16491390 orange legal technologies considering meet and confer ebook 0609

8/8/2019 16491390 Orange Legal Technologies Considering Meet and Confer eBook 0609

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Considering Meet and Confer

Designed to provide both a general overview o Federal Rule o Civil Pro-

cedure 26() and planning considerations or the practical application oMeet and Coner requirements, Considering Meet and Coner containsnotes, articles and reerences to help educate and support legal andinormation technology proessionals as they consider Meet and Coner.

The Practical Application of Federal Rule of Civi l Procedure 26(f)

Developed by Orange Legal Technologies, Providers of the OneO Discovery Platform.


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Designed to provide both a general overview o Federal Rule 26( ) and planning considerations or thepractical application o Meet and Coner requirements, this document contains notes, articles and reer-ences to help support and educate legal proessionals as they consider Meet and Coner.

Considering Meet and Coner Page 3

Drivers, Denitions, Documentation and Dictionary Considerations

Understanding Electronically Stored Inormation - Page 11 Elements, Examination, Experts and Estimation Considerations

Understanding Electronic Discovery Tasks Page 17Collection, Analytics, Processing, Review and Production Considerations

Understanding Meet and Coner Tasks Page 29Preparation, Meeting and Follow-up Considerations

Translating Understanding into Execution Page 39Checklists, Case Law and Additional Reading Considerations

About Orange Legal Technologies Page 43

Orange Legal Technologies and the OneO Discovery Platorm

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Considering

Meet and Coner

meet and coner n. a requirement o courts that beore certain types o motions and/or petitions will be heard by the judge, the lawyers (and sometimes their clients) mustmeet and coner to try to resolve the matter or at least determine the points o con-ict. This has the benecial eect o resolving many matters, reducing the time or ar-guments, and making the lawyers and clients ace up to the realities o their positions.On the other hand, it also can be a total waste o time or the parties and their attorneys.

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General Denition o Meet and Coner1Denition: meet and coner n. a requirement o courts that beore certain types o motions and/or petitions will beheard by the judge, the lawyers (and sometimes their clients) must meet and coner to try to resolve the matter or atleast determine the points o conict. This has the benecial eect o resolving many matters, reducing the time orarguments, and making the lawyers and clients ace up to the realities o their positions. On the other hand, it also canbe a total waste o time or the parties and their attorneys.

Meet and Coner Characteristics

Dening in Approach

Collaborative in Nature

Preparation Intensive

Binding in Agreement

Key Points rom General Denition

Requirement

Pre-Motion/Petition

Meet to Determine and/Resolve Points o Conict

Objective o Accelerating Judicial Process

Meet and Coner and Electronic Discovery2

The meet-and-coner process is designed to allow both parties an opportunity to reach agreement on important issuesabout discovery early in the discovery process. The new ederal rules require that 21 days beore a Rule 16(b) schedul-ing conerence, the parties are to meet and coner to discuss discovery. In this meeting, they must develop a plan orthe preservation o data, documents and other evidence that may be important to discovery.

The meet and coner is evolving into a collaborative, rather than combative, approach to discovery in which both sideswork together to limit the costs and headaches o electronic discovery. A thorough understanding o client systems canhelp acilitate this, as can an understanding o the challenges production o electronic data poses (including privilege

waiver, orm and/or ormat o data, accessing backed-up data and so orth).

Its oten prudent to have a orensic expert or EDD consultant on hand to ascertain that any agreements are botheasible and appropriate. For example, speciying that all deleted les must be recovered or discovery may seema straightorward order, but this sort o overly broad directive can lead to escalating EDD costs. Its better to have anexpert available to guide the process and oer appropriate, cost-eective strategies and solutions.

Meet and Coner Drivers in Relation to eDiscoveryFederal Rules o Civil Procedure Rule 163

Rule 16(b) - parties must meet and coner at least 21 days beore the scheduling conerence which, in turn, must

occur within 120 days o ling a lawsuit.Rule 16(b) - scheduling order must include provisions or disclosure or discovery o electronically stored inorma-tion (ESI).

Federal Rule o Civil Procedure Rule 264(Discussion rom Rule 26 and Other Amendment to the Federal Rules o Civil Proceduredused en total with permission o Iron Mountain)

Rule 26(a) - explicitly denes ESI as discoverable.

The new Rule 26(a) explicitly denes ESI as a specic category o inormation to be disclosed. There is no longer anyambiguity about whether digital data constitutes a document. Businesses now have a clear responsibility to produceeRecords. These amendments also permit the requesting party to request that ESI be produced in specic ormats.The responding party can object to the request, but the parties must rst meet and coner in an attempt to resolve thedisagreement beore a motion to compel can be led. I need be, the court may order the orm o production.

1 Law.com Dictionary - http://dictionary.law.com/deault2.asp?selected=1235&bold=||||2 Law.com Technology Roadmap - http://www.law.com/jsp/legaltechnology/roadmapArticle.jsp?id=1158014995208&hubpage=Preservation3 eDiscovery 2.0 - http://www.clearwellsystems.com/e-discovery-blog/tag/rule-26/4 Rule 26 and Other Amendments to the Federal Rules o Civil Procedure - http://www.ironmountain.com/resources/crm/Rule26_WP_Web.pd f

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Companies thereore need to know exactly what ormats their ESI is stored in, what metadata is associated withthem, and what ormats they can reasonably be converted into.

Rule 26( ) - mandates early meet-and-coner sessions specically to resolve eDiscovery issues.

Among the most important o the newly amended FRCP or businesses is Rule 26(), which requires parties tomeet within 120 days o the ling o litigation, and at least twenty-one days prior to the scheduling conerence,specically to discuss eDiscovery issues. The purpose o this Rule is to avoid loss o ESI and ensure its usability andtimely production by resolving concerns up-ront. During these sessions, parties must make every eort to reachagreement on logistical issues, including relevant repositories and classes o inormation, production ormats, and

matters o privilege. Companies must promptly identiy all sources o ESI in their initial disclosures, meaning notonly e-mail servers and backup tapes, but also deleted data, data on systems no longer in use, and data in remoteor third-party locations. All o this data must be identied up-ront i the data will be used in claims or deenses. Areport must then be provided to the court, pursuant to a scheduling order.

Your ability to know and describe your system capabilities so your attorneys can negotiate reasonable time sched-ules and limits or production volume will be critical. Organizations that lack a comprehensive map o potentiallyrelevant records will be at a major disadvantage rom the outset, playing catch-up just when they should bedoing serious analysis o the case. Conversely, businesses that can produce accurate inventories o electronic datarepositories can save themselves millions o dollars in eDiscovery and settlement costs, and possibly even swaythe outcome o the proceedings.

Rule 26() also demands that parties give early attention to data preservation. Providers risk claims o spoliation o

evidence i litigation holds are not instituted quickly and eciently since production requirements will be knownup-ront. On the other hand, the ability to agree during meet-and-coner sessions on what must be preservedversus what can be disposed o per standard retention policies can save companies money and protect againstsubsequent spoliation claims.

Rule 26(b)(5) addresses inadvertent production o privileged inormation during eDiscovery.

The greater the volume o ESI produced in a lawsuit, the greater the likelihood that privileged inormation, suchas trade secrets or nancial inormation, may be inadvertently produced. The traditional ability to inspect all dataand lter out privileged inormation is simply not possible given the staggering quantity and variety o ESI thatcan be involved in large, complex litigations. For example, it is estimated that the average gigabyte o e-mail con-tains 100,000 printed pages o inormation, as compared to 3,000 pages or the average box o printed records.Hundreds o thousands o pages o ESI are now the norm in bigger cases.

Rule 26(b)(5) includes a new section covering the accidental production o privileged inormation. It permitsorganizations to retract (clawback) privileged inormation ollowing its discovery. Potential concerns regard-ing privilege are to be discussed during meet-and-coner sessions as part o the discovery plan. I inormationdeemed privileged is produced, the producing party can notiy the recipient o this assertion and the basis or it.The requesting party must return, sequester, or destroy the inormation promptly, and is barred rom disclosing ituntil the claim is resolved. Further, i the recipient has already disclosed the privileged inormation prior to noti-cation, it must take reasonable steps to retrieve it. In any event, the producing party must preserve the privilegedinormation until the litigation is resolved. Recipients can naturally dispute claims o privilege by submitting theinormation to the court or a ruling. The producer must make responsible attempts to avoid such disclosuressloppy production is not an excuse and may imply a waiver o privilege. Moreover, producers must assert claimso privilege within a reasonable time, again requiring a handle on the data. Courts will weigh these actors indetermining whether to waive or oreit a claim o privilege.

