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Civil Litigation:
Process and Procedures

         Chapter Twelve
  Issues in Electronic Discovery
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
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
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
E-Discover Road Map




Civil Litigation: Process and Procedures       © 2009 Pearson Education, Upper Saddle River, NJ 07458.
                                                                                  All Rights Reserved.
Goldman/Hughes                             5
“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
“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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Considerations




Civil Litigation: Process and Procedures        © 2009 Pearson Education, Upper Saddle River, NJ 07458.
                                                                                   All Rights Reserved.
Goldman/Hughes                             23
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
Processing Electronic Evidence




Civil Litigation: Process and Procedures        © 2009 Pearson Education, Upper Saddle River, NJ 07458.
                                                                                   All Rights Reserved.
Goldman/Hughes                             25
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
Concordance




Civil Litigation: Process and Procedures        © 2009 Pearson Education, Upper Saddle River, NJ 07458.
                                                                                   All Rights Reserved.
Goldman/Hughes                             27
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
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
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
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
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
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
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
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
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
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
Federal Rules and E-Discovery




Civil Litigation: Process and Procedures        © 2009 Pearson Education, Upper Saddle River, NJ 07458.
                                                                                   All Rights Reserved.
Goldman/Hughes                             38
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
Protecting
 Privileged Information




Civil Litigation: Process and Procedures        © 2009 Pearson Education, Upper Saddle River, NJ 07458.
                                                                                   All Rights Reserved.
Goldman/Hughes                             40
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
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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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