![Page 1: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/1.jpg)
Dr. Laurie Dean-Newton
Tuesdays
6:15pm-9:35pm
R206
![Page 2: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/2.jpg)
Electronic Discovery Overview
• Electronic discovery refers to the process of producing and receiving litigation
documents in electronic format
• The discovery stage of litigation takes place before trial and is when parties
disclose to each other information about their case
![Page 3: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/3.jpg)
Four Steps of Traditional Discovery
• Taking pretrial oral testimony from parties and witnesses in the form of depositions
• Exchange of written requests for information and interrogatories, and the responses to these requests
• Exchange of statements of fact, called requests for admissions
• Production of hard-copy documents in response to either a subpoena duces tecum or a request for the production of documents
![Page 4: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/4.jpg)
Document Production
o Crucial aspect of discovery because documents sometimes tell a story different from that of witnesses
o Documents can:
• Establish facts and timelines
• Support conclusions
• Reveal complex ideas
• Support inferences that are vital to any litigation
![Page 5: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/5.jpg)
Electronic Documents
o Today, most “documents” are created in an electronic format o More than 95 percent of all documents are now
electronic
o Many courts have held that the production of hard-copy documents when electronic versions are available is unacceptable
o Federal courts have adopted rules regarding the discovery of electronic documents
![Page 6: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/6.jpg)
Characteristics of Electronic Documents
o Intangible o Distributed rather than held in one place o Exist in countless formats o Difficult to destroy o Simply viewing them can change the
metadata o Few people have any understanding of what
an electronic document really is
![Page 7: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/7.jpg)
Federal Rules of Civil Procedure and Electronically Stored Information
o The FRCP refers to any electronic data as electronically stored information (ESI)
o FRCP 34(a) states that ESI includes “writings, drawings, graphs, charts, photographs, sound recordings, images, and other data compilations stored in any medium from which information can be obtained or translated”
o ESI is a term of art used broadly by the FRCP so that any new form of electronic information will be covered by the rules
![Page 8: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/8.jpg)
Mandatory Meet and Confer Sessions
o FRCP 26(f) states that as soon as practicable, ESI must be discussed between the parties o Creates an expectation that the attorneys involved will work collaboratively regarding the
exchange of ESI
o Meet and confer session helps the parties understand the volume of the materials to be
reviewed, sampled, and possibly produced
![Page 9: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/9.jpg)
The Challenges of Electronically Stored Information: Volume
o ESI can replicate itself without the user realizing it
o Can be gleaned from: o Computers
o Network drives and servers
o Electronic storage devices
o PDAs, BlackBerries, iPods, MP3 players
o Cell phones
o Instant messages
o Voice mail
o Web history
![Page 10: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/10.jpg)
The Challenges of Electronically Stored Information: Metadata
o Metadata is information about the document, such as the precise time the document was created, accessed, modified, and copied
o Simply opening a document changes the metadata
o If you copy an electronic file in an attempt to comply with an ESI production request, you may permanently change the metadata, which can lead to sanctions
![Page 11: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/11.jpg)
The Challenges of Electronically Stored Information: Deletion
• Hitting “delete” does not mean that a file is actually gone
• Deleting makes the disk space occupied by the file available to be written over
• Can be a long time before a “deleted” file is actually written over
• Computer forensics professionals may be able to recover deleted information
• May be many copies of an electronic file, so the ESI may still exist unless all copies are destroyed
![Page 12: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/12.jpg)
The Challenges of Electronically Stored Information: Deletion
• ESI can be unintentionally destroyed • Most businesses have a regular disposition schedule whereby
old computer backup tapes are destroyed after a specific amount of time
• Litigation hold • Instructions designed to prevent the destruction of evidence,
including ESI, pending litigation
• Litigants may be subject to sanctions if evidence is subsequently destroyed, even if steps were taken to prevent the destruction
![Page 13: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/13.jpg)
Duty to Exchange and Preserve ESI
• FRCP specifically require that the parties preserve and exchange ESI • Mandatory for the parties to disclose the
existence and location of ESI even before they receive discovery requests
• Producing party must allow the requesting party to copy, test, and sample ESI
• Producing party is required to produce information, which can be in just one form
![Page 14: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/14.jpg)
Duty to Exchange and Preserve ESI
• As soon as a potential party reasonably anticipates litigation, it becomes obligated to preserve electronic data • Must put a litigation hold in place • Failure to institute or comply with a litigation hold
may lead to claims that the ESI was subjected to spoliation
• Spoliation • Destruction or alteration of relevant documents or
other evidence in litigation
![Page 15: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/15.jpg)
Electronic Format of ESI
• FRCP 34(b)
• Allows the requester, at least initially, to specify the form in which the ESI is to be produced
• Requires that the producing party produce the ESI as kept in the usual course of business if the requesting party does not specify a format
• Native format is the file structure/program in which a piece of information was originally created