Rule 26(b)(2) - provides guidance regarding claims that ESI is unduly burdensome to produce.

In acknowledging that some inormation may be overwhelmingly dicult to retrieve (e.g., because the hardware/sotware required to restore it is obsolete, or the media it resides on is damaged), this rule species that a partyneed not produce ESI s it regards as not reasonably accessible because o undue burden or cost. I, ollowingmeet-and-coner sessions, a claim o reasonable inaccessibility remains unresolved, the requesting party canintroduce a motion to compel production to dispute the assertion. Likewise, the responding party can seek a pro-tective order rom the court barring production. In either case, however, the burden is on the responding party toprove that the inormation is not reasonably accessible. Further, i the requestor can demonstrate that there is justcause showing that the evidence should be produced, the court may then order its production. When might ESIbe deemed reasonably inaccessible?

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A range o actors will be involved, including:

The burden or expenses o producing outweighs the likely benet or relevance o the data.

The request is unduly cumulative or duplicative.

The quantity o data involved

A partys inability to obtain the same or equivalent inormation rom more accessible sources.

The magnitude o the issues at stake in the litigation.

The resources o the parties involved.

Federal Rule o Civil Procedure - Rule 34

Rule 34(a) addresses the scope o ESI to include inormation type and location.

Rule 34 (b) addresses and provides guidance concerning the production o ESI.

Key Points on Meet and Coner Drivers5

FRCP developed in 1938. The U.S. Federal Rules o Civil Procedure (FRCP) dene procedures or U.S.-basedlitigation. They date rom 1938 but recently have been updated to deal with electronic documents. Email is by

ar the most important o such documents.

FRCP currently comprised o 86 rules.

FRCP Amendments on December 1, 2006 address ESI requirements.

FRCP Rule 26( ) is the center o gravity or Meet and Coner. Rule 26()--the Meet and Coner rule--requiresthe parties in litigation to meet at an early stage to discuss the inormation they have and what they willshare. Thus, when a subpoena arrives, organizations requently must launch a highly disruptive emergencyresponse project.

5 Ferris Research, http://www.erris.com/?p=318586

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Meet and Coner Documents

Key Points in Relation to ESI - Form 351

Standardizes discovery agreements.

Designed to avoid delays centered on discovery.

Provides reminder/documentation o requirement to address ESI (Rule 26()).

Example Form 35. Report o Parties Planning Meeting

[Caption and Names o Parties]

1. Pursuant to Fed. R. Civ. P. 26( ), a meeting was held on ____(date)____ at ____(place)____ and was attended by:

____(name)____ or plainti(s)

____(name)____ or deendant(s) ____(party name)____

2. Pre-Discovery Disclosures. The parties [have exchanged] [will exchange by ____(date)____] the inormation re-quired by [Fed. R. Civ. P. 26(a)(1)] [local rule ____].

3. Discovery Plan. The parties jointly propose to the court the ollowing discovery plan: [Use separate paragraphs orsubparagraphs as necessary i parties disagree.]

Discovery will be needed on the ollowing subjects: ____(brie description o subjects on which discovery will beneeded).

All discovery commenced in time to be completed by ____(date)____. [Discovery on ____(issue or early discov-ery)____ to be completed by ____(date)____.)

Maximum o ____ interrogatories by each party to any other party. [Responses due ____ days ater service.]

Maximum o ____ requests or admission by each party to any other party. [Responses due ____ days ater service.]

Maximum o ____ depositions by plainti(s) and ____ by deendant(s).

Each deposition [other than o ________] limited to maximum o ____ hours unless extended by agreement o par-

ties.Reports rom retained experts under Rule 26(a)(2) due: rom plainti(s) by ____(date)____ rom deendant(s) by____(date)____.

Supplementations under Rule 26(e) due ____(time(s) or interval(s))____.

4. Other Items. [Use separate paragraphs or subparagraphs as necessary i parties disagree.]

The parties [request] [do not request] a conerence with the court beore entry o the scheduling order. The partiesrequest a pretrial conerence in __(month and year)__.

Plainti(s) should be allowed until ____(date)____ to join additional parties and until ____(date)____ to amend thepleadings.

Deendant(s) should be allowed until ____(date)____ to join additional parties and until ____(date)____ to amendthe pleadings.

All potentially dispositive motions should be led by ____(date)____.

Settlement [is likely] [is unlikely] [cannot be evaluated prior to ____(date)____] [may be enhanced by use o the ol-lowing alternative dispute resolution procedure: ________________].

Final lists o witnesses and exhibits under Rule 26(a)(3) should be due rom plainti(s) by ____(date)____ romdeendant(s) by ____(date)____.

Parties should have ____ days ater service o nal lists o witnesses and exhibits to list objections under Rule 26(a)(3).

The case should be ready or trial by ____(date)____ [and at this time is expected to take approximately ____(length

o time)____].

[Other matters.]

Date: ____________

1 Fios Case Law & Rules: Federal Rules o Civil Procedure - http://tinyurl.com/cyombw

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Meet and Coner Planning Checklist1(Content rom Prepare or an Efective Meet and Coner by Linda Kish, Kroll Consultant - used en total with permission o Kroll Ontrack)

To help ensure that all potential topics that may addressed during the Meet and Coner Conerence are consid-ered during pre-conerence planning, it is recommended that rms develop an internal planning checklist toguide them in their Meet and Coner planning. Key considerations or this checklist include:

1. Preservation Practices

2. Scope o Discovery

3. Accessibility

4. Production o Metadata

5. Costs & Burdens

6. Forms o Production

7. Privilege Issues & Waiver

8. Variations rom FRCP Rules

9. Inventory o Opponents IT Inrastructure

10. Other Ino that may be Important to eDiscovery

Additional details on the questions associated with these considerations are as ollows:

1. Preservation Practices

What is being done to preserve ESI?

Is a protective order necessary?

2. Scope o Discovery

Will there be any deviations rom the deault initial disclosures specied in Rule 26(a)?

What le types and time range is the opposing party seeking?

Who are the main data custodians the opposing party is interested in?

What will be the timing or exchanging discoverable ESI?

3. Accessibility

What type o data is the opposing party interested in?

(Backup tapes? Hard drives? Servers? Removable media? Deleted data?)

How easy will it be to access this data?

Will the use o an e-evidence expert be necessary?

4. Production o Metadata

What elds will be exchanged or the various le ormats?

5. Costs & Burdens

Who will bear the costs associated with gathering, restoring, and producing the ESI?

6. Forms o Production

In what ormat or ormats will parties produce the ESI be?

7. Privilege Issues & Waiver

How will parties handle inadvertently produced privileged documents?8. Variations rom FRCP Rules

Are there any local rules that apply in the jurisdiction?

1 Kroll Ontrack, Prepare or an Eective Meet and Coner (Linda Kish, Esq. Kroll) http://www.krollontrack.com

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9. Inventory o opponents IT Inrastructure

Which operating systems and sotware packages were used to develop key data?

Are those systems still in use?

What are the opponents document retention policies? Are they being enorced?

10. Other

Is there any other inormation that may be important to the e-discovery activity in the case?

Meet and Coner DictionaryNeed Agreed Upon ESI Vocabulary

To ensure a common understanding o ESI Terms.

To serve as a reerence point or clarication o ESI denition issues.

To simpliy and accelerate discussion during the 26( ) Meet and Coner Conerence.

Potential Reerences or ESI Terms

American Document Management Glossary o Terms @ http://www.amdoc.com/glossary.php

EDRM Glossary @ http://www.edrm.net/wiki/index.php/Glossary

The Sedona Conerence Glossary @ http://www.thesedonaconerence.org/content/miscFiles/TSCGlossary_12_07.pd

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Understanding ESI

While not specically dened in the FRCP, electronically stored inormation,or ESI, is dened in the November 2006 issue o The Third Branch (News-letter o the Federal Courts) simply as all inormation in computers.

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Understanding Electronically Stored Inormation

The Elements o ESI1What is Electronically Stored Inormation?

While not specically dened in the FRCP, electronically stored inormation, or ESI, is dened in the November 2006issue o The Third Branch (Newsletter o the Federal Courts) simply as all inormation in computers.

What is Inormation?

