The new Electronic Discovery Act was signed by the governor on June 29, 2009 and became effective immediately. The Federal Rules of Civil Procedure concerning the discovery of "electronically stored information (ESI) took effect December CALIFORNIA E-DISCOVERY ACT
CALIFORNIA E-DISCOVERY ACT Definition of Electronically Stored Information Both Californias Code of Civil Procedure and the Federal Rules of Civil Procedure include electronically stored information (ESI) in the definitions of discoverable information. The definition of ESI is broad and meant to cover all forms of computer-based information. (Fed. R. Civ. P. 26, 33, 34; Cal. Code Civ. Proc. §§ , ) What is Electronic Discovery?
What Comprises ESI? Electronic evidence is on the computer Over 98% of all documents are created electronically. As of 2009 there are an estimated 1.66 billion boxes Its estimated that 75% of all documents created are never printed. is the dominant form of business communication today. Dont have your IT people use their special tools, the skillset is significantly different. Office or Home Computer File or Servers (corporate HQ and field offices) Backup Tapes, CDs / DVDs Text & Picture Messages Instant Messages, Voic Blackberries, iPhones, Cell Phones iPod / Personal Media Players Flash Drives (Keyfob, Pens, etc) Blogs, Wikis, Social Networking Sites ( FaceBook, Twitter, LinkedIn)
Easily Changed Spoliation Issues Growing Exponentially Easily Distributed Difficult to Delete Archiving Function v. Disaster Recovery Problems with Electronic Discovery
What is Metadata? Describes history, tracking, or management of an electronic document and include such useful information as file names, file path, users, format, creation and access dates. Why Metadata Matters? Provides additional information about the document you might not find in the paper version Provides the authenticity of the document Provides link between and attachment(s) Provides link between conversation threads Allows for de-duplication Metadata Overview
Information Management Determines the preservation and destruction timetable Draft and implement specific policies such as: Record Retention Policy; Policy; Backup tape policy; Instant messaging policy; Draft and implement employee exit procedures; Maintain updated organization charts and contact lists; Form litigation response team; create preferred vendor program; and create data map. Nine Steps of eDiscovery
Identification Once a complaint or subpoena is received or litigation deemed reasonably necessary. Assign Case Internally; Select Outside Counsel; Compile a list of possible key players and other employees who may have relevant information (IT); Compile a list of impacted departments/divisions and other locations/determine if any international offices impacted; Compile a list of factual and legal allegations and/or documents requested; Identify relevant time frame; Identify all possible data types; data resources; Identity sources not reasonably accessible due to burden and/or cost; Legacy systems, Backup tapes Identify who will serve as your 30(b)(6) deponent. Nine Steps of eDiscovery
Preservation Litigation Hold letter is issued Preserve all network and hard drive data for key players; Review list of data sources and confirm which must be preserved; Address how to handle responsive deleted information; Determine preservation steps for backup tapes; Suspend automatic deletion policies; Draft and circulate preservation notice to all; Draft meet and confer outline; Schedule early meet and confer discovery conference with opposing counsel to negotiate the scope of the preservation and production obligations; Nine Steps of eDiscovery
Preservation (continued) Ascertain if responsive fragmented or deleted information exists and requires restoration – backup data, legacy data, instant messaging, etc.; Determine who will bear the costs and whether cost-shifting is appropriate; Agree on format of production; Agree on procedures for inadvertent production of privileged or trial preparation documents (e.g. clawback, quickpeek); Draft Discovery plan. Nine Steps of eDiscovery
Collection Storage: backup media (Windows/Linux/Apple) Data custodian: laptops, PDAs/Smartphones, shared server folders, , databases, Size – 12,000 – 15,000 documents =1GB; pages = 1GB; 1DVD 4.7GB; 1 laptop (100GB) Chain of Custody: – Evidence #; custodian names; PC, server, media source; folder path; Volume size (GB) Meta Data – Data about data (MD5 Hash; Signature Authentication) Rule of Evidence 901 Authentication –failure to authenticate ESI can cause inadmissibility of evidence. In-house v. Outside (Self Acquired v. Outside Expert) Internally controlled, Internal Confidentiality, Lower Direct Cost Outside: Impartiality, Deep Expertise, large scale volume Nine Steps of eDiscovery
Processing Data Type Identification – restoration of deleted data; password/lock crack, extract potentially relevant data; Data Culling – removing systems files/executable; duplicates v. near duplicates; Data Processing - Extraction and indexing; Metadata; Body Special Considerations: Back up tapes, Attachments, Encryption, Passwords, Corrupt, Parent-Child Nine Steps of eDiscovery
Review & Analysis Data Considerations: Data Considerations: How much filtered data to be reviewed? How much filtered data to be reviewed? Where will the data be hosted? Where will the data be hosted? Cost consideration: Cost consideration: In-house review v. Contracted reviewers In-house review v. Contracted reviewers Protocols for Coding Responsive v. Non-Responsive (Redactions, Key or Hot Documents) Potential Issue Coding Potential Witness or Deposition Kits Protective Order – Confidentiality Issues Nine Steps of eDiscovery
Scope of Review & Analysis Who will manage the review? What are the key issues? Who will manage the review? What are the key issues? Who are the key players and what are their relationships? Who are the key players and what are their relationships? Privilege and work product Privilege and work product First Level Review v. Full Review First Level Review v. Full Review What are the actual discovery requests? What are the actual discovery requests? Facts and Issues, queries and searches Facts and Issues, queries and searches Continuous updating of team members regarding relationships, facts, and issues that change as analysis continues Continuous updating of team members regarding relationships, facts, and issues that change as analysis continues Keep track of searches Keep track of searches Identification of irrelevant data Identification of irrelevant data Nine Steps of eDiscovery 6. Review and 7. Analysis (cont.)
Production Two-Tiered Production Parties can agree to produce more easily recovered information first; Parties can agree to produce more easily recovered information first; Then move to the more difficult records as necessary Then move to the more difficult records as necessary Preserve Metadata Preserve Metadata Produce records in format agreed upon Produce records in format agreed upon Tiff or PDF image with Bates numbering Tiff or PDF image with Bates numbering Searchable index with Review Load File Searchable index with Review Load File Privilege Log Privilege Log Nine Steps of eDiscovery
Presentation Move data into reviewable software program (e.g.) Concordance Summation Case Map or other compatible program Move data into reviewable software program (e.g.) Concordance Summation Case Map or other compatible program Trial preparation Move relevant documents into trial program (e.g.) Trial Director, Visionary or Sanction Move relevant documents into trial program (e.g.) Trial Director, Visionary or Sanction Nine Steps of eDiscovery
Discovery consists of SEEING what everybody has seen & THINKING what nobody thought! Albert Szent-Gyorgyi 1937 Nobel Laureate Thank you for your time!