Chapter 12 twelve issues in electronic discovery civ lit 2

445 views

Published on

0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
445
On SlideShare
0
From Embeds
0
Number of Embeds
5
Actions
Shares
0
Downloads
10
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

Chapter 12 twelve issues in electronic discovery civ lit 2

  1. 1. Civil Litigation:Process and Procedures Chapter Twelve Issues in Electronic Discovery
  2. 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  SearchCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 2
  3. 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 analysisCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 3
  4. 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 themCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 4
  5. 5. E-Discover Road MapCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 5
  6. 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. 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. 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 sentCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 8
  9. 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 conversionCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 9
  10. 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 codingCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 10
  11. 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 technologyCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 11
  12. 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 automaticallyCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 12
  13. 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. 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. 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 sendingCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 15
  16. 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 manipulatedCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 16
  17. 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 messageCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 17
  18. 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. 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 numberingCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 19
  20. 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 resourcesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 20
  21. 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. 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 scanningCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 22
  23. 23. ConsiderationsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 23
  24. 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 accessCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 24
  25. 25. Processing Electronic EvidenceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 25
  26. 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. 27. ConcordanceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 27
  28. 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 textCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 28
  29. 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 evidenceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 29
  30. 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 documentsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 30
  31. 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. 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. 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. 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. 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. 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. 37. Costs  Can include  Restoration services (outside consultants, computer forensics)  Attorney time for document review  Paralegal time for document retrievalCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 37
  38. 38. Federal Rules and E-DiscoveryCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 38
  39. 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 meetingCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 39
  40. 40. Protecting Privileged InformationCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 40
  41. 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 thisCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 41
  42. 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 informationCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 42

×