From a technology perspective, inormation is dened as the summarization o data. Technically, data are raw actsand gures that are processed into inormation, such as summaries and totals. But since inormation can also be theraw data or the next job or person, the two terms cannot be precisely dened, and both are used interchangeably.

What Is Data?

Factual inormation, especially inormation organized or analysis or used to reason or make decisions.

Computer Science. Numerical or other inormation represented in orm suitable or processing by computer.

Data Scope (What is the scope o the data in question?)

Entity Scope - Entities that may have had individuals involved in the creation, review, and/or response o data thatmay contain relevant inormation or the matter at hand.

Custodian Scope - Individuals who may have been involved in the creation, review, and/or response o data thatmay contain relevant inormation or the matter at hand.

Data Steward Scope - Individuals who have Inormation Technology management responsibilities or the entitiesand individuals determined to be relevant to the matter at hand and/or individuals who maintain access rights tothe applications and equipment used by these entities and organizations.

Geographical Scope - The geographical locales o the entities and individuals that may have been involved in thecreation, review, and/or response o communications and/or documents relevant to the matter at hand as wellas the locales o the equipment used to support creation, transmission, review, and storage o these communica-tions and/or documents.

Time Frame Scope - The period o time in which relevant inormation may have been created, reviewed, and/or

responded to or the matter at hand.

Volume Scope - The estimated volume o data that may contain relevant inormation or the matter at hand.

Data Structure (What is the structure o the data?)

Unstructured - Unstructured data (or unstructured inormation) reers to masses o (usually) computerizedinormation in which every bit o inormation does not have an assigned ormat and signicance. Examples ounstructured data may include audio, video and unstructured text such as the body o an email or word proces-sor document. Unstructured data represents approximately 85% o enterprise data.

Structured - Structured data (or structured inormation) reers to masses o (usually) computerized inormationin which every bit o inormation has an assigned ormat and signicance. Examples o structured data mayinclude databases such as SQL or Access. Structured data represents approximately 15% o enterprise data.

Data Format (What is the ormat o the data?)

Still Image - Images that convey their meaning in visual terms, e.g. pictorial images, photographs, posters, graphs,diagrams, documentary architectural drawings. Formats or such images may be bitmapped (sometimes calledraster), vector, or some combination o the two. A bitmapped image is an array o dots (usually called pixels, rompicture elements, when reerring to screen display), the type o image produced by a digital camera or a scanner.Vector images are made up o scalable objectslines, curves, and shapesdened in mathematical terms, otenwith typographic insertions.

Sound - Media-independent sound content that can be broken into two ormat sub-categories. The rst sub-cate-gory consists o ormats that represent recorded sound, oten called waveorm sound. Such ormats are employedor applications like popular music recordings, recorded books, and digital oral histories. The second sub-categoryconsists o ormats that provide data to support dynamic construction o sound through combinations o sot-ware and hardware. Such sotware includes sequencers and trackers that use data that controls when individualsound elements should start and stop, attributes such as volume and pitch, and other eects that should beapplied to the sound elements. The sound elements may be short sections o waveorm sound (sometimes calledsamples or loops) or data elements that characterize a sound so that a synthesizer (which may be in sotware or

1 Orange Legal Technologies: http://orangelt.us/services/collection-services/

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hardware) or sound generator (usually hardware) can produce the actual sound. The data are brought togetherwhen the le is played, i.e., the sounds are generated in a dynamic manner at runtime. This second sub-category issometimes called structured audio.

Moving Image - A variety o media-independent digital moving image ormats and their implementations. Someormats, e.g., QuickTime and MPEG-4, allow or a very wide range o implementations compared to, say, MPEG-2,an encoding ormat whose possible implementations are relatively more constrained.

Textual - Content works consisting primarily o text.

Web Archive

- Content in ormats that might hold the results o a crawl o a Web site or set o Web sites, a dynamicaction resulting rom the use o a sotware package that calls up Web pages and captures them in the orm dis-seminated to users.

Generic - Content in widely acceptable generic ormats to include but not limited to specications or wrappers(e.g., RIFF and ISO_BMFF), bundling ormats (e.g., METS and AES-31), and encodings (e.g., UTF-8 and IEEE 7541985).

Data State (What is the state o the data?)

Active State - Active Data is inormation residing on the hard drives or optical drives o computer systems, that isreadily visible to the operating system and/or application sotware with which it was created and is immediatelyaccessible to users without deletion, modication or reconstruction.

Static State

- Static Data (or Archival Data) is inormation that is not directly accessible to the user o a computersystem but that the organization maintains or long-term storage and record keeping purposes.

Static data may be written to removable media such as a CD, magneto-optical media, tape or other electronic storagedevice, or may be maintained on system hard drives in compressed ormats.

Residual State : Residual Data (sometimes reerred to as Ambient Data) reers to data that is not active on a com-puter system. Residual data includes (1) data ound on media ree space; (2) data ound in le slack space; and (3)data within les that has unctionally been deleted in that it is not visible using the application with which the lewas created, without use o undelete or special data recovery techniques.

Data Network (How does one Connect to the data?)

Non-Networked : Data is not interconnected to a group o computers.

Personal Area Network (PAN) : A personal area network (PAN) is a computer network used or communicationamong computer devices close to one person. Some examples o devices that may be used in a PAN are printers,ax machines, telephones, PDAs, or scanners. The reach o a PAN is typically within about 20-30 eet (approximately4-6 Meters). PANs can be used or communication among the individual devices (intrapersonal communication), oror connecting to a higher level network and the Internet (an uplink).

Local Area Network (LAN) : A network covering a small geographic area, like a home, oce, or building. CurrentLANs are most likely to be based on Ethernet technology.

Campus Area Network (CAN) : A network that connects two or more LANs but that is limited to a specic and contig-uous geographical area such as a college campus, industrial complex, or a military base. A CAN, may be considereda type o MAN (metropolitan area network), but is generally limited to an area that is smaller than a typical MAN.

Metro Area Network (MAN)

: A Metropolitan Area Network is a network that connects two or more Local AreaNetworks or Campus Area Networks together but does not extend beyond the boundaries o the immediate town,city, or metropolitan area. Multiple routers, switches & hubs are connected to create a MAN.

Wide Area Network (WAN ): A WAN is a data communications network that covers a relatively broad geographic area(i.e. one city to another and one country to another country) and that oten uses transmission acilities provided bycommon carriers, such as telephone companies.

InterNetwork: Two or more networks or network segments connected using devices that operate at layer 3 (thenetwork layer) o the OSI Basic Reerence Model, such as a router. Any interconnection among or between public,private, commercial, industrial, or governmental networks may also be dened as an internetwork. In modernpractice, the interconnected networks use the Internet Protocol. There are at least three variants o internetwork,depending on who administers and who participates in them:

Intranet: An intranet is a set o interconnected networks, using the Internet Protocol and uses IP-based toolssuch as web browsers, that are under the control o a single administrative entity. That administrative entity closesthe intranet to the rest o the world, and allows only specic users. Most commonly, an intranet is the internal net-work o a company or other enterprise.

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Extranet: An extranet is a network or internetwork that is limited in scope to a single organization or entity butwhich also has limited connections to the networks o one or more other usually, but not necessarily, trustedorganizations or entities (e.g. a companys customers may be given access to some part o its intranet creating inthis way an extranet, while at the same time the customers may not be considered trusted rom a security stand-point). Technically, an extranet may also be categorized as a CAN, MAN, WAN, or other type o network, although,by denition, an extranet cannot consist o a single LAN; it must have at least one connection with an externalnetwork.

The Internet: A specic internetwork , consisting o a worldwide interconnection o governmental, aca-

demic, public, and private networks based upon the Advanced Research Projects Agency Network (ARPANET)developed by ARPA o the U.S. Department o Deense also home to the World Wide Web (WWW) and reerredto as the Internet with a capital I to distinguish it rom other generic internetworks.

Intranets and extranets may or may not have connections to the Internet. I connected to the Internet, the intranet orextranet is normally protected rom being accessed rom the Internet without proper authorization. The Internet itselis not considered to be a part o the intranet or extranet, although the Internet may serve as a portal or access to por-tions o an extranet.

Data Storage Network (How does one get to Active State data?)

Direct Attached Storage (DAS) : Direct-attached storage (DAS) reers to a digital storage system directly attached toa server or workstation, without a storage network in between. It is a retronym, mainly used to dierentiate non-networked storage rom SAN and NAS.

