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Legal Technologies -eDiscovery Technology

Update

Amtech Litigation [email protected]


The new Electronic Discovery Act was signed by the governor on June 29, 2009 and became

effective immediately.

The Federal Rules of Civil Procedure concerning the discovery of "electronically

stored information (ESI)” took effect December 2006.

CALIFORNIA E-DISCOVERY ACT


CALIFORNIA E-DISCOVERY ACT

Definition of Electronically Stored Information

Both California’s Code of Civil Procedure and the Federal Rules of Civil Procedure include “electronically stored information” (“ESI”) in the definitions of discoverable information. The definition of ESI is broad and meant to cover all forms of computer-based information. (Fed. R. Civ. P. 26, 33, 34; Cal. Code Civ. Proc. §§ 2031.030, 2031.270.)

What is Electronic Discovery?


What Comprises ESI?Electronic evidence is on the

computer

Over 98% of all documents are created electronically.

As of 2009 there are an estimated 1.66 billion e-mail boxes

It’s estimated that 75% of all documents created are never printed.

E-mail is the dominant form of business communication today.

Don’t have your IT people use their “special tools”, the skillset is significantly different.

• Office or Home Computer• File or Email Servers

(corporate HQ and field offices)

• Backup Tapes, CDs / DVDs

• Text & Picture Messages

• Instant Messages, Voicemail

• Blackberries, iPhones, Cell Phones

• iPod / Personal Media Players

• Flash Drives (Keyfob, Pens, etc)

• Blogs, Wikis, Social Networking Sites (FaceBook, Twitter, LinkedIn)


Easily ChangedSpoliation IssuesGrowing ExponentiallyEasily DistributedDifficult to DeleteArchiving Function v. Disaster

Recovery

Problems with Electronic Discovery


What is Metadata? Describes history, tracking, or management of an electronic

document and include such useful information as file names, file path, users, format, creation and access dates.

Why Metadata Matters? Provides additional information about the document you

might not find in the paper version Provides the “authenticity” of the document Provides link between email and attachment(s) Provides link between conversation threads Allows for de-duplication

Metadata Overview


eDiscovery overview

http://www.edrm.net/wiki/index.php/Main_Page

http://images.google.com/imgres?imgurl=http://www.tcdi.com/imageLibrary/edrm&imgrefurl=http://www.tcdi.com/Litigation/Litigation_Solutions/E_Discovery&usg=__PCMv0rAOcbJqOKOqgIzJWBahxO4=&h=288&w=575&sz=45&hl=en&start=14&tbnid=OSs4da3IOJKVBM:&tbnh=67&tbnw=134&prev=/images%3Fq%3Dedrm%2Bmodel%26imgsz%3Dsmall%257Cmedium%257Clarge%257Cxlarge%26gbv%3D2%26hl%3Den


1. Information Management• Determines the preservation and destruction timetable

• Draft and implement specific policies such as:

• Record Retention Policy;

• Email Policy;

• Backup tape policy;

• Instant messaging policy;

• Draft and implement employee exit procedures;

• Maintain updated organization charts and contact lists;

• Form litigation response team;

• create preferred vendor program; and

• create data map.

Nine Steps of eDiscovery


2. Identification

Once a complaint or subpoena is received or litigation deemed “reasonably necessary.”

Assign Case Internally; Select Outside Counsel; Compile a list of possible “key players” and other employees who may

have relevant information (IT); Compile a list of impacted departments/divisions and other

locations/determine if any international offices impacted; Compile a list of factual and legal allegations and/or documents requested;

Identify relevant time frame; Identify all possible data types; data resources; Identity sources not reasonably accessible due to burden and/or cost; Legacy systems, Backup

tapes

Identify who will serve as your 30(b)(6) deponent.



3. Preservation

• Litigation Hold letter is issued• Preserve all network and hard drive data for key players;• Review list of data sources and confirm which must be preserved;• Address how to handle responsive deleted information;• Determine preservation steps for backup tapes;• Suspend automatic deletion policies;• Draft and circulate preservation notice to all;

• Draft meet and confer outline;• Schedule early meet and confer discovery conference with opposing

counsel to negotiate the scope of the preservation and production obligations;



Preservation (continued)

• Ascertain if responsive fragmented or deleted information exists and requires restoration – backup data, legacy data, instant messaging, etc.;

• Determine who will bear the costs and whether cost-shifting is appropriate;

• Agree on format of production;• Agree on procedures for inadvertent production of privileged

or trial preparation documents (e.g. clawback, quickpeek);• Draft Discovery plan.



4. Collection

Storage: backup media (Windows/Linux/Apple) Data custodian: laptops, PDAs/Smartphones, shared server folders, e-

mail, databases, Size – 12,000 – 15,000 documents =1GB; 25000-75000 pages = 1GB; 1DVD 4.7GB; 1 laptop (100GB)

Chain of Custody: – Evidence #; custodian names; PC, server, media source; folder path; Volume size (GB)

Meta Data – Data about data (MD5 Hash; Signature Authentication)

Rule of Evidence 901 Authentication –failure to authenticate ESI can cause

inadmissibility of evidence.

In-house v. Outside (Self Acquired v. Outside Expert) Internally controlled, Internal Confidentiality, Lower Direct Cost Outside: Impartiality, Deep Expertise, large scale volume



5. Processing Data Type Identification – restoration of deleted data;

password/lock crack, extract potentially relevant data;

Data Culling – removing systems files/executable; duplicates v. near duplicates;

Data Processing - Extraction and indexing; Metadata; Body

Special Considerations: Back up tapes, Attachments, Encryption, Passwords, Corrupt, Parent-Child



6-7. Review & Analysis Data Considerations:

◦ How much filtered data to be reviewed?◦ Where will the data be hosted?

Cost consideration: ◦ In-house review v. Contracted reviewers

Protocols for Coding ◦ Responsive v. Non-Responsive (Redactions, Key or Hot

Documents)◦ Potential Issue Coding◦ Potential Witness or Deposition Kits◦ Protective Order – Confidentiality Issues



Scope of Review & Analysis Who will manage the review? What are the key issues? Who are the key players and what are their relationships? Privilege and work product First Level Review v. Full Review What are the actual discovery requests? Facts and Issues, queries and searches

Continuous updating of team members regarding relationships, facts, and issues that change as analysis continues

Keep track of searches Identification of irrelevant data


6. Review and 7. Analysis (cont.)


8. Production

Two-Tiered Production Parties can agree to produce more easily recovered

information first; Then move to the more difficult records as necessary

Preserve Metadata Produce records in format agreed upon

Tiff or PDF image with Bates numbering Searchable index with Review Load File

Privilege Log



9. Presentation

Move data into reviewable software program (e.g.)Concordance SummationCase Map or other compatible program

Trial preparation Move relevant documents into trial program (e.g.)

Trial Director, Visionary or Sanction



Discovery consists of SEEING what everybody has seen & THINKINGwhat nobody thought!

Albert Szent-Gyorgyi1937 Nobel Laureate

Thank you for your time!