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Similaire à Chapter 12 twelve issues in electronic discovery civ lit 2 (10)
Chapter 12 twelve issues in electronic discovery civ lit 2
- 2. Electronic Discovery
Litigation documents may be
Paper
Electronic files stored
On computers
Backup file media: tape, CDs, DVDs, portable
drives
Litigation support specialty application
software helps
Organize
Search
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- 3. Electronic Discovery Issues
Compatible electronic formats
Cost of recovering lost or corrupted
files
Managing voluminous results
Reviewing documents to protect
privileged information
Cost/benefit budget analysis
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Goldman/Hughes 3
- 4. Electronic Discovery Process
Determine
What is needed
Where it is located, who controls it
The format in which required documents
are available
The format that would be most beneficial
to the discovering party
The value v. the cost of obtaining them
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- 5. E-Discover Road Map
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- 6. “Record” Defined
Jicarilla Apache Nation v. United States, 80 Fed. Cl. 413 (2004)
“As used in the Order, „record‟ means any book, bill,
calendar, chart, check, compilation, computation,
computer or network activity log, correspondence, data,
database, diagram, diary, document, draft, drawing, e-
mail, file, folder, film, graph, graphic presentation, image,
index, inventory, invoice, jotting, journal, ledger, machine
readable material, map, memo, metadata, minutes, note,
order, paper, photograph, printout, recording, report,
spreadsheet, statement, summary, telephone message
record or log, transcript, video, voicemail, voucher,
webpage, work paper, writing or worksheet….”
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Goldman/Hughes 6
- 7. “Record”
Also includes
“…any other item or group of
documentary material or information,
regardless of physical or electronic
format or characteristic, and any
information therein, and copies, notes,
and recordings thereof.”
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Goldman/Hughes 7
- 8. Electronic Processing
Filtering – scan or search documents for
relevant terms
Such as a name or date
In order to narrow the focus
De-duplication (de-duping) – electronically
eliminating duplicates of the same document
Generally need only one copy of something that
may have been sent to hundreds of recipients
However, it is sometimes necessary to show
that multiple copies were sent
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Goldman/Hughes 8
- 9. Requesting Documents
May seek electronic documents in their
native file format (saved in the same
format in which it was created)
Convert paper documents to electronic
files
Determine compatible format -- TIFF or
PDF most commonly used for conversion
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Goldman/Hughes 9
- 10. Coding
Capturing case-relevant information
Objective coding (bibliographic indexing)
includes author, type of document, recipient,
date
Subjective coding also includes keywords
involving subject matter
Auto-coding electronically scans a document
using narrow, specific criteria – may identify
documents for further hand coding
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Goldman/Hughes 10
- 11. Electronically
Stored Information
Federal Rules pertain to ESI
They have increased awareness of
The need for preliminary auto-coding
Metadata issues
Optical Character Recognition technology
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Goldman/Hughes 11
- 12. Redaction and
Production Numbering
Redaction is the removal of confidential
information
In paper documents, manually blacked-out
Simple deletions may not be adequate electronically,
since information may be recaptured
Production numbering (Bates)
Makes identification & review of documents easier
Prepare exhibits for trial, marked P or D
Litigation management programs may do this
automatically
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Goldman/Hughes 12
- 13. Metadata
Electronic information about a document
Resource (system) metadata – location of
the file
Content (application) metadata –
information about the content & author
Unless specifically blocked, usually
available in files delivered in native format
Not available in scanned files (images)
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- 14. Court Description of Metadata
Williams v. Sprint/United Management Co. (Sept. 19, 2005),
U.S. Dist. Ct. 03-2200-JWL-DJW (D. Kansas)
“Some examples of metadata for electronic
documents include: a file‟s name, a file‟s location
(e.g., directory structure or pathname), file format
or file type, file size, file dates (e.g., creation date,
date of last data modification, date of last data
access, and date of last metadata modification),
and file permissions (e.g., who can read the data,
who can write to it, who can run it).”