Network-Attached Storage (NAS): Network Attached Storage (NAS) is a le-level computer data storage connectedto a computer network providing data access to heterogeneous network clients.

Storage Area Network (SAN): A storage area network (SAN) is an architecture to attach remote computer storagedevices (such as disk arrays, tape libraries and optical jukeboxes) to servers in such a way that, to the operatingsystem, the devices appear as locally attached.

Data Storage Media (How does one maintain the Static State data?)

Semi Conductor Based Storage Media (Memory Cards, USB Flash Drives, PDAs, Digital Audio Players, Digital Cam-eras, Mobile Phones, Copiers)

Magnetic Based Storage Media (Floppy Disk, Hard Disk, Magnetic Tape)

Optical and Magneto Optical Storage Media (CD, CD-ROM, DVD, BD-R, BL-RE, HD DVD, CD-R, DVD-R, DVD+R, CD-RW, DVD-RW, DVD+RW, DVD-RAM, UDO)

Data Volume (How much data will be acted upon?)

Uncompressed - Data not having undergone a process o transormation rom one representation to another,smaller representation rom which the original, or a close approximation to it, can be recovered.

Compressed - Data having undergone a process o transormation rom one representation to another, smallerrepresentation rom which the original, or a close approximation to it, can be recovered.

Data Encryption (Is the data encrypted?)

Data Not-Encrypted - Data not having undergone a procedure that renders the contents o a computer message

or le unintelligible to anyone not authorized to read it. The data is encoded mathematically with a string o char-acters called a data encryption key.

Data Encrypted - Data having undergone a procedure that renders the contents o a computer message or leunintelligible to anyone not authorized to read it. The data is encoded mathematically with a string o characterscalled a data encryption key.

Data Code Format (What capabilities will be needed to display inormation?)

Unicode Support - Unicode Support provides a unique number or every character, no matter what the platorm,no matter what the program, no matter what the language.

Non-Unicode Support - Data Code Format does not provide a unique number or every character regardless oplatorm, program, or language.

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Data Output (How will data reports and/or les be provided to requestor?)

Custom Reports (Based On Task)

Native Files

TIFF Files

PDF Files

Load Files (Specics Provided By Requestor)

Custom Files (Specics Provided By Requestor)

Data Storage Requirements (How will the data be stored ater being acted upon?)

Hot - Data is stored in an active state and is immediately accessible to end users.

Warm - Data is stored in an active state not immediately accessible to end users.

Cold - Data is stored in a static state.

Destruct - Data is destroyed.

As one begins to understand these collections considerations, one can then begin to assign economic values (time/money) to the potential approaches to get the data and make it available or all parties involved in a specic mat-

ter. Ranging rom extremely general and subjective on one end o the spectrum to very specic and objective on theother, this economic value can also serve as the basis or discussing rom a position o understanding whether or notESI is accessible or not-reasonably-accessible rom a case-specic legal perspective.

ESI Technology Focus Framework

Creation - enables the creation o ESI.

Connectivity - inrastructure that connects communication and storage nodes o ESI.

Communication - enables the dissemination o and collaboration on ESI.

Conduct (Management) enables unctional area management o ESI.

Understanding Electronically Stored Inormation

- ExaminationWhat are the general categories o ESI in relation to ESI examination?

Accessible*: Inormation deemed accessible is stored in a readily usable ormat. (Zubulake v. UBS Warburg)

Unreasonably Accessible: Inormation not stored in a reasonable usable ormat.

What are the potential preservation and production implications o accessible/non-accessible ESI?

Accessible - Need to preserve and to produce.

Unreasonably Accessible - Need to preserve and understand requirements or production.

What electronic media may need to be examined or ESI*?

Active, Online Data (Typically Accessible)

Nearline Data (Typically Accessible)

Ofine Storage/Archives (Sometimes Accessible, Sometimes Unreasonably Accessible)

Backup Tapes (Typically Unreasonably Accessible)

Erased, Fragmented, or Damaged Data (Typically Unreasonably Accessible)

* Continuum o Accessibility is not dened in the FRCP as it may change over time.

Additional Reading: E-Discovery - The Long and the Short o Accessibility . Duane Morris E-Discovery Alert, JohnCoughlin, April 2007, http://www.duanemorris.com/alerts/alert2475.html.

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Understanding Electronically Stored Inormation - ExpertsWhy the need or determining Meet and Coner eDiscovery experts?

Allows or the selection o a primary eDiscovery advisor or the responsible attorney o record.

Allows or the selection o an eDiscovery liaison/acilitator or coordination and communication.

Allows or the proactive selection and training o Rule 30(b)(6) experts.

Who might be selected as an eDiscovery expert/liaison?

Attorney (In-House or Outside Counsel)

Third Party Consultant

Company/Organization Employee

What are the typical characteristics o an expert eDiscovery liaison?

Technical amiliarity with partys electronic systems and capabilities.

Technical understanding o eDiscovery.

Familiarity with and ability to establish chain o custody or all ESI.

Prepared to participate in eDiscovery dispute resolutions and litigation.

Understanding Electronically Stored Inormation - EstimationPages in a MB/GB e-Discovery Calculator: This ree online calculator inputs Megabytes or Gigabytes o variousle types (e.g., Outlook email PSTs, Word, Excel and other native les, PDFs, TIFFs, etc.) estimates equivalent pagesand boxes. This calculator is useul or calculating e-Discovery document review costs and preparing litigationbudgets. http://www.lexbe.com/hp/Pages-Megabyte-Gigabyte.aspx

eDiscovery Cost Calculator Mimosa Systems: Exchange-related discovery can be extremely costly to orga-nizations when all actors and costs are considered. Exchange-related discovery costs include the cost to nd,recover and review responsive emails rom network storage, the Exchange database, backup tapes and custodian

workstations and removable media. Also, the largest cost or most organizations is the legal review o responsiveemails. http://www.mimosasystems.com/html/ediscovery_worksheet.htm

JurInnov Electronic Discovery Calculator - This tool uses broad assumptions to determine data size and projectcost and is only intended to illustrate review cost savings attributable to electronic discovery services. Everyelectronic discovery project is dierent. As such, actual data sizes and costs will vary based on project needs andcircumstances. Calculations exclude travel time and expenses. http://www.jurinnov.com/electronic_discovery_calculator/

Backup Tape Liability Management Service - This calculator can help determine the amount o potential sav-ings in o-site storage o tape cartridges i you implemented RenewDatas Backup Tape Liability ManagementService. http://www.renewdata.com/backup-tape-liability-calc.php

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Understanding

Electronic DiscoveryTasks

The discovery o electronic data will play an increasingly critical role in mostbusiness and commercial litigation cases, and will necessarily aect theway parties conduct litigation, particularly discovery. The increasing capac-ity by which data may be amassed and stored electronically has the abili-ty to turn a seemingly simple discovery request into a litigation sideshow.

Aisha Shelton Adam

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Understanding Electronic Discovery Tasks - Collection1What is Collection? The collection o data can be simply dened as the acquisition o potentially relevant electroni-cally stored inormation (ESI) in the conduct o electronic discovery.

Key Collection Considerations:

What is the scope o the data in question?1.

What is the structure o the data?2.

What is the ormat o the data?3.

What is the state o the data?4.

How does one Connect to the data?5.

How does one get to Active State data?6.

How does one maintain the Static State data?7.

How much data will be acted upon?8.

Is the data encrypted?9.

What capabilities will be needed to display inormation?10.

How will data reports and/or les be provided to requestor?11.

How will the data be stored ater being acted upon?12.

Understanding Electronic Discovery Tasks - AnalyticsWhat is Analytics? Analytics in the realm o electronic discovery is the leveraging o data through the use o a par-ticular unctional process to enable context-specic insight that is actionable. 2

Why is Analytics important?

Case preparation by senior level attorneys is the part o the electronic discovery process that begins to translate

relevant electronic inormation into organized and prioritized evidence to support a clients legal position. With theadvent o advanced search technologies, these senior legal proessionals have been able to improve their eciency inorganizing evidence as they build their respective cases.

However, as the prolieration o electronic communications continues, these same proessionals need even morecapability to rapidly and accurately evaluate large volumes o relevant inormation discovered during review. With theintroduction o analytics into the electronic discovery process, senior level attorneys can now move beyond advancedsearch in their case preparation and can begin to organize, understand, and prioritize inormation and inormationpatterns to make even quicker and more ecient case decisions. This early organization, understanding, and prioriti-zation o inormation also helps decrease the size o data sets that are to be ully processed, reviewed, and produced,thus decreasing costs throughout downstream processes.

