E-Discovery Copyright 2008 Thomas F. Goldman

WHAT HAVE THEY DONE TO US NOW? OH NO, NOT AGAIN!!!!!!!!!! Overview

FEDERAL RULES OF CIVIL PROCEDURE- The New Rules- What everyone is talking about.

Federal- Setting a standard? Rule 16 Pretrial Conferences; Scheduling; Management Rule 26 General Provisions Governing Discovery; Duty of Disclosure Rule 33 Interrogatories to Parties Rule 34 Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes Rule 37 Failure to Make Disclosures or Cooperate in Discovery; Sanction Rule 45 Subpoena Form 35 Report of Parties’ Planning Meeting

ELECTRONIC DISCOVERY – THE PROCESS ( and the lingo)

ELECTRONIC DISCOVERY – THE PROCESS

What is: a “RECORD,” Redaction, Production Numbering (Bates Stamping), Privilege and “ClawBack” Clause, Converting- Electronic v s “PAPER,” Filtering, De-duplicating, Coding.

What is a “RECORD” IN THE WORDS OF THE COURT “Record” defined “record” defined. As used in this Order, “ record” means any book, bill, calendar, chart, check, compilation, computation, computer or network activity log, correspondence, data, database, diagram, diary, document, draft, drawing, , 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, voic , voucher, webpage, work paper, writing, or worksheet, or 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. ICARILLA APACHE NATION v. U.S., (Fed.Cl. 2004) No L.United States Court of Federal Claims.Filed: April 19, 2004a.

Redaction Redaction is the removal of confidential information, or at least that which is claimed to be confidential, or material prepared for trial under the work product doctrine.

Production Numbering (Bates Stamping) sequential numbering of documents

Privilege and “ClawBack” Clauses “ claw back” under FED. R. CIV. P. 16 (6) “any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production;”

Senate Passes Evidence Rule 502: 2/27/08 On February 27, 2008, the Senate approved by unanimous consent without amendment, a bill adding new EVIDENCE RULE 502 to the Federal Rules of Evidence. The legislation addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September Unlike other amendments to the federal rules of practice and procedure that take effect unless Congress acts affirmatively to modify, defer, or reject it, "[a]ny such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.”

Converting- Electronic v s “PAPER” Documents are copied or scanned and saved in some electronic file format.

Filtering Filtering is the process used to scan or search the documents for relevant terms in an attempt to narrow the focus, such as a filter to eliminate documents created before or after a certain date.

De-duplicating De-duping, is the term used to describe the process of electronically eliminating the duplicates of the same document.

Coding, the process of capturing case-relevant information (e.g., author, date authored, date sent, recipient, date opened, etc.) from a paper document. Objective coding, also referred to as bibliographic indexing. This includes the author, type of document, recipient, and date. Subjective coding, which identifies keywords within the document or other criteria not related to bibliographic information.

Difference Between Computer Forensics and Data Gathering

Is Meta data important? Resource or system metadata, information about the location of the file, Content or application metadata, information about the content and author.

Ethical issue – Litigation Holds

Ethical issue – Spoliation

Ethical issue – Confidentiality In electronic communications

Creating an Effective Discovery Plan – What is Discoverable

Creating an Effective Discovery Plan – Interrogatories for E discovery

Creating an Effective Discovery Plan – Deposition Notices for E discovery

Creating an Effective Discovery Plan – Production Requests for E discovery

Preservation WHAT WAS DONE TO PRESERVE POTENTIALLY RESPONSIVE E EVIDENCE?

Preservation WHEN WERE PRESERVATION ACTIVITIES INITIATED?

IDENTIFICATION WHAT ARE THE DATA REPOSITORIES AND APPLICATIONS BEING USED?

COLLECTION ARE YOU FAMILIAR WITH YOUR CLIENTS’ COMPUTER SYSTEMS?

COLLECTION HAVE YOU DETERMINED WHAT THE COSTS AND TIME FRAMES ARE FOR PRODUCTION?

COSTS and BURDENS HAVE YOU CALCULATED THE ESTIMATED COSTS ASSOCIATED WITH DISCOVERY ?

COSTS and BURDENS DO YOU HAVE DETAILED DOCUMENTATION SUPPORTING CLAIM OF INACCESABILTY DUE TO COST?

PRODUCTION FORMATS DO YOU KNOW THE FORMAT OF THE DATA?

PRODUCTION FORMATS DO YOU KNOW POTENTIAL IMPACT OF REVIEW INCLUDING: REDACTION DE-DUPLICATION CONFIDENTIALITY PRIVILEGE TIME TO COLLECT AND PRODUCE

Sources of Information – FIOS – Krollontrack – Ediscoverylaw (K&L |GATES)

More information Thomas F. Goldman, Esq.