chapter 12 twelve issues in electronic discovery civ lit 2
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Civil Litigation:Process and Procedures
Chapter TwelveIssues in Electronic Discovery
Civil Litigation: Process and Procedures Goldman/Hughes
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Electronic Discovery Litigation documents may be
Paper Electronic files stored
On computers Backup file media: tape, CDs, DVDs,
portable drives Litigation support specialty application
software helps Organize Search
Civil Litigation: Process and Procedures Goldman/Hughes
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Electronic Discovery Issues Compatible electronic formats Cost of recovering lost or
corrupted files Managing voluminous results Reviewing documents to
protect privileged information Cost/benefit budget analysis
Civil Litigation: Process and Procedures Goldman/Hughes
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Electronic Discovery Process Determine
What is needed Where it is located, who controls it The format in which required
documents are available The format that would be most
beneficial to the discovering party The value v. the cost of obtaining
them
Civil Litigation: Process and Procedures Goldman/Hughes
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E-Discover Road Map
Civil Litigation: Process and Procedures Goldman/Hughes
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“Record” DefinedJicarilla Apache Nation v. United States, 80 Fed. Cl. 413
(2004)
“As used in the Order, ‘record’ means any book, bill, calendar, chart, check, compilation, computation, computer or network activity log, correspondence, data, database, diagram, diary, document, draft, drawing, e-mail, file, folder, film, graph, graphic presentation, image, index, inventory, invoice, jotting, journal, ledger, machine readable material, map, memo, metadata, minutes, note, order, paper, photograph, printout, recording, report, spreadsheet, statement, summary, telephone message record or log, transcript, video, voicemail, voucher, webpage, work paper, writing or worksheet….”
Civil Litigation: Process and Procedures Goldman/Hughes
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“Record” Also includes “…any other item or group of
documentary material or information, regardless of physical or electronic format or characteristic, and any information therein, and copies, notes, and recordings thereof.”
Civil Litigation: Process and Procedures Goldman/Hughes
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Electronic Processing Filtering – scan or search documents for
relevant terms Such as a name or date In order to narrow the focus
De-duplication (de-duping) – electronically eliminating duplicates of the same document Generally need only one copy of
something that may have been sent to hundreds of recipients
However, it is sometimes necessary to show that multiple copies were sent
Civil Litigation: Process and Procedures Goldman/Hughes
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Requesting Documents May seek electronic documents in
their native file format (saved in the same format in which it was created)
Convert paper documents to electronic files Determine compatible format -- TIFF
or PDF most commonly used for conversion
Civil Litigation: Process and Procedures Goldman/Hughes
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Coding Capturing case-relevant
information Objective coding (bibliographic
indexing) includes author, type of document, recipient, date
Subjective coding also includes keywords involving subject matter
Auto-coding electronically scans a document using narrow, specific criteria – may identify documents for further hand coding
Civil Litigation: Process and Procedures Goldman/Hughes
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Electronically Stored Information Federal Rules pertain to ESI They have increased awareness of
The need for preliminary auto-coding Metadata issues Optical Character Recognition
technology
Civil Litigation: Process and Procedures Goldman/Hughes
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Redaction and Production Numbering Redaction is the removal of confidential
information In paper documents, manually blacked-out Simple deletions may not be adequate
electronically, since information may be recaptured
Production numbering (Bates) Makes identification & review of documents
easier Prepare exhibits for trial, marked P or D
Litigation management programs may do this automatically
Civil Litigation: Process and Procedures Goldman/Hughes
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Metadata Electronic information about a
document Resource (system) metadata –
location of the file Content (application) metadata –
information about the content & author
Unless specifically blocked, usually available in files delivered in native format
Not available in scanned files (images)
Civil Litigation: Process and Procedures Goldman/Hughes
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Court Description of Metadata Williams v. Sprint/United Management Co. (Sept. 19,
2005), U.S. Dist. Ct. 03-2200-JWL-DJW (D. Kansas)
“Some examples of metadata for electronic documents include: a file’s name, a file’s location (e.g., directory structure or pathname), file format or file type, file size, file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to it, who can run it).”
