Unit 9: E-Discovery

Final Exam Preview Unit 9 Only Hello Class, I am including some material for the preview which is not included in the power point slides from units 6-8. I covered these in the seminar, but indicated I would add slides and re-upload.

Unit 9 Final Exam Preview Material Discovery is a step in the litigation process where parties exchange information. Purposes of discovery include: facilitating settlement; preparing for trial and case evaluation. Rules of civil procedure provide the framework for conducting litigation.

Unit 9 Final Exam Preview Material Discovery of documents created, disseminated and stored via electronic means is called e-discovery. New Federal Rules of Civil Procedure were enacted to address: destroying , preserving and producing electronically stored materials. Where documents have been intentionally destroyed without good faith, the cost to retrieve and restore archived, corrupted or deleted files is the responsibility of the party that destroyed the documents.

Unit 9 Final Exam Preview Material With vast numbers of documents produced electronically it is not possible to check every document before handing them over to opposing counsel. This can result in: disclosure of confidential material; disclosure of client proprietary information or trade secrets and disclosure of work product material.

Unit 9 Final Exam Preview Material To protect and retrieve inadvertently disclosed confidential or privileged materials the attorney should include a clawback provision in the discovery plan. A major issue in e-discovery is the cost of discovery. The new rules provide for a clawback provision addressing any agreements the parties reach for asserting claims of privilege or of protection of trial-preparation material after production.

Unit 9 Final Exam Preview Material The claw back is only a safety device for inadvertent disclosure after reasonable methods, under the circumstance, have been used to otherwise protect and preserve confidential material. The use of the "claw back" agreement alone does not relieve the attorney of the obligations regarding confidential client information.

Unit 9 Final Exam Preview Material As an emerging area of law, E-discovery is governed by no absolute standard but a framework emerging from a few cases that have been reported on duties and procedures. In E-discovery all electronic documents are discoverable unless protected by privilege.

Topic for Seminar Assignments due this week E-Discovery Wrap-up

Assignments Due This Week Seminar Final Exam Course Survey

What is Discovery? A step in litigation process where plaintiff and defendant share info. relevant to their dispute Paralegals usually coordinate discovery requests and responses Court ordered Part of Federal Rules of Civil Procedure

Purpose of Discovery To understand and evaluate client’s and opposition’s case Focus legal team on strengths and weaknesses of case Preserve testimony Potentially facilitate settlement Learn info. that may be used to impeach witness

Discovery Devices Depositions Interrogatories Production of documents Requests for admissions Trial witness list

What is E-Discovery The term e-discovery refers to electronic discovery (also called e-discovery or ediscovery) and 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.

What is E-Discovery E-discovery can be carried out offline on a particular computer or it can be done in a network. Court-ordered or government sanctioned hacking for the purpose of obtaining critical evidence is also a type of e-discovery.

Why is E-Discovery So Useful? Digital data can be electronically searched with ease, whereas paper documents must be scrutinized manually. Furthermore, digital data is difficult or impossible to completely destroy, particularly if it gets into a network. This is because the data appears on multiple hard drives, and because digital files, even if deleted, can be undeleted. In fact, the only reliable means of destroying data is to physically destroy any hard drive where it is found.

Types of Data In the process of electronic discovery, data of all types can serve as evidence. This can include text, images, calendar files, databases, spreadsheets, audio files, animation, web sites, and computer programs. Even malware such as viruses, Trojans, and spyware can be secured and investigated. Electronic mail (e-mail) can be an especially valuable source of evidence in civil or criminal litigation.

Computer Forensics Computer forensics, also called cyber forensics, is a specialized form of e-discovery in which an investigation is carried out on the contents of the hard drive of a specific computer. After physically isolating the computer, investigators make a digital copy of the hard drive. Then the original computer is locked in a secure facility to maintain its pristine condition. All investigation is done on the digital copy.

Example of eDiscovery http://www.geek.com/articles/google/french-find-email-passwords-and-other-incriminating-evidence-in-google-street-view-data-20100621/

Issues Associated with E-Discovery E-discovery is an evolving field that goes far beyond mere technology. It gives rise to multiple legal, constitutional, political, security, and personal privacy issues, many of which have yet to be resolved. What issues do you think should be considered? Source: http://searchfinancialsecurity.techtarget.com/sDefinition/0,,sid185_gci1150017,00.html

Privilege Waiver? Take a look at this case: http://www.ediscoverylaw.com/2010/09/articles/case-summaries/sons-receipt-of-privileged-emails-did-not-result-in-waiver-where-son-was-a-necessary-conduit-in-delivering-attorneys-emails-to-plaintiffs/ What do you think?