What are some o the key tasks in analysis?

Locating o data to be analyzed.

Indexing o located data.

Searching o indexed data.

What are some o the key ways in which data can be located prior to analysis?

Automated Network Discovery O Devices/Repositories

Online/Inline Accessibility To Workstations, Email Servers, File Servers, and Associated Archives

Tape Restoration (Non-Native)

Key indexing eatures or analyzing data include such capabilities as indexing by:

Data Clusters

Discussion Threads

1 Orange Legal Technologies: http://orangelt.us/services/collection-services/2 Gartner Research Denition o Analytics adjusted or eDiscovery.

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eDiscoveryTasks

Communication Groups

Topic Classications

File Receivers

Key search eatures or analyzing indexed data are rapidly increasing and include searching by:

Boolean Operators

Concepts

Fuzzy Logic

Macros

Numeric Ranges

Phrases

Phonics

Proximity (And Directed Proximity)

Stemming

Synonym Searching

Thesaurus Searching

Wildcards

Understanding Electronic Discovery Tasks - Processing3What is Processing?

In the realm o electronic discovery, Processing is any operation or set o operations which is perormed upondata, whether or not by automatic means, such as collection, recording, organization, storage, adaptation oralteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available,

alignment or combination, blocking, erasure or destruction.4

Why is Processing important?

The principal objective o electronic discovery processing is to prepare relevant les or ecient and expedientreview (in most instances by attorneys), production and subsequent use while ensuring that the techniques andprocesses used are both deensible with respect to clients legal obligations and appropriately cost-eective andexpedient in the context o the matter.

What are the major tasks that take place in electronic discovery processing?

While there are many ways to dene, describe, and organize the tasks that take place in electronic discoveryprocessing, or the purpose o this discussion we will ocus on the ollowing nine major tasks and how they inter-relate to accomplish electronic discovery processing:

Chain o Custody Security and Tracking

Data Staging

Data Filtering

Deduplication

Metadata Extraction

Full Text Extraction

Exception Handling

Data Conversion

Load File Production

3 Orange Legal Technologies Processing: http://orangelt.us/services/processing-services/4 The Sedona Conerence Glossary, December 2007.

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Chain o Custody Security and Tracking

Dened by The Sedona Conerence as the documentation and testimony regarding the possession, movement,handling and location o evidence rom the time it is obtained to the time it is presented in court; used to provethat evidence has not been altered or tampered with in any way; necessary both to assure admissibility andprobative value, Chain o Custody is the part o electronic discovery processing that ensures the evidence isauthentic.

By developing, documenting, and tracking the physical media that contains electronically stored inormation(ESI) throughout the entire electronic discovery process can help organizations ensure their evidence is viewed

as authentic. Additionally, just as physical media containing electronic documents must be treated as evidence,the same rule holds true or each individual le.

Automation o technical chain o custody activities can help in the substantiation o an exact process les gothrough prior to admission in a case. The benets o automation can be even greater when the case consists omillions o les and automation ensures each le goes through the exact same process.

Data Staging

Data Staging is the process by which original ESI les are copied, isolated, and stored in a orensically sound man-ner or uture use.

This staging typically occurs in three phases:

1. Copying and storage o original ESI les on a closed and isolated network le server.2. Storage o original media and ESI les in a orensically sound manner.

3. Storage o copied ESI les or use in urther electronic discovery processing.

Data Filtering

Data Filtering consists o the process o identiying specic data or extraction based on specic parameters.Filtering can occur at many dierent levels to include:

System File Filtering: This type o ltering is designed to exclude those les known as system les rom theltering results data set.

Data Range Filtering: This type o ltering is designed to either include or exclude prescribed date and time

ranges rom the ltering results data set.Extension Filtering: This type o ltering is designed to either include or exclude specic les based on theirextension and typically includes le type validation.

Custodian Filtering: This type o ltering is designed to either include or exclude specic custodians rom theltering results data set.

Key Word Filtering: This type o ltering is commonly reerred to as keyword search and is designed to lterdata by prescribed keywords and/or keyword driven concepts.

Deduplication

Deduplication is the process o identiying and segregating those les that are exact duplicates o one another.The goal is to provide a deliverable that contains one copy o each original document, while maintaining the

inormation associated with each instance o that document within the collection.

Several ways duplicates can be identied are:

A combination o metadata inormation can be compared to match les.

An electronic ngerprint o each le can be taken and compared using a mathematical hashing algorithmsuch as MD5 Hash, SHA-1, or SHA-180.

In some cases, a hashing algorithm is used in combination with metadata.

In addition to deduplication, the advent near-deduplication technologies allow or an even higher level o datadeduplication as identiy les that are materially similar are not bit-level duplicates. These near-deduplicationtechnologies help identiy and group/tag electronic les with near duplicate similarities, yet some dierences in

terms o content or metadata, or both. Examples include document versions, emails sent to multiple custodians,dierent parts o email chains, or similar proposals sent to several clients.

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Metadata Extraction

Metadata are used to describe data or inormation. Metadata can describe just about anything you nd on acomputer, and the term is oten used to reer to inormation about things that arent on the computer.

The National Inormation Standards Organization (NISO) denes metadata as structured inormation thatdescribes, explains, locates, or otherwise makes it easier to retrieve, use, or manage an inormation resource.

The World Wide Web Consortium ( W3C) denes metadata as machine understandable inormation or theweb .

The Federal Geographic Data Committee (FGDC) denes metadata as describing, the content, quality, condi-tion, and other characteristics o data.

The Sedona Conerence (TSC) denes metadata as Data typically stored electronically that describes char-acteristics o ESI, ound in dierent places in dierent orms. Can be supplied by applications, users or the lesystem.

Metadata can describe how, when and by whom ESI was collected, created, accessed, modied and how it isormatted. Can be altered intentionally or inadvertently. Certain metadata can be extracted when native les areprocessed or litigation. Some metadata, such as le dates and sizes, can easily be seen by users; other metadatacan be hidden or embedded and unavailable to computer users who are not technically adept. Metadata is gen-erally not reproduced in ull orm when a document is printed to paper or electronic image.

Put simply, metadata is data about data. It provides a context or data, ideally machine-readable.Metadata is extracted and archived as part o processing the source data so that it is available during review.Although metadata may not be used during processing, it is still critical that it be maintained or purposes oelectronic discovery. I not, the integrity and authenticity o the data can be questioned.

Full Text Extraction

Full text extraction consists o the automated and/or non-automated processes o retrieving text rom electronictext, hard copy, and/or sound les and presenting the data in a orm suitable or urther eDiscovery processing.

The extraction o data rom electronic les commonly takes one o several paths:

Electronic Text To Electronic Text Via Text Extraction Engines

Electronic Images To Electronic Text Via OCRHard Copy Images To Electronic Text Via OCR

Audio Files To Electronic Text Via Sound Extraction Engines

These electronic les typically range rom e-mail (and attachments), databases, text documents, spreadsheets,text messages, instant messages, to digital voice mail messages all o which are considered electronically storedinormation (ESI) and are potentially discoverable under current Federal Rules o Civil Procedure.

Exception Handling

As in any process, there are times when standard processes are not eective in completing a task.

In electronic discovery processing, the extraction o ull text is no exception to this act.

With that act in mind, most organizations have what is commonly reerred to as an exception handling processthat allows or urther, non-standard text extraction tasks and also ensures the ull documentation and reportingo les that cannot be successully processed.

Data Conversion

Ater electronically stored inormation (ESI) has been processed rom the Chain o Custody stage to the FullText Extraction Stage, the ESI is usually converted into a normalized ormat that allows or the review o theinormation by legal proessionals.

Typical ESI conversions are to ormats that include:

Tagged Image File Format or TIFF: An electronic copy o a document in the orm o an image, and as suchcontains no embedded text, onts, images, or graphics. TIFFs do not retain metadata rom a source electronicdocument.

Portable Document Format or PDF: Developed by Adobe Systems, Inc., PDF is the de acto standard orthe exchange o electronic documents. PDF preserves the onts, images, graphics, and layout o any sourcedocument, regardless o how the original document was created. PDF les can be shared, viewed, and

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printed with Acrobat, a viewer application available ree rom Adobe Systems. Documents can be convertedto PDF using sotware products created by Adobe and others. Depending on how they are created, PDFs canalso be searchable PDF, either by retaining text rom the source document or by having a source image leconverted by OCR. Depending on capture methodology, PDFs may retain some metadata.

