1. Electronic Discovery
Sabrina Jones
4/14/2011

2. 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.

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

4. 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

5. 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

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

7. 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

8. 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

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

10. 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

11. 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

12. 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

13. 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

14. 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

15. Questions?