Unit 9: E-Discovery

Reminders Office hours will be Friday, from 1pm-3pm EST Participate on the discussion board Read (assigned pages in) chapters 12 and 13 Final exam due Tuesday Final exam review in Doc Sharing Unit 9 review seminar on Monday/Tuesday Unit 10 discussion board (optional) Unit 10 seminar on Wednesday, 11/23 Incomplete requests due Monday, 11/21

What is Discovery? A step in litigation process where plaintiff and defendant share info. relevant to their dispute Paralegals usually coordinate discovery requests and responses Court ordered Part of Federal Rules of Civil Procedure

Purpose of Discovery To understand and evaluate client’s and opposition’s case Focus legal team on strengths and weaknesses of case Preserve testimony Potentially facilitate settlement Learn info. that may be used to impeach witness

Discovery Devices Depositions Interrogatories Production of documents Requests for admissions Trial witness list

What is E-Discovery? Process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case

What is E-Discovery? E-discovery can be carried out offline on a particular computer or it can be done in a network Court-ordered/government sanctioned hacking to obtain critical evidence is type of e-discovery

Why is E-Discovery So Useful? Digital data can be electronically searched with ease, whereas paper documents must be scrutinized manually Digital data is difficult to destroy if it gets into a network This is because data appears on # hard drives and because digital files can be undeleted Only reliable means of destroying data is to physically destroy any hard drive where it is found

Types of Data In process of e-discovery, data can serve as evidence: text, images, calendar files, databases, spreadsheets, audio files, animation, websites, and computer programs Viruses, Trojans, and spyware can be secured and investigated. can be valuable source of evidence in civil/criminal litigation

Computer Forensics Computer forensics (cyber forensics) is special form of e-discovery in which investigation is done on contents of hard drive of specific computer After isolating computer, investigators make digital copy of hard drive Original computer is locked in secure facility to maintain pristine condition All investigation is done on the digital copy

Issues Associated with E-Discovery E-discovery is evolving field that goes beyond technology It gives rise to multiple legal, constitutional, political, security, and personal privacy issues What issues do you think should be considered? Source: 017,00.html

Avoiding Hidden E-Discovery Hazards Judge’s order for party to produce relevant and corporate info. may seem straightforward and unambiguous However, responding to that demand forces party to avoid getting snagged by # of pitfalls that could contribute to incomplete discovery responses, improper data processing, and wrath of requesting party and court Complicated challenges hide beneath surface of simple request to “identify and produce relevant electronically stored information (ESI).”

Amount of Reviewable Data When dealing with compressed archives, only way to determine amount of data that must be processed and reviewed is to open archives and extract individual files that they contain messages are notorious source of creating ambiguity regarding amount of relevant info. that must be reviewed or produced (attachments, multiple duplicative s)

Producing Right Amount of Information Electronically stored info. that has been collected in format in which it was stored in ordinary course of business may be unsuited for production Disputes about proprietary or non-standard file formats have diminished, but particularly in production of messages, potential for conflict still remains

Format Requesting parties that seek messages produced in “native format” may not fully understand what they are seeking Converting messages in another format into a.PST archive often drops one or more metadata fields that may have been populated in original e- mail message Custom.PST files containing only responsive documents may bear little or no relationship to way messages were stored in ordinary course of business

E-Discovery Consultants To extent that legal team lacks resources or expertise to address these issues, working with e-discovery specialists can help team understand specific dangers— and take appropriate preventative action Qualified consultants and e-discovery service bureaus can’t remove all complications involved with successfully working through e-discovery portion of case, but their insight can keep projects on track while letting core legal team focus on developing rest of the client’s case source: articles/avoiding-hidden-e-discovery-hazards/

Square D Co. v. Scott Elec. Co., 2008 WL (W.D. Pa. July 15, 2008) In June 2007, court ordered defendant Globe Electric Supply Co. to “submit to a forensic inspection of its computer systems which record its purchases and sales of Square D products and its inventory of such products, with such inspection to be incurred at Globe's sole expense and cost."

Square D Co. v. Scott Elec. Co., 2008 WL (W.D. Pa. July 15, 2008) Globe asserted that "there is one server and two work stations that have any connection whatsoever with Square D product." Globe argued that plaintiff’s expert shouldn’t be allowed to examine remaining 11 workstations Court didn’t accept Globe’s argument because Globe had 4 times refused to comply with discovery request source: summaries/court-issues-fourth-order-regarding-forensic-inspection- of-defendants-computer-systems-finds-defendants-behavior-fell- just-shy-of-conduct-befitting-default-judgment/

E-Discovery Services Lexis Applied Discovery Services: Data Gathering Media Restoration Data Processing Online Review Document Production and Reporting

Data Gathering Guidance for internal IT resources or on-site, professional assistance to collect data from clients’ computers, including network servers, desktop PCs, laptops, backup tapes, handheld devices, and any other storage medium. Consider cost effective strategies for identifying, gathering, and preparing only necessary info. for review.

Media Restoration Retrieval of info. from backup tapes or legacy systems, from standard and word processing programs to arcane systems and uncommon file types Think of cost-effective strategies for narrowing set of potentially responsive documents

Data Processing Electronic documents processed in industry-standard PDF format, with complete text and meta data preserved and indexed for search accuracy 5 million pages per day allow for documents to be available in days, not weeks or months Flexibility to process 200+ electronic file types from a variety of storage media

Online Review Display of disparate file types in a uniform PDF format Capabilities include annotations, redaction, customizable document folders, and automated Bates number and document branding Sophisticated search functionality to enable logical review of documents

Online Review Intuitive interface with “point & click” functionality, enables least technical person to become electronic discovery pro! Multi-party or multi-site collaboration with access to comprehensive Web-based repository No hardware or software to purchase State of the art security

Document Production and Reporting Production of responsive documents according to client specification in electronic or paper format Privilege log reports or user-defined custom reporting to suit the needs of the case

Questions?

Reminders Office hours will be Friday, from 1pm-3pm EST Participate on the discussion board Read (assigned pages in) chapters 12 and 13 Final exam due Tuesday Final exam review guide in Doc Sharing Unit 9 review seminar on Monday/Tuesday Unit 10 discussion board (optional) Unit 10 seminar on Wednesday, 11/23 Incomplete requests due Monday, 11/21

Good Luck on the Final Exam!