Additionally, there are times when legal proessionals chose not convert ESI into TIFF or PDF ormats. In thosesituations they may chose ultimately review ESI in its original ormat commonly reerred to as a Native Formator Native File. Simply dened, a Native File is an electronic document produced as it was originally maintainedand used.

Load File Production

In the last phase o electronic discovery processing, data is exported to a desired review tool ormat through theproduction o Load Files. Dened by The Sedona Conerence as a le that relates to a set o scanned images andindicates where individual pages belong together as documents, a load le may also contain data relevant tothe individual documents, such as metadata and coding data. To ensure usability by reviewers, load les must beobtained and provided in prearranged ormats to ensure transer o accurate and usable images and data.

When the reviewers opt to use TIFF or PDF ormats, two load les are typically generated. The rst load lecontains a record entry or each document and its associated metadata as well as parent-child relationships. Asecond load le is also generated and it links all TIFFs or PDFs to each record in the rst load le. These two loadles are then delivered, along with all o the associated TIFF or PDF les, to the reviewers so that the les can beimported into a selected review application.

I the review involves native les, then the export process will generate a single load le that contains a recordentry or every native le and all o its associated metadata. The load le also contains document relationshipssuch as parent-child and a link to the native le itsel. Next, the native les are gathered and built into a structurethat is compatible with the load le generated so that when the native le link is selected during review, theproper native le appears.

Why is Processing important? Reprise

As stated earlier, the principal objective o electronic discovery processing is to prepare relevant les or ecientand expedient review (in most instances by attorneys), production and subsequent use. Through this overviewo electronic discovery processing, the hope is that you will have enough inormation to ask the right questionsand to evaluate the presented process tasks so as to ensure that the techniques and processes used in your spe-cic electronic discovery matters are deensible with respect to clients legal obligations as well as appropriately

cost-eective/expedient in the context o the matter.

Understanding Electronic Discovery Tasks - Review5What is Review?

In the realm o electronic discovery, Review can be dened as the culling process that produces a dataset opotentially responsive documents that are then examined and evaluated or a nal selection o relevant and/orresponsive documents and assertion o privilege, condentiality, etc., as appropriate.

Additionally, On-line Review enables the culled dataset to be accessed via PC or other terminal device via a localnetwork or remotely via the Internet. Oten, the On-Line Review process is acilitated by specialized sotware that

provides additional eatures and unctions which may include: collaborative access o multiple reviewers, secu-rity, user logging, search and retrieval, document coding, redaction, and privilege logging.

Why is Review important?

The principal objective o review is to determine the relevancy and/or responsiveness o les or ecient andexpedient production and subsequent use. This determination must be accomplished while ensuring that thetechniques and processes used are both deensible with respect to clients legal obligations and appropriate withrespect to cost-eectiveness and expediency.

As the legal review o electronically stored inormation (ESI) remains the single most nancially expensive por-tion o the electronic discovery process - in act, depending on ones source o reerence, the cost o review cancomprise up to 80% o the total cost o eDiscovery it is important to understand the major phases o documentreview, the key characteristics o document review tools, and the key eatures o document review tools in orderto maximize results while controlling costs.

5 Orange Legal Technologies Review: http://orangelt.us/services/review-services/

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What are the two major phases o electronic discovery document review?

While there are many ways to dene, describe, and organize the phases that take place in electronic discoveryreview, or the purpose o this discussion we will ocus on the ollowing two phases o review and how they inter-relate:

First Level Review

Second Level Review

Document review in the context o litigation is done in two levels. The rst level o document review is the

discovery phase and rst part in any litigation. This process is perormed ater receiving the legal Request orproduction o documents. During this process the objective is to reduce the document set into a workableand responsive data set. Even though it is common or e-discovery best practices to have reduced a data set byalmost 70%, there still may remain millions o documents to be reviewed. This is because the total quantity odocuments has multiplied several times over the years.

In the second level o document review these workable documents are reviewed more seriously by seniors toensure relevancy, authenticity, accessibility, and to prevent the inadvertent production o privileged documents.

First Level Review

The primary purpose o rst level document review typically to review documents and determine whether ornot theyre responsive or non-responsive as they pertain to a specic legal case or issue. In essence, rst level

document review orms part o the discovery phase o litigation. It is perormed prior to producing and aterreceiving documents pursuant to a legal Request or Production o Documents. Its the initial review phase thathelps narrow the document set to a responsive and workable data set or later, more senior review. Litigationaside, aspects o rst level document review are also routinely perormed in matters o regulatory complianceand corporate due diligence.

Second Level Review

Second Level Review, sometimes reerred to as Privilege Review, is one o the most critical and sensitive aspectso the document review process and usually involves the use o senior reviewers and/or review by the litigatorsactually involved in the matter under review.

In addition to ensuring a second set o eyes are involved in the evaluation o documents under review, secondlevel reviewers are key in preventing the inadvertent production o privileged documents productions that can

result in waiver o privilege or the produced materials. I these protections are waived, any privileged documentsdisclosed may be deemed waived or all purposes, not only as it relates to the current matter but also as a basisor new civil lings. While the Federal Rules o Civil Procedure do provide some structure to resolve the dispute ia party inadvertently produces privileged materialand noties the adversarya much saer strategy is to makesure that privileged documents are not produced in the rst place.

What are the key characteristics o viable document review tool (product or service)?

Implementation: Review tools should be able to be quickly set up and customized (via secure Internet connec-tion) or immediate use by reviewers in multiple geographical locations.

Scalability: Review tools should allow the client to take ull advantage o all available processing power regard-less o the size o the data set being reviewed or the complexity o the review queries. The investment protec-tion provided by scalable and centralized review architecture ensures that growing capacity requirements do notadversely aect review capability.

Centralization: Review tools should allow or time ecient or complex searches against large volumes o docu-ments rom centralized review architecture.

Security: Review tools should be secured and supported with orensically sound processes and protocols orboth physical and digital security.

Usability: Review tools should be able to be easily accessed and intuitively used by multiple reviewers, rommultiple locations, potentially on dierent review teams.

These primary characteristics o review tools serve as the basis or legal proessionals to control electronic data,legal teams, and IT spending in the overall review process. In addition to these characteristics, viable reviewtools typically share a common set o eatures that are designed to support these characteristics. Examples othese eatures are provided in the ollowing section.

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What are some o the key capabilities o a viable document review tool (product and/or service)?

While there are many eatures that are necessary or time ecient and cost eective document review, the ol-lowing eatures are ones that appear to be present in todays leading review tools:

Intuitive to Use

Built or Speed

Robust Security

Workow Centric

Robust Reporting

Client Managed

Strong Collaboration

Allows Batch Foldering

Provides Tag Rules

Conict Checking and Management

Isolates Documents

Native/Image Review and Redaction Capabilities

Searching Capabilities

Message Thread Conversation Grouping

Parent/Child Association

Duplicate Identication

Comment Section

Role Management

Review Workow Management

Privilege Log Workow Management

Production Workow Management

Simplicity in Printing

Allows Production

Intuitive to Use

The review tool should be designed or ease o use by everyone rom the client administrator to the ultimate enduser. Users should be able to quickly navigate through the tool minimizing the time and eort required to learnhow to use the application.

Built or SpeedThe review tool should be designed to handle large, ast-paced document reviews and any type o litigation orsecond request reviews.

Robust Security

The review tool should be secure so as to maintain privilege, protect trade secrets and comply with regulations.End user access should be restricted on a by eature, eld, document, older, or tag basis.

Workow Centric

A workow process and methodology should be used to coordinate people, documents and technology. Thetool should also create an audit trail o activities and access, and enable management o the roles, responsibili-ties, tasks and processes or each type o user within a review.

Robust Reporting

Various and customizable reports should be able to be generated by the client or nearly every component o thereview and production. For example, clients should be able to receive and review custom daily reports, permis-sion reports, detailed project reports by client, case, or database, admini log reports, and orecasting reports.

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Client Managed

The review tool should allow the client to perorm most unctions within the system, including creation o users,assignment o permissions, creation o tag and conict rules, generation o productions and privilege logs, gen-eration o various reports, management o reviewer assignments, and denition o batch oldering schemes.

