Chapter 12 twelve issues in electronic discovery civ lit 2

Civil Litigation:Process and Procedures

Chapter TwelveIssues in Electronic Discovery

Civil Litigation: Process and Procedures Goldman/Hughes

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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




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




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




E-Discover Road Map




“Record” DefinedJicarilla 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….”




“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.”




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




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




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




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




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




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)




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).”




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




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




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




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.”




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




Computer Forensics v. Data Gathering

Computer Forensics Data Gathering

Goal To locate hidden or deleted files

To capture potentially responsive documents

Tools Required

Highly specialized, expensive hardware & software

Relatively inexpensive tools utilized by most IT depts.

Expertise Required

Computer forensics experts In-house IT staff or electronic discovery service

Relative Expense

Can cost thousands of dollars to analyze a single hard drive

Cost efficient methods employed to leverage the client’s own resources




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)




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




Considerations




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




Processing Electronic Evidence




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)




Concordance




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




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




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




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.”




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)




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.)




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.”




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 proceduresIn re Telxon Corp. (Jan 11, 2005), U.S. Dist Ct.

5:98CV2876, 1:01CV1078 (N.D. Ohio)




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)….”




Costs Can include

Restoration services (outside consultants, computer forensics)

Attorney time for document review Paralegal time for document retrieval




Federal Rules and E-Discovery




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




Protecting Privileged Information




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




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

Chapter 12 twelve issues in electronic discovery civ lit 2

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Transcript of Chapter 12 twelve issues in electronic discovery civ lit 2