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

2. 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.

3. 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, , 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…

4. 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)

5. The Federal Rules of Civil Procedure
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

6. eDiscovery Reference Model

7. 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

8. 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

9. Questions?

10. 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 ( ):
Dodson, Scott. “The Importance of E-Discovery.” The Arkansas Lawyer 43 (2008):
Gates, K. “E-Discovery Amendments to the Federal Rules of Civil Procedure Go Into Effect Today.” Electronic Discovery Law. 1 Dec March < 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 March <
Rockwood, Rebecca. “Shifting Burdens and Concealing Electronic Evidence: Discovery in the Digital Era.” Richmond Journal of Law and Technology 12 ( ): 1-19.
Schultz, David H. and J. Robert Keena. “The Perils of Discovery in the E- Information Age.” Ohio Lawyer 16 (2002): 8-13.