Civil Litigation: Process and Procedures Goldman/Hughes
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Potential Problem Because it is hidden, there may be
an inadvertent disclosure of confidential or privileged information
Can be prevented Convert documents from native
format into images Use software that removes, or
“scrubs” metadata from files before sending
Civil Litigation: Process and Procedures Goldman/Hughes
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Scanning Documents Need to determine the type of
document format TIFF or PDF is an image with easy
portability, but usually “read only” OCR (optical character recognition)
converts a document into a full-text, searchable document that can be manipulated
Civil Litigation: Process and Procedures Goldman/Hughes
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Obtaining E-Mail Records Usually have to work from back-
ups May not have been saved – taped
over Will not show mail received & deleted
in a single day Spam is generally trapped &
eliminated A single message may show up as
both having been sent & having been received, creating 2 “hits” per message
Civil Litigation: Process and Procedures Goldman/Hughes
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Some Problems Wiginton v. CB Richard Ellis, Inc., 229 F. R. D. 568
(2004)“[A]though talking about documents in terms of
numbers in not entirely accurate, the search system was designed to get an idea of how frequently the documents containing search terms were being passed around…within or between the offices. Because spam was eliminated, it means the picture does not present an entirely accurate view of any other pornographic e-mails that may have been available…, or how often users are opening such documents in view of other people. The numbers also do not reflect e-mails that were not captured on back-up tapes.”
Civil Litigation: Process and Procedures Goldman/Hughes
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Comparing TIFF and PDF TIFF
Older files more apt to be saved this way No longer supported by Adobe Files 10x the size of PDF, taking extra
storage space and transmission time Cannot be easily altered
PDF Smaller & faster files Can support redaction & production
numbering
Civil Litigation: Process and Procedures Goldman/Hughes
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Computer Forensics v. Data Gathering
Computer Forensics Data Gathering
Goal To locate hidden or deleted files
To capture potentially responsive documents
Tools Required
Highly specialized, expensive hardware & software
Relatively inexpensive tools utilized by most IT depts.
Expertise Required
Computer forensics experts In-house IT staff or electronic discovery service
Relative Expense
Can cost thousands of dollars to analyze a single hard drive
Cost efficient methods employed to leverage the client’s own resources
Civil Litigation: Process and Procedures Goldman/Hughes
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Forensic Issues Intentionally deleted or altered
documents Accidentally deleted or altered
documents, including catastrophic events and viruses
Detailed information about the chain of custody of electronic information (tracking)
Civil Litigation: Process and Procedures Goldman/Hughes
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Electronic Discovery Service Companies Outside consultants useful when a
firm Requires greater expertise Doesn’t have the equipment or
personnel to handle a large discovery load
May be full-service, including forensic expertise
May provide limited services, like auto-coding or scanning
Civil Litigation: Process and Procedures Goldman/Hughes
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Considerations
Civil Litigation: Process and Procedures Goldman/Hughes
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Litigation Support Systems Complex cases may involve millions
of pages of information Litigation support software helps
Search for & retrieve evidence Handle documents, testimony,
photographs or electronic files Organize information into online folders Permit concurrent multiple users &
remote access
Civil Litigation: Process and Procedures Goldman/Hughes
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Processing Electronic Evidence
Civil Litigation: Process and Procedures Goldman/Hughes
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Searches Searches can be performed by
Word, phrase, date, e-mail address, document type
Boolean searches, using Connectors (AND, OR, NOT, NEAR) to
establish proximity of the words sought Fuzzy searches (looks for strings of
characters) Wild cards (permits replacement of a
letter in a word to catch variations)
Civil Litigation: Process and Procedures Goldman/Hughes
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Concordance
Civil Litigation: Process and Procedures Goldman/Hughes
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Concordance Software Like Summation, a litigation
support system Identifies key documents for trial Prepares witness kits Organizes document responses Prints chronology reports Generates deposition digests Manages e-mail & electronic documents Maximizes OCR text
Civil Litigation: Process and Procedures Goldman/Hughes
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Ethical Issues Attorneys can be sanctioned for
failing to fulfill an e-discovery request May obtain an extension if difficulties
arise May be able to shift the expense to the
discovering party May have a negative inference drawn for
the jury Could face a contempt or criminal
charge for intentional destruction of evidence
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Emerging Law Federal Rules of Civil Procedure
provide a framework for electronic documents E-mails Scanned documents Word processed documents Electronic databases & spreadsheets
Proof of a legal claim may be in electronically generated documents
Civil Litigation: Process and Procedures Goldman/Hughes
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Standards for ESI Zubulake v. UBS Warburg LLC, 229 F.R.D. 422
(S.D.N.Y. 2004)“Now that the key issues have been addressed
and national standards are developing, parties and their counsel are fully on notice of their responsibility to preserve and produce electronically stored information.***It is hoped that counsel will heed the guidance provided…and will work to ensure that preservation, production and spoliation issues are limited, if not eliminated.”
