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Presentation provides you the summary on E-discovery Law in USA.

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  1. 1. Presented by: Sadanand Naik Bangalore November 2009
  2. 2. E-Discovery <ul><li>Electronic discovery (ESI- Electronically Stored Information) which can be carried out online and offline on a particular computer refers to any process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case. </li></ul><ul><li>In general E-discovery involves gathering, managing, preserving and presenting electronic evidence. </li></ul>
  3. 3. Types of electronic records typically sought/produced in Discovery <ul><li>The text, images, calendar files, databases, spreadsheets, audio files, animation, Web sites and computer programs, Email, all email attachments, deleted messages, business contacts, metadata, flash video, tape backups, smart phones and PDAs, digital signatures and time stamps on record, system generated reports, scanned images, digital photograph, .WAV files, flash drives, faxes, PDF files, web browser cache, digitally stored voice mail, MS Word document and PowerPoint presentation, memo </li></ul>
  4. 4. US on E-Discovery <ul><li>Federal rules of evidence apply to cases filed in the federal court system. But cases tried in state, county or municipal court may follow different rules. </li></ul><ul><li>Rule 26(f) of FRCP requires that 21 days before a Rule 16(b) scheduling conference, the parties are to meet and confer to discuss any issues relating to preserving discoverable information: to discuss any issues related to disclosure or discovery of electronically stored information (ESI), including the form or forms in which it should be produced; </li></ul><ul><li>Most of the states in USA has amended the state civil rules of procedures in lines with the federal rules of civil procedure. </li></ul>
  5. 5. Importance of E-Discovery <ul><li>More than 90%records created today are electronic format(ARMA-American Records Management Association) </li></ul><ul><li>More than 70% electronic info never printed. </li></ul><ul><li>According to the 2005 Litigation Trends Survey conducted by Fulbright & Jaworski L.L.P., 90 percent of U.S. corporations are engaged in some type of litigation </li></ul><ul><li>E-discovery today represents  35 % of the total  cost  of litigation </li></ul><ul><li>More than 17 million cases filed in USA every year. </li></ul><ul><li>An estimated 247 billion emails are sent each day </li></ul><ul><li>The number of worldwide email users is projected to increase from over 1.4 billion in 2009 to almost 1.9 billion by 2013. </li></ul>
  6. 6. E-Discovery process Records Retention or management Identification Preservation/collection Processing/review/analysis Production Presentation
  7. 7. Management of E-Discovery Document <ul><li>Every document shall have detail as to: </li></ul><ul><li>Creator of the file </li></ul><ul><li>Date of creation </li></ul><ul><li>Storage location </li></ul><ul><li>Persons who had access to it </li></ul><ul><li>Persons who viewed, copied, edited, forwarded or otherwise interacted with the file over its lifetime </li></ul><ul><li>When, why and by whom any part of it (including metadata) was modified or deleted. </li></ul>
  8. 8. What can companies/corporations/organizations do to reduce the damages : <ul><li>Creating of an e-discovery response team that includes persons from management, IT, the legal department, </li></ul><ul><li>Appointments of employees to be responsible for collection of electronic evidence. </li></ul><ul><li>Preparing a written policy for retaining records. </li></ul><ul><li>Creating a forms and/or use software to track hold orders and document steps taken in response. </li></ul><ul><li>Review and simplifying of backup, retention and data disposal policies to ensure that they comply with local laws and regulations. </li></ul><ul><li>LPO is the best solution for all the above needs. </li></ul>
  9. 9. Document Review Process <ul><li>Document Review is the 4th stage of E-Discovery Process. </li></ul><ul><li>Review process involves- 3 -5 stages/levels depending on the case. </li></ul><ul><li>1st level- responsive /relevancy and non responsive. </li></ul><ul><li>2 nd level-privileged and non privileged </li></ul><ul><li>3 rd Level involves to tag document as hot doc and key doc. </li></ul>
  10. 10. Tools used in E-Discovery <ul><li>Online and offline tools include </li></ul><ul><li>Attennex </li></ul><ul><li>Concordance </li></ul><ul><li>Ringtail </li></ul><ul><li>File control </li></ul><ul><li>Stratify </li></ul><ul><li>Discovery Assistant </li></ul><ul><li>Fios On Reques </li></ul><ul><li>FirstPass </li></ul><ul><li>KazReview </li></ul>
  11. 11. <ul><li>It is still unclear about the Law, that who shall bear the cost. </li></ul><ul><li>Under the FRCP, presumption is that the responding party is to bear the costs. However party can request for cost shifting on other party. Court can shift the cost in all or part. </li></ul><ul><li>In Dahl v. Bain Capital Partners, LLC , 2009 U.S. Dist. LEXIS 52551 (D. Mass. Jun. 22, 2009) The court denied producers’ request to shift discovery costs to requestor. </li></ul><ul><li>In Lipco Electrical Corp. v. ASG Consulting Corp, New York Court held that the party seeking e-discoveryshould bear the costs of its production. </li></ul>Who shall bear the costs On the issue of whether the Requesting or of the cost to the requesting party.