![Page 16: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/16.jpg)
Inaccessible Data
• FRCP 26(b)(2)(B) states that ESI need not be produced if the source is not reasonably accessible because of undue burden or cost
• Producing party must give specific factual reasons to back up claims of inaccessibility
• Courts may allow the requesting party to examine the system in question to determine whether the ESI is in fact inaccessible
![Page 17: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/17.jpg)
Inaccessible Data
• Inaccessible ESI may include electronic data that has been:
• Erased
• Fragmented
• Stored on out-of-date storage systems no longer supported by the organization
• Producing party may still be required to produce the ESI if the requesting party can show the information is important, relevant, and unavailable from any other source
![Page 18: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/18.jpg)
Clawback and Safe Harbor Provisions
• Clawback provision
– Provides a process for a producing party to recover information that was inadvertently produced when it was in fact privileged
• Safe harbor provision
– Parties that act in good faith but inadvertently destroy ESI during routine operation of their information systems are not subject to sanctions
![Page 19: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/19.jpg)
Producing ESI
• Parties must be sure to preserve and assemble the requested material
• The material must be reviewed and culled to remove privileged, irrelevant, or redundant material
• The material must be produced to the requesting party
![Page 20: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/20.jpg)
![Page 21: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/21.jpg)
Preservation Letter
• Should document the instructions and process of preserving ESI and be as specific as possible
• Must be sent to the client early in the process
• A version should also be sent as soon as possible to the opposing party or its counsel
![Page 22: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/22.jpg)
Items to Be Negotiated between the Attorneys/Parties at the Meet and Confer Session
• Agreement to a common document production format, including methods of dealing with native format documents
• Whether metadata is being produced in whatever file formats are agreed to
• Any ESI related to privilege
• Disclosure of databases
• Any inaccessible data
![Page 23: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/23.jpg)
Assisting Clients in Producing ESI
• Catalog all client ESI before the meet and confer session takes place
• Three primary ways for clients to produce ESI
• Hire a professional third-party vendor to go on site and assist IT staff in collecting ESI
• The client gathers all data and sends it to the law firm
• Hire a professional third-party vendor to remotely collect ESI
![Page 24: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/24.jpg)
Document Formats
• Native format
• Associated file structure as defined by the original creating application
• Vendor-neutral image formats
• PDF (Portable Document Format) • Can associate metadata
• TIFF (Tagged Image File Format) • Does not preserve metadata
• Legacy data
• Information on obsolete computer media
![Page 25: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/25.jpg)
Metadata
• Information stored electronically in files that may identify the date, author, usage, comments, or other information about that file
• Can often be used to prove a theory of a case
• Two types – System metadata is information the computer
operating system creates and uses to track the location of the data on the hard drive
– Application metadata is information embedded within the specific file itself
![Page 26: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/26.jpg)
System Metadata
![Page 27: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/27.jpg)
Application Metadata
From To
Size of attachment
Attachment file name
Date and time email was sent
Used w
ith p
erm
issio
n fro
m
Mic
rosoft
© 2012 Delmar, Cengage Learning
![Page 28: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/28.jpg)
In-House Staff vs. Hiring Third-Party Vendors
• Three key factors to consider
– Amount of data to be produced
– Amount of time the party has to produce it
– Complexity of transferring the data itself
• Third-party vendors specializing in e-discovery can help in both producing and receiving documents, but can be expensive
![Page 29: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/29.jpg)
Services Third-Party Vendors Can Provide
• Harvesting data
– Collecting from the client’s information systems the data that must be produced
• De-duplication
– Marking or deleting records that are duplicates
• Data filtering
– Searching and culling data to find relevant information and reduce the size of the dataset
![Page 30: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/30.jpg)
Services Third-party Vendors Can Provide
• Processing data
– Converting data to a common file format for a unified database
• Viewing data
– Providing proprietary viewing software, allowing users to view documents in one central window regardless of the file format
![Page 31: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/31.jpg)
Computer Forensics and the Chain of Custody
• Computer forensics
– Used to recover, authenticate, or analyze electronic data
– Sometimes used to recover destroyed data or prove that data was intentionally destroyed
• Chain of custody
– Must be able to systematically trace ESI back to anyone who has had access to it
– Used to prove that access was never improper and that the ESI was not contaminated
![Page 32: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/32.jpg)
Ethical Considerations
• Legal professionals have an ongoing responsibility to: – Act in the best interests of their clients
– Act zealously for their clients
– Act competently for their clients
• Legal professionals may have an affirmative obligation to ensure that clients are aware of the dangers and opportunities that ESI presents
![Page 33: Dr. Laurie Dean-Newton Tuesdays 6:15pm-9:35pm R206](https://reader036.vdocument.in/reader036/viewer/2022081512/62a615cc7909a768234f4fe6/html5/thumbnails/33.jpg)
Next Week
• Read Chapter 7