Dr. Laurie Dean-Newton

Tuesdays

6:15pm-9:35pm

R206

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

System Metadata

Application Metadata

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© 2012 Delmar, Cengage Learning

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

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

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

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

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

Next Week

• Read Chapter 7