Strong Collaboration

The review tool should provide a shared workspace environment that is accessible anytime, anywhere with anInternet connection. Collaboration support should include the ability to view documents simultaneously and

through threaded comment discussions with a chat eature that can be locked down per user.Allows Batch Foldering

The review tool should allow clients to automatically create olders based on elded inormation. For example, aclient should be able to older by Custodian, by Date, by Custodian then by Date, by File Extension, or by originalle path o an inbox or network stored les.

Provides Tag Rules

The review tool should be able to identiy errors as they are made. This would allow consistent marking o docu-ments across all reviewers, enabling more accurate and timely production sets.

Conict Checking and Management

Conict checking should be able to automatically generate reports on any tagging inconsistencies. The clientshould have predened conict rules built in and the ability to manually create conict rules. This would supportconsistent marking o documents across all reviewers, thus allowing or more accurate and timely productionsets.

Isolates Documents

Clients should be able to lock down, isolate and restrict access to specic documents so that when users loginto the system, they will only see the documents they should have access to. This can reduce costs by limitingspecialized reviewers to documents that require their specialty.

Native/Image Review and Redaction Capabilities

The review tool should provide native support or multiple ormats and users should have a single point o access

to their documents, regardless o ormat, rom a single, easy-to-use interace. There should be no need to havethe native application installed on the client PC, and redactions should be able to be applied to an image or theactual native document, which would eliminate the need or ti-on-the-y.

Searching Capabilities

The review tool should support simple and advanced queries, including Boolean or natural language searches.Other search options, such as word stemming, relevance, or uzzy, should also be denable by the user withthe ability to narrow the search to a specic older or tag. This allows ecient culling, thus reducing time andexpense o review. In addition, attorneys and paralegals can use the search to quickly see i the evidence wouldsupport a given legal theory.

Message Thread Conversation Grouping

In support o collaboration, the review application should support message threading, which connects messagesthat are direct responses to a specic topic or conversation.

Parent/Child Association

The review tool should quickly and easily display the association between emails and their attachments, alsoknown as parent and child association. The eature should be available or both email les as well as scannedpaper material.

Duplicate Identication

The review application should quickly and easily display all duplicates in the system on a document level. Thereshould also be a eature enabling users to tag, comment, and redact the original and have all markings transer toall duplicates. This prevents redundant and inconsistent redactions, which may destroy privilege.

Comment Section

The review application should provide an area where users can share comments and questions regarding specicdocuments. These comments should be stored as threaded discussions where users can respond to a commentto provide eedback.

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These comments should be able to be shared as public or private, and the application should record the userwho created the comment, and date/time o when the comment was created.

Role Management

The review application should dene multiple roles within the application; or administration, users, expert wit-nesses, 1st and 2nd reviewers, and privilege reviewers. These roles should be designed to assist with easy catego-rization o users within a document review. These roles should not be restrictive, meaning that clients should beable to choose not to use them and be able to create custom privileges within the roles. This promotes exibilityin review and ease o setup, thus reducing costs.

Review Workow Management

The review application should provide a simple interace to manage 1st and 2nd review teams, and allow themto work seamlessly in tandem. The application should assist the client with prioritizing and managing daily work-ow tasks, distributing documents to reviewers or action, and generating pre-dened reports to understand theprogress o the entire document review. Reviewers should be assigned to specic olders o documents, or beable to pull rom the entire population o documents. The reviewers should receive the documents in batches.

The numbers o documents in the batches should be determined by the client and should be completely cus-tomizable. This allows review management teams to remain exible, to add or remove reviewers as necessary,and monitor their progress.

Privilege Log Workow Management

Clients should be able to easily manage one or more privilege logs in a centralized location with the application.This workspace would allow clients to manage and edit the privilege log, select the elds that need to be on theprivilege log, and export the log to a desired delimited ormat. Furthermore, there should be ability to deneprivilege log rules and include privilege amilies so privileged inormation is not produced by mistake.

Production Workow Management

Clients should be able to easily manage one or more productions in a centralized location with the application.There should be the ability to dene production rules and run conict checks to only produce what is intendedto be produced. This workspace would allow clients to store the production specications, and review the overallproduction summary. By doing this, litigation teams can eciently allocate resources, even across multiple lawrms.

Simplicity in Printing

Clients should be able to print reports in a variety o ormats including Excel, Word, HTML, XML and several delim-ited ormats and also print documents in PDF with custom headers and ooters, watermarks and separator sheetscontaining elded inormation rom the database.

Allows or Production

Clients should be able to produce in any standard ormat with labels, watermarks and bates numbers and deliverthe production over the Internet (secure FTP) or on CD, DVD or other magnetic media.

Why is Review Important? Reprise

As stated earlier, the principal objective o review is to determine the relevancy and/or responsiveness o les or

ecient and expedient production and subsequent use. Through this high level overview o electronic discov-ery review, the hope is that you will have enough inormation to ask the right questions and to evaluate reviewphases, characteristics, and eatures, so as to ensure that the techniques and processes used in your specicelectronic discovery review are eective, ecient, and deensible.

Understanding Electronic Discovery Tasks - Production6What Is Production?

As dened by The Sedona Conerence, Production, in the context o electronic discovery, is the process o deliv-ering to another party, or making available or that partys review, documents and/or ESI deemed responsive to adiscovery request. In even simpler terms, Production can be understood as the delivery o data or inormation

in response to an interrogatory, subpoena or discovery order or a similar legal process.

6 Orange Legal Technologies Production: http://orangelt.us/services/production-services/

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What Is One O The Primary Drivers O ESI Production?

One o the primary drivers o ESI production is the legal requirement presented in the Federal Rules o Civil Pro-cedure (FRCP). Within the FRCP, Rule 34 (Production o Documents, Electronically Stored Inormation, and Thingsand Entry Upon Land or Inspection and Other Purposes) highlights the act that electronically stored inorma-tion (ESI) must be produced in orms that are reasonably usable. Requests or production may speciy desireddata ormats or production. I no specication is made, parties must produce the ESI in the ormat in which it isordinarily maintained, or in a reasonably usable orm (ie, i ordinarily kept in a proprietary ormat.) Parties do nothave to produce ESI in more than one ormat.

The ull content o FRCP Rule 34 is provided below:

(a) Scope.

Any party may serve on any other party a request (1) to produce and permit the party making the request, orsomeone acting on the requestors behal, to inspect, copy, test, or sample any designated documents or elec-tronically stored inormation including writings, drawings, graphs, charts, photographs, sound recordings,images, and other data or data compilations stored in any medium rom which inormation can be obtained translated, i necessary, by the respondent into reasonably usable

orm, or to inspect, copy, test, or sample any designated tangible things which constitute or contain matterswithin the scope o Rule 26(b) and which are in the possession, custody or control o the party upon whom therequest is served; or (2) to permit entry upon designated land or other property in the possession or control othe party upon whom the request is served or the purpose o inspection and measuring, surveying, photograph-ing, testing, or sampling the property or any designated object or operation thereon, within the scope o Rule26(b).

(b) Procedure.

The request shall set orth, either by individual item or by category, the items to be inspected, and describeeach with reasonable particularity. The request shall speciy a reasonable time, place, and manner o making theinspection and perorming the related acts. The request may speciy the orm or orms in which electronicallystored inormation is to be produced. Without leave o court or written stipulation, a request may not be servedbeore the time specied in Rule 26(d).

The party upon whom the request is served shall serve a written response within 30 days ater the service o therequest. A shorter or longer time may be directed by the court or, in the absence o such an order, agreed to in

writing by the parties, subject to Rule 29. The response shall state, with respect to each item or category, thatinspection and related activities will be permitted as requested, unless the request is objected to, including anobjection to the requested orm or orms or producing electronically stored inormation, stating the reasons orthe objection. I objection is made to part o an item or category, the part shall be specied and inspection per-mitted o the remaining parts. I objection is made to the requested orm or orms or producing electronicallystored inormation or i no orm was specied in the request the responding party must state the orm ororms it intends to use. The party submitting the request may move or an order under Rule 37(a) with respect toany objection to or other ailure to respond to the request or any part thereo, or any ailure to permit inspectionas requested.

Unless the parties otherwise agree, or the court otherwise orders:

(i) a party who produces documents or inspection shall produce them as they are kept in the usual course o

business or shall organize and label them to correspond with the categories in the request;(ii) i a request does not speciy the orm or orms or producing electronically stored inormation, a respondingparty must produce the inormation in a orm or orms in which it is ordinarily maintained or in a orm or ormsthat are reasonably usable; and

(iii) a party need not produce the same electronically stored inormation in more than one orm.