Avoiding Hidden E-Discovery Hazards In a courtroom, a judge’s order for a party to produce its relevant e-mail and corporate information may seem straightforward and unambiguous. However, responding to that demand forces a party to avoid getting snagged by any number of pitfalls that could contribute to incomplete discovery responses, improper data processing, and the wrath of the requesting party and Court. Complicated challenges hide just beneath the surface of a simple request to “identify and produce relevant electronically stored information (ESI).”

The Amount of Reviewable Data When dealing with compressed archives, the only way to determine the actual amount of data that must be processed and reviewed is to open all archives and extract the individual files that they contain. E-mail messages are also a notorious source of creating ambiguity regarding the amount of relevant information that must be reviewed or produced (attachments, multiple duplicative emails).

Producing the Right Amount of Information ESI (electronically stored information) that has been collected in the format in which it was stored in the ordinary course of business may be unsuited for production. Disputes about proprietary or non-standard file formats have diminished, but particularly in the production of e-mail messages, potential for conflict still remains.

Email Format Requesting parties that seek e-mail messages produced in “native format” may not fully understand exactly what they are seeking. However, converting messages in another format into a .PST archive often drops one or more metadata fields that may have been populated in the original e-mail message. In addition, custom .PST files containing only responsive documents may bear little or no relationship to the way that these e-mail messages were actually stored in the ordinary course of business.

E-Discovery Consultants To the extent that a legal team lacks the resources or expertise to address these issues head-on, working with one or more e-discovery specialists can help the team understand specific dangers—and take appropriate preventative action. Qualified consultants and e-discovery service bureaus can’t remove all the complications involved with successfully working through the e-discovery portion of a case, but their insight can keep projects on track while letting the core legal team focus on developing the rest of the client’s case. source: http://www.discoveryresources.org/featured-articles/avoiding-hidden-e-discovery-hazards/

Square D Co. v. Scott Elec. Co. , 2008 WL 2779067 (W. D. Pa Square D Co. v. Scott Elec. Co., 2008 WL 2779067 (W.D. Pa. July 15, 2008) In June 2007, the court had ordered, among other things, that defendant Globe Electric Supply Co. “submit to a forensic inspection of its computer systems which record its purchases and sales of Square D products and its inventory of such products, with such inspection to be incurred at Globe's sole expense and cost."

Square D Co. v. Scott Elec. Co. , 2008 WL 2779067 (W. D. Pa Square D Co. v. Scott Elec. Co., 2008 WL 2779067 (W.D. Pa. July 15, 2008) Counsel for Globe asserted that "there is one server and two work stations that have any connection whatsoever with Square D product." Globe argued that plaintiff’s expert should not be allowed to examine the remaining 11 workstations. The court did not accept Globe’s argument primarily because Globe had 4 times refused to comply with the discovery request. source: http://www.ediscoverylaw.com/2008/07/articles/case-summaries/court-issues-fourth-order-regarding-forensic-inspection-of-defendants-computer-systems-finds-defendants-behavior-fell-just-shy-of-conduct-befitting-default-judgment/

E-Discovery Services Lexis Applied Discovery Services: Data Gathering Media Restoration Data Processing Online Review Document Production and Reporting

Data Gathering Guidance for internal IT resources or on-site, professional assistance to collect data from clients’ computers, including network servers, desktop PCs, laptops, backup tapes, handheld devices, and any other storage medium. Cost effective strategies for identifying, gathering, and preparing only necessary information for review.

Media Restoration Retrieval of information from backup tapes or legacy systems, from standard email and word processing programs to arcane systems and uncommon file types. Cost-effective strategies for narrowing the set of potentially responsive documents.

Data Processing Electronic documents processed in industry-standard PDF format, with complete text and meta data preserved and indexed for search accuracy. 5 million pages per day allow for documents to be available in days, not weeks or months. Flexibility to process more than 200 electronic file types from a variety of storage media.

Online Review Display of disparate file types in a uniform PDF format. Capabilities include annotations, redaction, customizable document folders, and automated Bates number and document branding. Sophisticated search functionality to enable logical review of documents.

Online Review Intuitive interface with “point and click” functionality, enabling even the least technical lawyer to become an electronic discovery pro! Multi-party or multi-site collaboration with access to comprehensive Web-based repository. No hardware or software to purchase. State of the art security.

Document Production and Reporting Production of responsive documents according to client specification in electronic or paper format. Privilege log reports or user-defined custom reporting to suit the needs of the case.

Questions?