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Chapter 12 twelve issues in electronic discovery civ lit 2
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Chapter 12 twelve issues in electronic discovery civ lit 2
1.
Civil Litigation: Process and
Procedures Chapter Twelve Issues in Electronic Discovery
2.
Electronic Discovery
Litigation documents may be Paper Electronic files stored On computers Backup file media: tape, CDs, DVDs, portable drives Litigation support specialty application software helps Organize Search Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 2
3.
Electronic Discovery Issues
Compatible electronic formats Cost of recovering lost or corrupted files Managing voluminous results Reviewing documents to protect privileged information Cost/benefit budget analysis Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 3
4.
Electronic Discovery Process
Determine What is needed Where it is located, who controls it The format in which required documents are available The format that would be most beneficial to the discovering party The value v. the cost of obtaining them Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 4
5.
E-Discover Road Map Civil
Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 5
6.
“Record” Defined Jicarilla
Apache Nation v. United States, 80 Fed. Cl. 413 (2004) “As used in the Order, „record‟ means any book, bill, calendar, chart, check, compilation, computation, computer or network activity log, correspondence, data, database, diagram, diary, document, draft, drawing, e- mail, file, folder, film, graph, graphic presentation, image, index, inventory, invoice, jotting, journal, ledger, machine readable material, map, memo, metadata, minutes, note, order, paper, photograph, printout, recording, report, spreadsheet, statement, summary, telephone message record or log, transcript, video, voicemail, voucher, webpage, work paper, writing or worksheet….” Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 6
7.
“Record” Also
includes “…any other item or group of documentary material or information, regardless of physical or electronic format or characteristic, and any information therein, and copies, notes, and recordings thereof.” Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 7
8.
Electronic Processing
Filtering – scan or search documents for relevant terms Such as a name or date In order to narrow the focus De-duplication (de-duping) – electronically eliminating duplicates of the same document Generally need only one copy of something that may have been sent to hundreds of recipients However, it is sometimes necessary to show that multiple copies were sent Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 8
9.
Requesting Documents
May seek electronic documents in their native file format (saved in the same format in which it was created) Convert paper documents to electronic files Determine compatible format -- TIFF or PDF most commonly used for conversion Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 9
10.
Coding
Capturing case-relevant information Objective coding (bibliographic indexing) includes author, type of document, recipient, date Subjective coding also includes keywords involving subject matter Auto-coding electronically scans a document using narrow, specific criteria – may identify documents for further hand coding Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 10
11.
Electronically Stored Information
Federal Rules pertain to ESI They have increased awareness of The need for preliminary auto-coding Metadata issues Optical Character Recognition technology Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 11
12.
Redaction and Production
Numbering Redaction is the removal of confidential information In paper documents, manually blacked-out Simple deletions may not be adequate electronically, since information may be recaptured Production numbering (Bates) Makes identification & review of documents easier Prepare exhibits for trial, marked P or D Litigation management programs may do this automatically Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 12
13.
Metadata
Electronic information about a document Resource (system) metadata – location of the file Content (application) metadata – information about the content & author Unless specifically blocked, usually available in files delivered in native format Not available in scanned files (images) Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 13
14.
Court Description of
Metadata Williams v. Sprint/United Management Co. (Sept. 19, 2005), U.S. Dist. Ct. 03-2200-JWL-DJW (D. Kansas) “Some examples of metadata for electronic documents include: a file‟s name, a file‟s location (e.g., directory structure or pathname), file format or file type, file size, file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to it, who can run it).” Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 14
15.
Potential Problem
Because it is hidden, there may be an inadvertent disclosure of confidential or privileged information Can be prevented Convert documents from native format into images Use software that removes, or “scrubs” metadata from files before sending Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 15
16.
Scanning Documents
Need to determine the type of document format TIFF or PDF is an image with easy portability, but usually “read only” OCR (optical character recognition) converts a document into a full-text, searchable document that can be manipulated Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 16
17.
Obtaining E-Mail Records
Usually have to work from back-ups May not have been saved – taped over Will not show mail received & deleted in a single day Spam is generally trapped & eliminated A single message may show up as both having been sent & having been received, creating 2 “hits” per message Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 17
18.
Some Problems
Wiginton v. CB Richard Ellis, Inc., 229 F. R. D. 568 (2004) “[A]though talking about documents in terms of numbers in not entirely accurate, the search system was designed to get an idea of how frequently the documents containing search terms were being passed around…within or between the offices. Because spam was eliminated, it means the picture does not present an entirely accurate view of any other pornographic e-mails that may have been available…, or how often users are opening such documents in view of other people. The numbers also do not reflect e-mails that were not captured on back-up tapes.” Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 18
19.
Comparing TIFF and
PDF TIFF Older files more apt to be saved this way No longer supported by Adobe Files 10x the size of PDF, taking extra storage space and transmission time Cannot be easily altered PDF Smaller & faster files Can support redaction & production numbering Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 19
20.
Computer Forensics v.
Data Gathering Computer Forensics Data Gathering Goal To locate hidden or deleted files To capture potentially responsive documents Tools Highly specialized, expensive Relatively inexpensive tools Required hardware & software utilized by most IT depts. Expertise Computer forensics experts In-house IT staff or Required electronic discovery service Relative Can cost thousands of dollars to Cost efficient methods Expense analyze a single hard drive employed to leverage the client‟s own resources Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 20
21.