What Are The Typical Production Formats?

In determining the appropriate orms o production in a case, requesting parties and counsel should consider: (a)the orms most likely to provide the inormation needed to establish the relevant acts o the case; (b) the needor metadata to organize and search the inormation produced; (c) whether the inormation sought is reasonablyaccessible in the orms requested; and (d) the requesting partys own ability to eectively manage and use the

inormation in the orms requested. Once the requirements or the production, production ormats can then beconsidered. Typically, ESI production ormats are classied as native, near-native, near-paper and paper.

eDiscoveryTasks

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eDiscovery

Tasks

Native File Formats

Files produced in the ormat they were created and maintained are known as native production. In a nativeproduction, MS Word documents are produced as .doc les, MS Excel les are produced as .xls les, and Adobeles are produced as .pd les, etc. Native ormat is oten recommended or les that were not created or print-ing such as spreadsheets and small databases. For some le types the native ormat may be the only way toadequately produce the documents.

Near-Native Formats

Some les, including most e-mail, cannot be reviewed or production and/or produced without some orm oconversion. Most e-mail les must be extracted and converted into individual les or document review andproduction. As a result, the original ormat is altered and they are no long in native ormat. There is no standardormat or near-native le productions. Files are typically converted to a structured text ormat such as .html orxml. These ormats do not require special sotware or viewing. Other common e-mail ormats include .msg and.eml.

Near-Paper Formats

ESI can also be produced in a near paper ormat. Rendering an image is the process o converting ESI or scanningpaper into a non-editable digital le. During this process a picture is taken o the le as it exists or would existin paper ormat. Based on the print settings in the document, the printer or the computer, data can be altered ormissing rom the image. Expertise in the eld o electronic discovery and image rendering tools are necessary tominimize this risk.

Paper Formats

A paper production is just what it sounds like: paper is produced as paper or ESI is printed to paper and the paperis produced. As with converting to image, printing documents to paper can result in missed or altered data.When producing ESI in paper, it is recommended to utilize someone with expertise in the eld o e-discovery andimage rendering tools to minimize this risk during the printing or image rendering process.

When Should Production Planning Begin?

Federal Rule o Civil Procedure 26( ) calls or an early discussion o orm o production issues. Rule 34 sets orth amore detailed explanation o the ways in which parties should request and respond to requests seeking produc-tion or inspection o electronically stored inormation.

At the outset, parties seeking discovery should have sucient technical knowledge o production options so thatthey can make an educated and reasonable request. These options should be discussed at the Rule 26( ) coner-ence and included in any Rule 34(a) requests. Likewise, responding parties should be prepared to address orm oproduction issues at the Rule 26( ) conerence.

With respect to requests and responses, the revised Rule 34(b) provides that a request may speciy the orm ororms in which electronically stored inormation is to be produced. I objection is made to the requested orm ororms or producing electronically stored inormation, or i no orm was specied in the request, the respondingparty must state the orm or orms it intends to use.

I a request does not speciy the orm or orms or producing electronically stored inormation, and absent agree-ment o the parties, a responding party must produce the inormation in a orm or orms in which it is ordinarilymaintained or in a orm or orms that are reasonably usable unless otherwise ordered by the court. A party need

not produce the same electronically stored inormation in more than one orm. [v]

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Understanding

Meet and ConerTasks

As a general rule, the most successul man in lie is the man who has the best inormation.

Benjamin Disraeli

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Meetan

dConferTasks

Understanding Meet and Coner Tasks

Pre Meet and Coner

Article via ALI/ABA by Aisha Shelton Adam of Silver & Freedman, used with permission.

The Duty To Preserve Electronic Data In The Paperless Age - Preserving Electronic Documents

By now, it is common knowledge to lawyers and businesses alike that electronic data is discoverable. Courts haveuniormly held that businesses may not erase relevant electronic data any more than they may shred relevantdocuments reduced to paper ormat. The substitution o the le room or the computer hard drive, however, hasirreutably altered the traditional means by which companies generate, record, and maintain inormation in waysthat were not contemplated when traditional discovery rules were drated. Millions o email messages, drats,internal memoranda, correspondence, agreements, and other documents are created daily and stored electroni-cally without copies ever being printed and saved. Not surprisingly, when a conict or lawsuit arises, electroni-cally stored data may be the only or most reliable evidence available to litigants to maintain or deend the case.

The discovery o electronic data will play an increasingly critical role in most business and commercial litigationcases, and will necessarily aect the way parties conduct litigation, particularly discovery. The increasing capac-ity by which data may be amassed and stored electronically has the ability to turn a seemingly simple discoveryrequest into a litigation sideshow. As a result, electronic discovery has spawned a host o new legal issues which

may arise during the discovery process.For businesses that are oten involved in litigation, especially large corporations, the discovery o electronicallystored data presents new, and otentimes expensive, challenges. Among the issues o concern are:

When must a company take steps to maintain electronic documents?

What documents must be retained?

What steps should be taken to prevent the destruction o electronic data?

Counselsroleinpreservingevidence;andTheconsequencesforfailingtopreserveelectronicevidence.

WHEN DOES A PARTY HAVE A DUTY TO MAINTAIN ELECTRONIC DOCUMENTS?

Absent actual or threatened litigation, an individual or company may destroy documents at any time or pursuantto an established document retention policy, i any. However, the duty to preserve attaches on notice that par-ticular evidence is relevant to pending litigation or when the party should have known that the evidence may berelevant to uture litigation. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003). In considering whetherthe duty to preserve is triggered, the courts will review the totality o the circumstances using either an objec-tive or subjective test: did the party actually anticipate litigation, or would a reasonable person in the partysposition anticipate litigation? Trevino v. Ortega, 969 S.W.2d 950, 956 (Tex. 1990).

Anticipating Litigation

Litigation may be reasonably anticipated beore a complaint is led i a party is served with a demand letter,subpoena, or preservation letter requesting that certain electronic inormation be retained. The duty to retainelectronic inormation relevant to uture litigation may also arise by statute or may be triggered during an exist-ing lawsuit. Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y. 1991).

Additionally, the actual circumstances surrounding a certain event may also notiy a party that uture litigationmay arise, thereby giving rise to the obligation to preserve evidence relevant to that lawsuit. Hirsch v. GeneralMotors Corp., 628 A.2d 1108, 1122 (N.J. Super. Ct. Law Div. 1983).

For example, in Zubulake v. UBS Warburg LLC, et al., 220 F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV), plainti Zubu-lake led a complaint with the Equal Employment Opportunity Commission (EEOC) against her ormer employ-er UBS or gender discrimination. Plainti argued that the duty to preserve electronic evidence arose beore sheled her complaint; the court agreed. Id. at 216. At the latest, the court concluded that the duty to preserve arosewhen Zubulake led her complaint with the EEOC. Id. However, the court determined that the preservation dutyattached even beore the lawsuit was led because almost everyone associated with Zubulake recognized thepossibility that she might sue. Id. at 216-217.

In reaching its decision, the court in Zubulake IV noted that key UBS employees, including plainti s supervisorsand co-workers, circulated emails about plainti labeled UBS Attorney Client Privilege even though the emailswere not directed toward any attorney and no attorney was copied on the email. Id. at 217. The court also notedthat Zubulakes supervisor testied during deposition that he eared litigation was possible more than threemonths beore the lawsuit was led. Id. The Zubulake IV court was quick to caution that the reasonable anticipa-tion o litigation consists o more than speculation by a ew employees about the possibility o a uture lawsuit.

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Id. Future litigation must be reasonably anticipated by key players, or persons who likely possess inormationwhich may be relevant to uture or actual litigation. Id. In other words, mere gossip or speculation amongst co-work-ers is not enough.

THE SCOPE OF THE DUTY TO PRESERVE ELECTRONIC DATA

Once the obligation to preserve electronic data is triggered, it is imperative that the parties understand the scopeo the data covered by the preservation obligation. In Zubulake IV, the court announced that a corporation neednot preserve every shred o paper, every e-mail or electronic document, and every backup tape beore or duringactual or threatened litigation. Zubulake IV, 220 F.R.D. at 217. Indeed, such a blanket requirement would handicap or

cripple large corporations that are oten parties to lawsuits. Id.

At the same time, however, once a lawsuit