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Spoliation The destruction or significant alteration
of evidence The failure to preserve property for
another’s use as evidence In pending or reasonably foreseeable
litigation Physical objects (e.g., crushing a car),
paper documents (e.g., burning a will) or electronic documents (e.g., deleting an e-mail)
Civil Litigation: Process and Procedures Goldman/Hughes
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Retention of Documents Ordinary course of business, with no
reasonable expectation of litigation Archive electronically Create paper archives Destroy (shredding, erasing)
Litigation hold Preserve Maintain the means of access (necessary
software, drives, etc.)
Civil Litigation: Process and Procedures Goldman/Hughes
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Litigation Hold Zubulake v. UBS Warburg LLC, Id.“[C]ounsel has a duty to effectively communicate
to her client its discovery obligations so that all relevant information is discovered, retained, and produced. In particular, once the duty to preserve attaches, counsel must identify sources of discoverable information. This will usually entail speaking directly with the key players in the litigation, as well as the client’s information technology personnel.”
Civil Litigation: Process and Procedures Goldman/Hughes
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Dismissal or Default The sanction for failing to comply fully
with electronic discovery requests was a default judgment against the non-cooperating party Production of discoverable material was
late & incomplete Raised an issue of tampering with
improper archiving proceduresIn re Telxon Corp. (Jan 11, 2005), U.S. Dist Ct.
5:98CV2876, 1:01CV1078 (N.D. Ohio)
Civil Litigation: Process and Procedures Goldman/Hughes
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Negative Inference Residential Funding Corp. v. DeGeorge
Financial, 306 F.3d 99 (2nd Cir. 2002)“[W]here a party seeking an adverse inference
adduces evidence that its opponent destroyed potential evidence (or otherwise rendered it unavailable) in bad faith or through gross negligent (satisfying the ‘culpable state of mind’ factor), that same evidence of the opponent’s state of mind will frequently also be sufficient to permit a jury to conclude that the missing evidence is favorable to the party (satisfying the ‘relevance’ factor)….”
Civil Litigation: Process and Procedures Goldman/Hughes
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Costs Can include
Restoration services (outside consultants, computer forensics)
Attorney time for document review Paralegal time for document retrieval
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Federal Rules and E-Discovery
Civil Litigation: Process and Procedures Goldman/Hughes
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Other Amended Rules Rule 16 – Pretrial conferences to address
electronic discovery Rule 26 – Duty to disclose ESI Rule 33 – Answers to interrogatories must
include ESI Rule 34 – Production of documents includes
data compilations Rule 37 – Sanctions include failure to produce
ESI Rule 45 – Subpoenas duces tecum include ESI Form 35 – Report of parties’ discovery planning
meeting
Civil Litigation: Process and Procedures Goldman/Hughes
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Protecting Privileged Information
Civil Litigation: Process and Procedures Goldman/Hughes
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Claw-Back Provisions Does not relieve the legal team
from protecting privileged information
Particularly important with ESI A careful review and attorney
objections to requests for protected materials will reduce the need for this
Civil Litigation: Process and Procedures Goldman/Hughes
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IT Personnel Advise the legal team Consult with clients
Identify cost-effective ways of complying with discovery requests
Help set up archives for document retention
Identify the need for specialized help Should not be used as expert witnesses,
which would jeopardize privileged information