  12. 12. <ul><li>Both the parties are required to produce E-Discovery Evidence in support of their case. </li></ul><ul><li>Parties can request for the e-discovery documents from opponent by filing a motion </li></ul>Electronic Discovery Requests
  13. 13. <ul><li>If the party in a suit presumes that the other party is likely to destroy the ESI in their possession, a party can request the court for preservation order. </li></ul>Obtaining Document Preservation Orders from the Court
  14. 14. Failure to Comply with E-Discovery <ul><li>If you are unable to produce requested evidence, the Court may allow jurors to presume that the lost evidence would have supported the other side’s claims. </li></ul><ul><li>E.g. Coleman v. Morgan Stanley  case in 2005, </li></ul><ul><li>If you refuse to produce, the other party can request for the sanctions from the court. </li></ul>
  15. 15. Authenticity of E-Discovery Document <ul><li>shall prove that the documents were preserved in such a way that were not altered. </li></ul><ul><li>The more you can show that the data was properly secured, the easier it is to convince the Court of its authenticity. </li></ul><ul><li>Data that has been accessible to many different persons could more easily have been modified </li></ul><ul><li>One needs to have in place firewalls, anti-virus, anti-malware and intrusion detection prevention software to prevent data from being changed or deleted by attackers or malicious software. </li></ul><ul><li>Be able to show that you use the most secure client and server operating systems. </li></ul><ul><li>Enable file access auditing so you can show who has accessed the data and when. </li></ul><ul><li>EFS, IPsec, third party encryption. </li></ul><ul><li>Deployment a public key infrastructure (PKI) and digital certificates </li></ul><ul><li>Digitally sign important documents and email messages to authenticate the identity of the creator or sender and ensure that no changes were made. </li></ul><ul><li>Using SMIME, PGP or other content security mechanisms to protect the confidentiality of email messages. </li></ul><ul><li>Deployment of an identity management solution to validate the identities of those who create or have access to data within the organization. </li></ul><ul><li>Deployment of a robust and reliable backup solution </li></ul>
  16. 16. Distruction of evidence In SonoMedica, Inc. v. Mohler,2009 U.S. Dist. LEXIS 65714 (E.D. Va. July 28, 2009) civil case  two individual's computers were subpoenaed for examination and the Court ordered the parties to turn over their home computer &quot;without it being touched except to turn it off.&quot;  A forensic expert discovered that before turning over the computer &quot;22,603 files/folders had  been affected and that 556 were deleted manually.The court ordered penalty of $108,212.15 in fees and costs against the third parties and refered he case for criminal proceedings. In a wrongful termination case, Zubulake v. UBS Warburg, a $29 million verdict was returned against UBS because the company had destroyed email messages that were demanded as evidence in the case.
  17. 17. Thank You