Forensic Issues
Intentionally deleted or altered documents Accidentally deleted or altered documents, including catastrophic events and viruses Detailed information about the chain of custody of electronic information (tracking) Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 21
22.
Electronic Discovery Service
Companies Outside consultants useful when a firm Requires greater expertise Doesn‟t have the equipment or personnel to handle a large discovery load May be full-service, including forensic expertise May provide limited services, like auto- coding or scanning Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 22
23.
Considerations Civil Litigation: Process
and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 23
24.
Litigation Support Systems
Complex cases may involve millions of pages of information Litigation support software helps Search for & retrieve evidence Handle documents, testimony, photographs or electronic files Organize information into online folders Permit concurrent multiple users & remote access Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 24
25.
Processing Electronic Evidence Civil
Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 25
26.
Searches
Searches can be performed by Word, phrase, date, e-mail address, document type Boolean searches, using Connectors (AND, OR, NOT, NEAR) to establish proximity of the words sought Fuzzy searches (looks for strings of characters) Wild cards (permits replacement of a letter in a word to catch variations) Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 26
27.
Concordance Civil Litigation: Process
and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 27
28.
Concordance Software
Like Summation, a litigation support system Identifies key documents for trial Prepares witness kits Organizes document responses Prints chronology reports Generates deposition digests Manages e-mail & electronic documents Maximizes OCR text Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 28
29.
Ethical Issues
Attorneys can be sanctioned for failing to fulfill an e-discovery request May obtain an extension if difficulties arise May be able to shift the expense to the discovering party May have a negative inference drawn for the jury Could face a contempt or criminal charge for intentional destruction of evidence Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 29
30.
Emerging Law
Federal Rules of Civil Procedure provide a framework for electronic documents E-mails Scanned documents Word processed documents Electronic databases & spreadsheets Proof of a legal claim may be in electronically generated documents Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 30
31.
Standards for ESI
Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) “Now that the key issues have been addressed and national standards are developing, parties and their counsel are fully on notice of their responsibility to preserve and produce electronically stored information.***It is hoped that counsel will heed the guidance provided…and will work to ensure that preservation, production and spoliation issues are limited, if not eliminated.” Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 31
32.
Spoliation
The destruction or significant alteration of evidence The failure to preserve property for another‟s use as evidence In pending or reasonably foreseeable litigation Physical objects (e.g., crushing a car), paper documents (e.g., burning a will) or electronic documents (e.g., deleting an e-mail) Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 32
33.
Retention of Documents
Ordinary course of business, with no reasonable expectation of litigation Archive electronically Create paper archives Destroy (shredding, erasing) Litigation hold Preserve Maintain the means of access (necessary software, drives, etc.) Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 33
34.
Litigation Hold
Zubulake v. UBS Warburg LLC, Id. “[C]ounsel has a duty to effectively communicate to her client its discovery obligations so that all relevant information is discovered, retained, and produced. In particular, once the duty to preserve attaches, counsel must identify sources of discoverable information. This will usually entail speaking directly with the key players in the litigation, as well as the client‟s information technology personnel.” Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 34
35.
Dismissal or Default
The sanction for failing to comply fully with electronic discovery requests was a default judgment against the non-cooperating party Production of discoverable material was late & incomplete Raised an issue of tampering with improper archiving procedures In re Telxon Corp. (Jan 11, 2005), U.S. Dist Ct. 5:98CV2876, 1:01CV1078 (N.D. Ohio) Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 35
36.
Negative Inference
Residential Funding Corp. v. DeGeorge Financial, 306 F.3d 99 (2nd Cir. 2002) “[W]here a party seeking an adverse inference adduces evidence that its opponent destroyed potential evidence (or otherwise rendered it unavailable) in bad faith or through gross negligent (satisfying the „culpable state of mind‟ factor), that same evidence of the opponent‟s state of mind will frequently also be sufficient to permit a jury to conclude that the missing evidence is favorable to the party (satisfying the „relevance‟ factor)….” Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 36
37.
Costs
Can include Restoration services (outside consultants, computer forensics) Attorney time for document review Paralegal time for document retrieval Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 37
38.
Federal Rules and
E-Discovery Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 38
39.
Other Amended Rules
Rule 16 – Pretrial conferences to address electronic discovery Rule 26 – Duty to disclose ESI Rule 33 – Answers to interrogatories must include ESI Rule 34 – Production of documents includes data compilations Rule 37 – Sanctions include failure to produce ESI Rule 45 – Subpoenas duces tecum include ESI Form 35 – Report of parties‟ discovery planning meeting Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 39
40.
Protecting Privileged Information Civil
Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 40
41.
Claw-Back Provisions
Does not relieve the legal team from protecting privileged information Particularly important with ESI A careful review and attorney objections to requests for protected materials will reduce the need for this Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 41
42.
IT Personnel
Advise the legal team Consult with clients Identify cost-effective ways of complying with discovery requests Help set up archives for document retention Identify the need for specialized help Should not be used as expert witnesses, which would jeopardize privileged information Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Goldman/Hughes 42
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