E-Discovery And why it matters to a SSA

What is E-Discovery? E-Discovery is the process during litigation of discovering information relevant to litigation ESI – electronically stored information –Buzz word for lawyers

Challenge Number one litigation problem is preserving and producing digital evidence –Fulbright survey of corporate counsel 86% of corporate legal departments lack e-discovery plans or policies –2005 EDDix corporate litigation readiness study

EDRM Electronic Discovery Reference Model

Rules Federal Rules of Civil Procedure –26 must be “reasonably accessible” –16 pretrial conference where ESI should be raised –33 allows for the request in interrogatories –34 responding party should produce documents in the format in which the information is “ordinarily maintained” –26(b)(5) “clawback” provision –State Rules

Responsibilities & Preparation Data retention policy Data backup policy Software for preservation and processing –Cost –Repeatability –Assurance Use proper investigative methods Evidence based reports in english

What to do if served Don’t wait and don’t ignore it Talk to legal counsel – then talk to a consultant Find checklists that have been prepared Generally, you will define what is reasonable to access, then file a privilege log, then file a motion for protective order Be careful not to encounter spoliation Duty to preserve