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eDiscovery

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eDiscovery

  1. 1. Presented by: Patrice Brown<br />May 18, 2010<br />E-DISCOVERY<br />
  2. 2. <ul><li> Evolution of Technology
  3. 3. Discovery Demands of the 21st Century
  4. 4. Readiness and Responsible Compliance
  5. 5. The Pitch</li></ul>E-Discovery Overview<br />The Emerging Minefields<br />
  6. 6. What is E-Discovery?<br />DISCOVERY OF ELECTRONIC DATA<br />Electronic discovery is the process of collecting (also called “harvesting”) preparing, reviewing, and producing electronic documents (also known as ESI) in the context of the legal process.<br />
  7. 7. Understanding ESI<br />What is Electronically Stored Information (ESI)?<br />“…. ALL INFORMATION ON COMPUTERS.”<br />**While not specifically defined in the FRCP, electronically stored<br />information, or (ESI), is defined in the November 2006 issue of The<br />Third Branch (Newsletter of the Federal Courts) simply as,<br /> “all information on computers.”<br />
  8. 8. TWO-TIER SYSTEM <br />(ESI) is divided into five categories, which are grouped into two tiers based on the effort and cost needed to access ESI.<br />ACCESSIBLE <br />NON-ACCESSIBLE<br /> Backup tapes, commonly using data compression,<br /> Erased, fragmented, or corrupted data<br /> Active, online data, Near-line data (short for near online), Offline storage and archives<br />
  9. 9. Common forms of ESI in E-discovery<br />Electronic content such as Email, Email with attachments (all kinds), Text files, PowerPoint, Spreadsheets, Voicemail, Instant and Text messaging, Databases, Proprietary applications, Internet, Intranet, Wikis, Blogs, RSS feeds, (plus cache files, slack space data, cookies), Data on PDAs, Cell phones, Videoconferencing & webcasting, Purchase orders, Contracts and Social networking content<br />Metadata, Ephemeral data (data that last only a few hours that passes through/stored on RAM), Legacy or Orphaned data, CRM, Native data, Tiff, PDF, Erased, Fragmented or Damaged (“Residual”) data, Off-Line Archival data, Off-line backup or disaster recovery data, Unicode Support, Non-Unicode Support, UTF-8<br />
  10. 10. Common Sources of ESI<br />Mainframes, network servers, PAN, MAN, LAN, CAN, local drives (including network activity logs),DVDs, CD ROMs, floppy disks, laptops, backup tapes, external hard drives, desktops, file servers, smartphones, employees’ home computers, fax machines, and printers, etc.<br />
  11. 11. Record Retention<br />PROBLEM: Matching up the retention span of various e-records with the working life of information technology <br />SOLUTION: Create a data retention policy that incorporates emerging technologies on how you manage information <br />- e.g. Instant messaging, unified messaging and social media….<br />
  12. 12. Electronic Discovery Reference Model <br />
  13. 13. Stages of Electronic Discovery<br />Identification <br />Preservation <br />Collection <br />Processing <br />Review <br />Analysis <br />Production <br />
  14. 14. Identification<br />Understand the “inventory” of ESI. <br />Determine the subset of information that will be relevant for further processing.<br />IDENTIFY<br />RELEVANCY<br />
  15. 15. Preservation<br />MOST IMPORTANT STAGE OF EDRM<br /><ul><li>KNOW WHEN TO PRESERVE ESI
  16. 16. KNOW HOW TO PRESERVE ESI
  17. 17. IT YOUR DUTY TO PRESERVE ESI</li></ul>This is a critical step that ensures that ESI is protected from spoliation and modification<br />
  18. 18. Collection<br />Phase where all relevant ESI is collected from the various sources.<br />DUPLICATION<br />
  19. 19. Processing<br />PRIORITIZE RELEVANT INFORMATION<br />ESI CONVERSION AND COMPUTER FORENSICS<br />
  20. 20. Review<br />This is where the contract attorneys come in! <br /> - ESI Redaction<br /> - Relevancy Evaluation<br /> - Legal Examinations<br />
  21. 21. Analysis<br />Determining exactly what the ESI means in the context of the legal action at hand <br />Developing summaries of relevant information<br />Determining the key issues on which to focus, etc.<br />
  22. 22. Production<br />Delivering the relevant ESI to any parties or systems that will need it<br />Delivering ESI in the appropriate form(s), including DVDs, CD-ROMs, paper, etc.<br />
  23. 23. Presentation<br /> The specific forms of presentation for ESI will vary widely depending on the content:<br />How the content will be presented<br />Where the content will be presented<br />By whom will the content will be presented; and other factors<br />
