E-Discovery

Presented by:Sadanand NaikBangaloreNovember 2009

E-DiscoveryElectronic discovery (ESI-

Electronically Stored Information) which can be carried out online and offline on a particular computer refers to any 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.

In general E-discovery involves gathering, managing, preserving and presenting electronic evidence.

Types of electronic records typically sought/produced in Discovery The text, images, calendar files,

databases, spreadsheets, audio files,

animation, Web sites and computer

programs, Email, all email attachments,

deleted messages, business contacts,

metadata, flash video, tape backups,

smart phones and PDAs, digital

signatures and time stamps on record,

system generated reports, scanned

images, digital photograph, .WAV files,

flash drives, faxes, PDF files, web

browser cache, digitally stored voice

mail, MS Word document and

PowerPoint presentation, memo

US on E-Discovery Federal rules of evidence apply to cases filed

in the federal court system. But cases tried in

state, county or municipal court may follow

different rules.

Rule 26(f) of FRCP requires that 21 days

before a Rule 16(b) scheduling conference,

the parties are to meet and confer to discuss

any issues relating to preserving discoverable

information: to discuss any issues related to

disclosure or discovery of electronically stored

information (ESI), including the form or forms

in which it should be produced;

Most of the states in USA has amended the

state civil rules of procedures in lines with the

federal rules of civil procedure.

Importance of E-Discovery• More than 90%records created today

are electronic format(ARMA-American Records Management Association)

• More than 70% electronic info never printed.

• According to the 2005 Litigation Trends Survey conducted by Fulbright & Jaworski L.L.P., 90 percent of U.S. corporations are engaged in some type of litigation

• E-discovery today represents 35% of the total cost of litigation

• More than 17 million cases filed in USA every year.

• An estimated 247 billion emails are sent each day

• The number of worldwide email users is projected to increase from over 1.4 billion in 2009 to almost 1.9 billion by 2013.

E-Discovery process

Records Retention or managemen

t

Identification

Preservation/collecti

on

Processing/

review/analysis

Production

Presentatio

n

Management of E-Discovery Document

Every document shall have detail as to:

Creator of the fileDate of creationStorage locationPersons who had access to

itPersons who viewed,

copied, edited, forwarded or otherwise interacted with the file over its lifetime

When, why and by whom any part of it (including metadata) was modified or deleted.

What can companies/corporations/organizations do to reduce the damages :• Creating of an e-discovery response

team that includes persons from management, IT, the legal department,

• Appointments of employees to be responsible for collection of electronic evidence.

• Preparing a written policy for retaining records.

• Creating a forms and/or use software to track hold orders and document steps taken in response.

• Review and simplifying of backup, retention and data disposal policies to ensure that they comply with local laws and regulations.

• LPO is the best solution for all the above needs.

Document Review ProcessDocument Review is the

4th stage of E-Discovery Process.

Review process involves- 3 -5 stages/levels depending on the case.

1st level- responsive /relevancy and non responsive.

2nd level-privileged and non privileged

3rd Level involves to tag document as hot doc and key doc.

Tools used in E-DiscoveryOnline and offline tools

includeAttennexConcordanceRingtailFile controlStratifyDiscovery AssistantFios On RequesFirstPassKazReview

Who shall bear the costsOn the issue of whether the Requesting or

of the cost to the requesting party.• It is still unclear about the Law, that who shall bear the cost.

• Under the FRCP, presumption is that the responding party is to bear the costs. However party can request for cost shifting on other party. Court can shift the cost in all or part.

• In Dahl v. Bain Capital Partners, LLC, 2009 U.S. Dist. LEXIS 52551 (D. Mass. Jun. 22, 2009) The court denied producers’ request to shift discovery costs to requestor.

• In Lipco Electrical Corp. v. ASG Consulting Corp, New York Court held that the party seeking e-discoveryshould bear the costs of its production.

Electronic Discovery Requests• Both the parties are required

to produce E-Discovery

Evidence in support of their

case.

• Parties can request for the e-

discovery documents from

opponent by filing a motion

Obtaining Document Preservation Orders from the Court• If the party in a suit

presumes that the

other party is likely to

destroy the ESI in their

possession, a party

can request the court

for preservation order.

Failure to Comply with E-Discovery If you are unable to produce

requested evidence, the Court

may allow jurors to presume

that the lost evidence would

have supported the other

side’s claims.

E.g. Coleman v. Morgan

Stanley case in 2005,

If you refuse to produce, the

other party can request for the

sanctions from the court.

Authenticity of E-Discovery Document• shall prove that the documents were

preserved in such a way that were not altered.

• The more you can show that the data was properly secured, the easier it is to convince the Court of its authenticity.

• Data that has been accessible to many different persons could more easily have been modified

• One needs to have in place firewalls, anti-virus, anti-malware and intrusion detection prevention software to prevent data from being changed or deleted by attackers or malicious software.

• Be able to show that you use the most secure client and server operating systems.

• Enable file access auditing so you can show who has accessed the data and when.

• EFS, IPsec, third party encryption.

• Deployment a public key infrastructure (PKI) and digital certificates

• Digitally sign important documents and email messages to authenticate the identity of the creator or sender and ensure that no changes were made.

• Using SMIME, PGP or other content security mechanisms to protect the confidentiality of email messages.

• Deployment of an identity management solution to validate the identities of those who create or have access to data within the organization.

• Deployment of a robust and reliable backup solution

Distruction of evidenceIn SonoMedica, Inc. v. Mohler,2009 U.S. Dist. LEXIS 65714 (E.D. Va. July 28, 2009) civil case  two individual's computers were subpoenaed for examination and the Court ordered the parties to turn over their home computer "without it being touched except to turn it off."  A forensic expert discovered that before turning over the computer "22,603 files/folders had  been affected and that 556 were deleted manually.The court ordered penalty of $108,212.15 in fees and costs against the third parties and refered he case for criminal proceedings.

In a wrongful termination case, Zubulake v. UBS Warburg, a $29 million verdict was returned against UBS because the company had destroyed email messages that were demanded as evidence in the case.

Thank You