The Digital Era

Discovery in the New world

John C. Hopkins

Searcy Denney Scarola Barnhart & Shipley

Discovery Dishonesty The Case: Perelman v. Morgan

Stanley The Damage: $1.45 billion in compensatory and punitive

damages The Lesson: E-discovery is not to

be taken lightly.

Inside Counsel, 2005

Document Management

Knowledge Management

Document Management

Knowledge

Gather data Interviewing Electronic fact-gathering

Manage data Case planning Document handling

Using Information

Drafting Pleadings

Courtroom technology &

Presentation

Knowledge Management

Gather data Interviewing Electronic fact-gathering

Manage data Case planning Knowledge handling

Using Information

Drafting Pleadings

Courtroom Technology &

Presentation

Documents in the Digital World

Includes, but is not limited to, any electronically stored data on magnetic or optical storage media as an “active” file or files (readily readable by one or more computer applications or forensics software); any “deleted” but recoverable electronic files on said media; any electronic fragments (files that have been deleted and partially overwritten with new data); and slack data (data fragments stored randomly from random access memory on a hard drive during normal operations of a computer [RAM slack] or residual data left on the hard drive after new data has overwritten some, but not all, of the previously stored data.

Consider the average day for a busy business person:• She wakes up and connects to the office remotely, from home, on her laptop• She checks her schedule and then synchronizes her PDA, handheld computer

or her cell phone to her calendar• She makes three telephone calls on the way to the office and schedules two

new appointments• She arrives at the office and swipes an electronic entry card to gain access to

the office• She logs on to her computer and the network• She attaches her PDA and synchronizes her new appointments and contact

list• She prepares an agenda for an afternoon meeting in her word processing

software. She saves it to the network and to her hard drive to work on later• She accesses a database of sales information and constructs a report, which

she saves on the network and attaches to an e-mail message to three recipients

• During lunch, she receives five e-mail messages; three of which have attachments. She responds to two of the e-mails, including attachments, which she edited

• She downloads an interesting article, saves it to her hard drive and e-mails it to 10 people in her team

• It is only 2:00 PM and she has, during the course of the day, received over 50 e-mails relating to business and personal; some of which she responds to and others she files in her document handling system.

Consider the average day for a busy business person:• She wakes up and connects to the office remotely, from home, on her

laptop (2)• She checks her schedule and then synchronizes her PDA, handheld

computer or her cell phone to her calendar (3)• She makes three telephone calls on the way to the office and schedules two

new appointments (8)• She arrives at the office and swipes an electronic entry card to gain access

to the office (2)• She logs on to her computer and the network (2)• She attaches her PDA and synchronizes her new appointments and contact

list (3)• She prepares an agenda for an afternoon meeting in her word processing

software. She saves it to the network and to her hard drive to work on later (3)

• She accesses a database of sales information and constructs a report, which she saves on the network and attaches to an e-mail message to three recipients (8)

• During lunch, she receives five e-mail messages; three of which have attachments. She responds to two of the e-mails, including attachments, which she edited (12)

• She downloads an interesting article, saves it to her hard drive and e-mails it to 10 people in her team (++12)

• It is only 2:00 PM and she has, during the course of the day, received over 50 e-mails relating to business and personal; some of which she responds to and others she files in her document handling system. (++50)

Over 100 Data Entries in Less Than 2/3 of a “Short” Work Day!!!

At Least 18 Instances of Metadata

The Digital Candy Store

•Scope of electronic discovery•Cost & Burden•Ability to locate data•Open the door and let me in!

The Data Flow

Digital Language

• Native format

• TIF, PDF, .xls, .pst, gif, bmp, .doc, .wpd

• Metadata

• Residual data

• Repopulation and de-duplication

• The Sedona Principles

Metadata

New Important Terms

• Keyword searching

• Intuitive searching

• Redaction

• De-duplicate

• Re-populate

• Due diligence

Digital Sources

• Archival

• “Deleted” data

• E-mail

• Faxes, printers and scanners

• External & Removable storage

• Desktops, laptops, PDA’s

• Graphical material

Digital Mistakes

• No reasoned discovery plan

• Delete does not mean erased

• Lack of or faulty back up plan

• Failure to assure preservation

• Ignoring difficult to deal with sources

• Unrealistic estimation of e-mail use

• Failure to produce or to timely produce

• Failing to image drives of departing employees

• Inexperience in computer forensics

Data Loss & Destruction

• Spoliation

• Preservation

• Duty to Preserve

• Negligent & Non-negligent loss

• Sanctions

Why the Digital World??

• Because it makes sense in the handling of data, mixed data, and large amounts of documents

• Because it makes the handling of data easier and minimizes the 22 hour days for attorneys, paralegals and their staff

Why the Digital World??

• Because the court system is going to make the decision for you !!!!!!!!

Other Reasons

• Over 93% of documents are produced electronically

• Over 35% of communications never make it to paper

• 60 billion e-mail messages• The average document is copied 5 times• It makes sense: why produce electronic

information, only to print it and convert it to electronic again by faxing or copying it?

How Much Information, UC Berkley’s School of Information Mgmt., 2003

Digital Perspective

• In 2002, 5 exabytes of data was produced

• There are 17 million books in the Library of Congress (136 terabytes of digital material)

• 5 exabytes equals 37,000 Libraries of Congress

Digital discovery is not for the neophyte computer user, for the faint hearted or those lacking the courage to learn new and complex things. On the other hand, will it be more of an adventure to learn to navigate in the digital world only when the courts, your clients, or someone else pushes it upon you? Learning to navigate the digital world is a task more efficiently learned slowly than to be forced to learn in a “trial by fire”.

Trial Software

• Trial Director

• Summation

• Sanction

• Power Point

Do You Want To Be This…

Or This…?