  24. 24. Case Law Relevant to Electronic Discovery<br /> Federal regulations (and many states) require early collaboration <br />Findings on Case law relevant to eDiscovery is continuously evolving<br />Identify and anticipate important issues to consider prior to the Rule 26(f) conference<br />
  25. 25. Federal Rules of Civil Procedure (FRCP) governing e-discovery<br />KNOW <br />THE <br />RULES<br />December 1, 2006, the Federal Rules of Civil Procedure embraced the 21st Century world!<br />Rules 16,26,33,34,37, 45 as well as Form 35, require attorneys to pay specific attention to electronic discovery issues.<br />
  26. 26. KEY PROBLEM AREAS THAT MAKE E-DISCOVERY DISPUTES SUCH A BIG DEAL<br />PRESERVATION AND SPOILATION<br />SCOPE, FORM AND COST OF PRODUCTION<br />PRIVILEGE<br />
  27. 27. WHEN THE E-DISCOVERY PROBLEMS ARISE, THEY ARE A BIG DEAL<br />THEY CONSUME A TREMENDOUS AMOUNT OF THE PARTIES’ TIME AND MONEY<br />THEY CONSUME A TREMENDOUS AMOUNT OF THE COURT’S TIME <br />
  28. 28. WHY ARE THESE PROBLEM AREAS MORE SIGNIFICANT WITH E-DISCOVERY THAN WITH TRADITIONAL PAPER DISCOVERY?<br /> BECAUSE OF THE ENORMOUS VOLUME AND MANY SOURCES OF E- INFORMATION!<br />
  29. 29. WRAP-UP:Elements of Successful Electronic Discovery<br />A successful e-discovery effort entails most or all of the following elements:<br /> • Identifying relevant systems and data<br /> • Compelling preservation of potentially relevant digital evidence<br /> • Seeking production of digital evidence in manageable formats<br /> • Honing preservation and production through “meet and confer” sessions<br /> • Memorializing preservation and production duties as court orders<br /> • Assimilating, analyzing and using the electronic data produced<br /> • Identifying discovery abuses and seeking the Court’s intervention<br />Tip: Prudent corporations quickly implement written legal holds if litigation appears to be on the horizon.<br />
  30. 30. - THE PITCH -<br />EDUCATE<br />LISTEN<br />ADVISE<br />COUNSEL<br /> SOLUTIONS….. SOLUTIONS….SOLUTIONS!!!<br />
  31. 31. Its all about communication….<br />Principle 2.01<br />Parties should discuss electronic discovery with their opponents before initial status conference<br />And should meet and communicate with clients before meeting with opposing counsel<br />
  32. 32. “One great relationship, many great services!” PB<br />LISTEN – Early discussion and communication are imperative<br />EDUCATE – FRCP Preservation Obligations<br />COUNSEL and ADVISE – Understand that Compliance WILL COST YOU, be prepared to make the necessary changes and meet demands of eDiscovery<br />
  33. 33. Listen<br />ECA – Early Case Assessments to gain full understanding of your eDiscovery needs<br />Consulting with you prior to the meet and confer on what is or is not accessible data, to collection, processing, review, and production <br />
  34. 34. Educate<br />THE KEY TO SUCCESS IS PLANNING!<br />Let us educate you on demands and legal obligations surrounding ediscovery, and let us be your go to firm of “outside experts”!<br />
  35. 35. Counsel & Advise<br />I will personally act as liaison between IT and Legal to identify where data is stored and reduce potential litigation risks<br />Advice on changes to processes, rules and regulations, and your current and future options <br />On-site Discovery Case Management (Planning and implementation of best practices: network maps, record retention policies, eDiscovery pro tocol, LRT – Litigation Response Team, custodian interviews, etc.)<br />
  36. 36. PYE eDiscovery Solutions…..<br />Containing Costs<br />Reducing Risks, and<br />Avoiding Sanctions<br />
  37. 37. Partner with Pye<br />A core team that is always on staff<br />eDiscovery professionals with the experience and partnerships to fulfill all of your service requirements <br />Customized plans for the management of your discovery – all of it - through every step of the litigation process<br />Inside edge on latest trends, technology and legislation in the arena of eDiscovery<br />
  38. 38. CONCLUSION<br />It’s challenging. It’s expensive. But it’s the single greatest litigation advantage of the 21st century, for legal professionals who are willing to learn and fulfill their legal and compliance obligations.<br />Having a good e-discovery strategy is an organization's first line of defense in a court proceeding.<br />Being able to interact with a fast-growing universe of digital devices and data repositories are a must!<br />Whether you are a law firm looking to outsource your document reviews, or an inside counsel who wants to contain costs and maintain control, consider partnering with Patrice Brown at Pye Legal, for all of your e-discovery needs!<br />

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