that creates a bit by bit copy of the data itself, while using write blocking hardware or software in between the subject drive and their drive that they copy the data to. Collection must ensure a complete chain of custody from the time the data in on the electronic device until it is presented as evidence in court. This is done to preserve the data without making any changes to it, so that they can later testify or report on the validity of the data as being an original copy and not having been changed during the process. Preservation of data should be an integral part of any litigation readiness program, ensuring that data is collected and preserved as soon as litigation is reasonably expected

16 Why Does it Matter How the Data is Copied? Is the data collection able to stand up in court? What are the credentials of the person that did the collection, and has the software been approved in prior court cases? Will the normal course of business requirement be maintained? Is the data being preserved soon enough (e.g., reasonable expectation of FCA)?

17 What About Self-collection? Depending on the nature of the case, a self-collection may be acceptable. Does the internal resource know the rules of evidence and how to properly document the collection? Is the internal resource willing to testify in court about the collection and all other aspects of the case? A forensic investigator can configure a USB thumb drive and external hard drive to be able to be used by almost anyone to do a self-collection. While self-collection may be acceptable in certain instances, FCA matters may require at least third-party oversight to assure the courts of no wrongdoing.

18 Where is the Data? Laptops/desktops Servers and file share Removable hard drives Backup tapes Mobile devices phones and pads Home computers Social media Facebook, Twitter, LinkedIn The Cloud Copier/scanner hard drives

19 Why Analyze Mobile Devices? Personal use vs. corporate use when worlds collide The latest trend happening in corporations is B.Y.O.D. (Bring Your Own Device) which allows employees to use their own devices to gain access to corporate resources such as This is especially important in an FCA matter, if the whistleblower and/or other parties used mobile devices for communications

20 Why Analyze Mobile Devices? (cont.) Not your mother s cell phone anymore Today s phones are now mini computers that fit in the palm of your hand! They now can hold hundreds of applications that can do things such as process credit cards, capture videos, even remotely access corporate networks! BYOD is requiring companies to re-think their policies and procedures.

21 FORENSIC REPORTING: HOW IT WORKS AND WHY IS IT IMPORTANT?

22 What are Forensic Reports Used for? These reports are often used for several purposes including: Billing, Affidavits, Proof of what was found or not found, Analysis for moving data through to electronic discovery, and Chain of custody to enter evidence.

23 The Chain of Custody Steps in Forensic Reporting How the data got to the investigator and what steps were taken to secure its transit Lists all software and hardware used to process the data, including versions of the software tools Details the time zone the evidence was set to run in, and process the data in that time zone so that date and time stamped items will be read in their correct time zone A very important item that should exist in all reports is a verification of the original data via hashing to show that the data being examined is an exact replica of the original

24 etera s Forens1c One Program and Forensic Reports World-class program covers all forensic needs of our clients End-to-end solution from collection to review Fills the solution gap that exists with some providers where they either offer collection or electronic discovery, but not both

25 etera s Forens1c One Program and Forensic Reports Output of a forensic report is important to show what we did, how we did it, and what we found Report can show hit stats and the need for a review platform Able to be used later when questions come up

26 E-DISCOVERY PROCESSING: 1NTELLIGENT ONE SM AND RULE 34

27 REALITY CHECK: FCA Document Requirements and Fee-Shifting Winston v. Academi Training Center Inc., No. 1:12-cv-767 (March 13, 2013) The court singled out the provision in the arbitration agreements that stated that there would be no discovery during the arbitration process, except that the parties would exchange written evidence five days before the arbitration. The court noted that this was not sufficient in the context of False Claims Act claims, which are often document intensive, particularly when the case involves alleged falsification of documents. Second, the court pointed to the provision in the agreements that required the plaintiffs to reimburse the company for all fees and costs associated with the arbitration, regardless of outcome. The court contrasted this fee-shifting provision with the provision of the False Claims Act that awards reasonable fees, expenses, and costs to a successful plaintiff, noting that the Academi agreements limited relief for whistleblowers that Congress had specifically intended in the False Claims Act.

28 Rule 34 and e-discovery Processing Must describe with reasonable particularity each item or category of items to be inspected; Must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and May specify the form or forms in which electronically stored information is to be produced.

29 e-discovery: Smart Analysis Phase Determine what you have so you can with certainty explain what is going to be processed; Eliminate the data that is highly probable not to include relevant data; and Reduce the amount of data that has to move through the entire process. In FCA cases, the analysis needs to consider not only the specific suit but also tangential data that may help in the defense or provide additional information to the plaintiff

31 e-discovery: Smart Filtering Phase Because you must provide a reasonable time, place, and manner for the inspection and for performing the related acts, the methods that you use today are very different than the past; Reasonable is becoming more and more unreasonable as individuals don t quite understand the technology yet; Smart filtering eliminates system files, irrelevant dates, keyword-specific documents

32 e-discovery: Smart Hosting Phase Once you have filtered the data, use the hosted data smartly Use near-duplication and threading tools to speed up review; Use search term reports to quickly eliminate data; Use clustering, categorization and predictive coding to automate some of the review; Prepare documents for easier production.

34 Equivio Near-Duplication

35 Equivio Threading

36 Computer-Assisted Review (Predictive Coding) Workflow Total Number of Documents Seed Set for Human Review Results from Categorization Responsive 298,200 1,000,000 Documents 1,000 Documents Non- Responsive 695,800 5,000 Uncategorized (for Manual Review) Orange Round QC of 1 st Round (Statistical Sample) 1,533 1,534 QC Round Overturn Report 2 nd Round of Categorization Responsive 317,589 Non- Responsive 674,877 QC of 2 nd Round (Statistical Sample) 1,534 Overturn Report Validation Criteria Met 9,068 documents manually reviewed 990,932 documents categorized by Relativity 317,589 responsive documents identified Potential Savings: Over 16K hours of review time

37 E-Discovery: Smart Production Phase May specify the form or forms in which electronically stored information is to be produced. TIFFs with text (preferred method due to size and ease); Searchable PDFs (another option popular in Florida market); Non-searchable PDFs with text; and Multiple other formats Federal agencies have very specific production requirements; be sure to use a provider that understands federal requirements

38 1ntelligent One Reporting The smartest phase is to have an overall reporting phase throughout the process so that you can see the data at a higher level; 1ntelligent One allows individuals to predict outcomes and lower the amount of data getting to the review platform.

39 Questions and Answers

40 Thank you for attending today s event Thank You! Speaker s contact information: Todd Haley Vice President of Business Intelligence thaley@eteraconsulting.com Mike Chagnon Director of Channel Engagements mchagnon@eteraconsulting.com

5 Daunting. Problems. Facing Ediscovery. Insights on ediscovery challenges in the legal technologies market

5 Daunting. Problems. Facing Ediscovery. Insights on ediscovery challenges in the legal technologies market 5 Daunting Problems Facing Ediscovery Insights on ediscovery challenges in the legal technologies market Introduction In the late 1990s, ediscovery was in its infancy as legal and IT professionals began