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- 15. Potential Problem
Because it is hidden, there may be an
inadvertent disclosure of confidential or
privileged information
Can be prevented
Convert documents from native format into
images
Use software that removes, or “scrubs”
metadata from files before sending
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Goldman/Hughes 15
- 16. Scanning Documents
Need to determine the type of
document format
TIFF or PDF is an image with easy
portability, but usually “read only”
OCR (optical character recognition)
converts a document into a full-text,
searchable document that can be
manipulated
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Goldman/Hughes 16
- 17. Obtaining E-Mail Records
Usually have to work from back-ups
May not have been saved – taped over
Will not show mail received & deleted in a
single day
Spam is generally trapped & eliminated
A single message may show up as both
having been sent & having been
received, creating 2 “hits” per message
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Goldman/Hughes 17
- 18. Some Problems
Wiginton v. CB Richard Ellis, Inc., 229 F. R. D. 568 (2004)
“[A]though talking about documents in terms of numbers in
not entirely accurate, the search system was designed to
get an idea of how frequently the documents containing
search terms were being passed around…within or
between the offices. Because spam was eliminated, it
means the picture does not present an entirely accurate
view of any other pornographic e-mails that may have
been available…, or how often users are opening such
documents in view of other people. The numbers also do
not reflect e-mails that were not captured on back-up
tapes.”
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Goldman/Hughes 18
- 19. Comparing TIFF and PDF
TIFF
Older files more apt to be saved this way
No longer supported by Adobe
Files 10x the size of PDF, taking extra storage
space and transmission time
Cannot be easily altered
PDF
Smaller & faster files
Can support redaction & production numbering
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Goldman/Hughes 19
- 20. Computer Forensics
v. Data Gathering
Computer Forensics Data Gathering
Goal To locate hidden or deleted files To capture potentially
responsive documents
Tools Highly specialized, expensive Relatively inexpensive tools
Required hardware & software utilized by most IT depts.
Expertise Computer forensics experts In-house IT staff or
Required electronic discovery service
Relative Can cost thousands of dollars to Cost efficient methods
Expense analyze a single hard drive employed to leverage the
client‟s own resources
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Goldman/Hughes 20
- 21. Forensic Issues
Intentionally deleted or altered
documents
Accidentally deleted or altered
documents, including catastrophic
events and viruses
Detailed information about the chain of
custody of electronic information
(tracking)
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Goldman/Hughes 21
- 22. Electronic Discovery
Service Companies
Outside consultants useful when a firm
Requires greater expertise
Doesn‟t have the equipment or personnel
to handle a large discovery load
May be full-service, including forensic
expertise
May provide limited services, like auto-
coding or scanning
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Goldman/Hughes 22
- 24. Litigation Support Systems
Complex cases may involve millions of
pages of information
Litigation support software helps
Search for & retrieve evidence
Handle documents, testimony, photographs or
electronic files
Organize information into online folders
Permit concurrent multiple users & remote
access
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Goldman/Hughes 24
- 26. Searches
Searches can be performed by
Word, phrase, date, e-mail address,
document type
Boolean searches, using
Connectors (AND, OR, NOT, NEAR) to establish
proximity of the words sought
Fuzzy searches (looks for strings of characters)
Wild cards (permits replacement of a letter in a
word to catch variations)
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Goldman/Hughes 26
- 28. Concordance Software
Like Summation, a litigation support
system
Identifies key documents for trial
Prepares witness kits
Organizes document responses
Prints chronology reports
Generates deposition digests
Manages e-mail & electronic documents
Maximizes OCR text
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Goldman/Hughes 28
- 29. Ethical Issues
Attorneys can be sanctioned for failing
to fulfill an e-discovery request
May obtain an extension if difficulties arise
May be able to shift the expense to the
discovering party
May have a negative inference drawn for the
jury
Could face a contempt or criminal charge for
intentional destruction of evidence
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Goldman/Hughes 29
- 30. Emerging Law
Federal Rules of Civil Procedure provide
a framework for electronic documents
E-mails
Scanned documents
Word processed documents
Electronic databases & spreadsheets
Proof of a legal claim may be in
electronically generated documents
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Goldman/Hughes 30
- 31. Standards for ESI
Zubulake v. UBS Warburg LLC, 229 F.R.D. 422
(S.D.N.Y. 2004)
“Now that the key issues have been addressed and
national standards are developing, parties and their
counsel are fully on notice of their responsibility to
preserve and produce electronically stored
information.***It is hoped that counsel will heed the
guidance provided…and will work to ensure that
preservation, production and spoliation issues are
limited, if not eliminated.”
