Rewriting the Law in the Digital Age E-Discovery Rewriting the Law in the Digital Age Hillary Hellmann

eDiscovery Defined “Electronic discovery” is the common label for the formal process in civil lawsuits of the discovery of factual information that, at any time, has been created, retained, stored, processed, converted, reviewed, produced or presented in electronic form by computers or other electronic media.” It is currently the most rapidly changing area of the law.

What is ESI? Electronically stored information Not specifically defined by the law (wide variety of computer systems and rapid technological change) Can include, but is not limited to: Text, images, calendar files, databases, spreadsheets, audio files. Animation, Web sites, computer programs, malware, hard drives, laptops, PDAs, network systems drives, servers, data from internet user groups, hard and floppy disks, email, appointment books, cell phone data, telephone logging, answering machine records, fax machine data and logs, building security logs, web logs, global positioning data from GPS systems in automobiles, chat room data, deleted information, etc…

Traditional vs. Electronic Discovery Lawyers and clients Distinct line between searchable and non-searchable evidence Only formal documents Retention and destruction policies easier to enforce Accidental destruction not as likely High retention cost, but low discovery cost Lower scale Electronic Lawyers, clients, forensic specialists, IT staff, eDiscovery specialists Can stumble upon irrelevant evidence Documentation of all candor and informalities ESI is less visible and less manageable Can be easily overwritten/erased Low retention cost, but high discovery cost High scale (ex. White House)

The Federal Rules of Civil Procedure 2006-2007 Forced civil litigants to comply with respect to proper retention and management of ESI Mishandling could result in spoliation of evidence, adverse inference, summary judgment and sanctions Attorneys can be punished by the bar Clients can be punished by the law

eDiscovery Reference Model

eDiscovery Issues Paper lawyers living in a digital world Nature of ESI (deleted data, metadata, etc.) Expensive Burden and means for avoidance Rowe Entertainment Inc. v. William Morris Agency, Inc. Responding party unless “undue burden or expense” Zubulake v. UBS Warburg, LLC Accessibility vs. inaccessibility Proactive deletion Complexity of client infrastructure and procedures Difficulty of restoration Preparedness (82% no method, 60% unaware) Law provides little guidance Admissibility

eDiscovery and the System Administrator Lawyer and SA must determine location of relevant ESI SA must be keenly aware of activities of employees A third party consultant might be necessary SA needs to: Assess current practices Create a preservation plan Analyze gaps Establish recommendations

Questions?

Works Consulted Boyd, Tracey L. “The Information Black Hole: Managing the Issues Arising from the Increase in Electronic Data Discovery in Litigation.” Vanderbilt Journal of Entertainment Law and Practice 7 (2004-2005): 323-341. Dodson, Scott. “The Importance of E-Discovery.” The Arkansas Lawyer 43 (2008): 14-15. Gates, K. “E-Discovery Amendments to the Federal Rules of Civil Procedure Go Into Effect Today.” Electronic Discovery Law. 1 Dec. 2006. 14 March 2012. <http://www.ediscoverylaw.com/2006/12/articles/news- updates/ediscovery-amendments-to-the-federal-rules-of-civil-procedure- go-into-effect-today/>. Isom, David K. “Electronic Discovery: New Power, New Risks.” Utah Bar Journal 16 (2003): 1-9. Losey, Ralph. “Perspective on Legal Search and Document Review.” E- Discovery Team. 2012. 14 March 2012. <http://e-discoveryteam.com/>. Rockwood, Rebecca. “Shifting Burdens and Concealing Electronic Evidence: Discovery in the Digital Era.” Richmond Journal of Law and Technology 12 (2005-2006): 1-19. Schultz, David H. and J. Robert Keena. “The Perils of Discovery in the E- Information Age.” Ohio Lawyer 16 (2002): 8-13.