Electronic Discovery Sabrina Jones 4/14/2011

What is E-Discovery What is Discovery E-Discovery Pretrial process during which each party request relevant information and documents from the other side in an attempt to “discover” pertinent facts. E-Discovery Involves the access and use of information, data, and records created or maintained in electronic media.

Approaches to E-Discovery Computer Forensics The Broad Search The Focused Search

Computer Forensics Scientific methods are used to: Analyze sources of e-data Determine if evidence was: 1) accessed 2) destroyed 3) fabricated Find computer generated evidence Access logs or metadata

The Broad Search The process of obtaining large amounts of relevant information by: Searching Gathering Reviewing Analyzing This process is equivalent to searching warehouse, wastebaskets and file cabinets Often performed and facilitated by outside service providers

The Focused Search The process of searching for electronically stored information relevant to the specific case Toll records, cell phones, GPS devices E-mail communication of key participants Surveillance tape Computer records in an automobile

E-Data Considered in Every Case E-data may be the only evidence Many aspects of our lives are recorded each day The use of hard copy is considering only a small percentage of evidence Lawyers must Prepare cases by adequate discovery Advise their clients of their preservation and discovery obligations If not, there may be malpractice claims

Challenge of E-Discovery Difficult to apply the basic principles of discovery E-data and paper are different Hard copy versions are incomplete They do not reveal modification E-data reveals: Hidden comments Prior versions Changes Involves knowledge of non-legal disciplines Computer forensics Network forensics Records management

E-Discovery Issues Spoliation Cost Shifting Reasonable Search Form and Format

Spoliation Spoliation is simply the destruction of potential evidence Issue with e-data and discovery Normal operation of a computer destroys or changes information For example: Databases continually updated, old information destroyed Business mission/ activities change Information no longer relevant may be destroyed

Cost Shifting Issue of who should pay for the e-discovery process Previously cost of e-discovery was on the producer of the documents The cost of retrieving information from backup tapes may exceed one million dollars Later, it was determined that Cost to produce e-discovery documents should be shifted to the requesting party Cost shifting standards are still evolving

Reasonable Search With regards to e-discovery Issues arise as to whether a responding party has conducted a reasonable search Large volume of e-records Search and review by humans is problematic Solution Computers are cheaper and more accurate in repetitive examination of documents Lawyers are relying on : Boolean and keyword searches Development of search software

Form and Format How documents are produced affects the value and use of the information and cost of discovery Requesters want original format and meta data Give ability to analyze, search and manipulate efficiently Produces know that production in hard copy and some e- formats may lead to Useless or very expensive discovery Determined that documents must be produced as they are kept in the usual course of business Accessing requires appropriate hardware and software

Conculsion E- discovery is important Information may be obtained and used with ease resulting in more efficient trial preparation Appears to be costly but e-discovery is evolving IT experts are using their talents to make the discovery process work Search technology is continually improving Corporations are improving electronic records management All of which improve accuracy and reduce retrieval cost

Questions?