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Goldman/Hughes 31
- 32. Spoliation
The destruction or significant alteration of
evidence
The failure to preserve property for another‟s
use as evidence
In pending or reasonably foreseeable
litigation
Physical objects (e.g., crushing a car), paper
documents (e.g., burning a will) or electronic
documents (e.g., deleting an e-mail)
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Goldman/Hughes 32
- 33. Retention of Documents
Ordinary course of business, with no
reasonable expectation of litigation
Archive electronically
Create paper archives
Destroy (shredding, erasing)
Litigation hold
Preserve
Maintain the means of access (necessary
software, drives, etc.)
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Goldman/Hughes 33
- 34. Litigation Hold
Zubulake v. UBS Warburg LLC, Id.
“[C]ounsel has a duty to effectively communicate to her
client its discovery obligations so that all relevant
information is discovered, retained, and produced. In
particular, once the duty to preserve attaches,
counsel must identify sources of discoverable
information. This will usually entail speaking directly
with the key players in the litigation, as well as the
client‟s information technology personnel.”
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Goldman/Hughes 34
- 35. Dismissal or Default
The sanction for failing to comply fully with
electronic discovery requests was a default
judgment against the non-cooperating party
Production of discoverable material was late &
incomplete
Raised an issue of tampering with improper
archiving procedures
In re Telxon Corp. (Jan 11, 2005), U.S. Dist Ct.
5:98CV2876, 1:01CV1078 (N.D. Ohio)
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Goldman/Hughes 35
- 36. Negative Inference
Residential Funding Corp. v. DeGeorge
Financial, 306 F.3d 99 (2nd Cir. 2002)
“[W]here a party seeking an adverse inference adduces
evidence that its opponent destroyed potential
evidence (or otherwise rendered it unavailable) in
bad faith or through gross negligent (satisfying the
„culpable state of mind‟ factor), that same evidence
of the opponent‟s state of mind will frequently also
be sufficient to permit a jury to conclude that the
missing evidence is favorable to the party (satisfying
the „relevance‟ factor)….”
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Goldman/Hughes 36
- 37. Costs
Can include
Restoration services (outside consultants,
computer forensics)
Attorney time for document review
Paralegal time for document retrieval
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Goldman/Hughes 37
- 38. Federal Rules and E-Discovery
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Goldman/Hughes 38
- 39. Other Amended Rules
Rule 16 – Pretrial conferences to address electronic
discovery
Rule 26 – Duty to disclose ESI
Rule 33 – Answers to interrogatories must include
ESI
Rule 34 – Production of documents includes data
compilations
Rule 37 – Sanctions include failure to produce ESI
Rule 45 – Subpoenas duces tecum include ESI
Form 35 – Report of parties‟ discovery planning
meeting
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Goldman/Hughes 39
- 41. Claw-Back Provisions
Does not relieve the legal team from
protecting privileged information
Particularly important with ESI
A careful review and attorney
objections to requests for protected
materials will reduce the need for this
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Goldman/Hughes 41
- 42. IT Personnel
Advise the legal team
Consult with clients
Identify cost-effective ways of complying with
discovery requests
Help set up archives for document retention
Identify the need for specialized help
Should not be used as expert witnesses,
which would jeopardize privileged information
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Goldman/Hughes 42