eDiscovery

Presented by: Patrice BrownMay 18, 2010

E-DISCOVERY

Evolution of Technology Discovery Demands of the 21st Century Readiness and Responsible Compliance The Pitch

E-Discovery Overview

The Emerging Minefields

What is E-Discovery?

DISCOVERY OF ELECTRONIC

DATA

Electronic discovery is the process of collecting (also called “harvesting”) preparing, reviewing, and producing electronic documents (also known as ESI) in the context of the legal process.

Understanding ESI

What is Electronically Stored Information (ESI)?

“…. ALL INFORMATION ON COMPUTERS.”

**While not specifically defined in the FRCP, electronically stored

information, or (ESI), is defined in the November 2006 issue of The

Third Branch (Newsletter of the Federal Courts) simply as,

“all information on computers.”

TWO-TIER SYSTEM

Active, online data, Near-line data (short for near online), Offline storage and archives

Backup tapes, commonly using data compression,Erased, fragmented, or corrupted data

ACCESSIBLE NON-ACCESSIBLE

(ESI) is divided into five categories, which are grouped into two tiers based on the effort and cost needed to access ESI.

Common forms of ESI in E-discovery

Electronic content such as Email, Email with attachments (all kinds), Text files, PowerPoint, Spreadsheets, Voicemail, Instant and Text messaging, Databases, Proprietary applications, Internet, Intranet, Wikis, Blogs, RSS feeds, (plus cache files, slack space data, cookies), Data on PDAs, Cell phones, Videoconferencing & webcasting, Purchase orders, Contracts and Social networking content

Metadata, Ephemeral data (data that last only a few hours that passes through/stored on RAM), Legacy or Orphaned data, CRM, Native data, Tiff, PDF, Erased, Fragmented or Damaged (“Residual”) data, Off-Line Archival data, Off-line backup or disaster recovery data, Unicode Support, Non-Unicode Support, UTF-8

Common Sources of ESI

Mainframes, network servers, PAN, MAN, LAN, CAN, local drives (including network activity logs),DVDs, CD ROMs, floppy disks, laptops, backup tapes, external hard drives, desktops, file servers, smartphones, employees’ home computers, fax machines, and printers, etc.

Record Retention

PROBLEM: Matching up the retention span of various e-records with the working life of information technology

SOLUTION: Create a data retention policy that incorporates emerging technologies on how you manage information

- e.g. Instant messaging, unified messaging and social media….

Electronic Discovery Reference Model

Stages of Electronic Discovery

Identification

Preservation Collection Processing Review Analysis Production

Identification

Understand the “inventory” of ESI.

Determine the subset of information that will be relevant for further processing.

IDENTIFY RELEVANCY

Preservation

This is a critical step that ensures that ESI is protected from spoliation and modification

MOST IMPORTANT STAGE OF EDRM

•KNOW WHEN TO PRESERVE ESI

•KNOW HOW TO PRESERVE ESI

•IT YOUR DUTY TO PRESERVE ESI

Collection

Phase where all relevant ESI is collected from the various sources.

DUPLICATION

Processing

PRIORITIZE RELEVANT INFORMATION

ESI CONVERSION AND COMPUTER FORENSICS

Review

This is where the contract attorneys come in! 

- ESI Redaction- Relevancy Evaluation- Legal Examinations

Analysis

Determining exactly what the ESI means in the context of the legal action at hand

Developing summaries of relevant information

Determining the key issues on which to focus, etc.

Production

Delivering the relevant ESI to any parties or systems that will need it

Delivering ESI in the appropriate form(s), including DVDs, CD-ROMs, paper, etc.

Presentation

The specific forms of presentation for ESI will vary widely depending on the content:

How the content will be presented

Where the content will be presented

By whom will the content will be presented; and other factors

Case Law Relevant to Electronic Discovery

Federal regulations (and many states) require early collaboration

Findings on Case law relevant to eDiscovery is continuously evolving

Identify and anticipate important issues to consider prior to the Rule 26(f) conference

Federal Rules of Civil Procedure (FRCP) governing e-discovery

KNOW

THE

RULES

December 1, 2006, the Federal Rules of Civil Procedure embraced the 21st Century world!

Rules 16,26,33,34,37, 45 as well as Form 35, require attorneys to pay specific attention to electronic discovery issues.

KEY PROBLEM AREAS THAT MAKE E-DISCOVERY DISPUTES SUCH A BIG DEAL

PRESERVATION AND SPOILATION

SCOPE, FORM AND COST OF PRODUCTION

PRIVILEGE

WHEN THE E-DISCOVERY PROBLEMS ARISE, THEY ARE A BIG

DEAL

THEY CONSUME A TREMENDOUS AMOUNT OF THE PARTIES’ TIME AND MONEY

THEY CONSUME A TREMENDOUS AMOUNT OF THE COURT’S TIME

WHY ARE THESE PROBLEM AREAS MORE SIGNIFICANT WITH E-

DISCOVERY THAN WITH TRADITIONAL PAPER DISCOVERY?

BECAUSE OF THE ENORMOUS VOLUME AND MANY SOURCES OF

E- INFORMATION!

WRAP-UP:Elements of Successful Electronic Discovery

A successful e-discovery effort entails most or all of the following elements:• Identifying relevant systems and data• Compelling preservation of potentially relevant digital evidence• Seeking production of digital evidence in manageable formats• Honing preservation and production through “meet and confer” sessions• Memorializing preservation and production duties as court orders• Assimilating, analyzing and using the electronic data produced• Identifying discovery abuses and seeking the Court’s intervention

Tip: Prudent corporations quickly implement written legal holds if litigation appears to be on the horizon.

- THE PITCH -

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EDUCATE

ADVISECOUNSEL

LISTEN

SOLUTIONS….. SOLUTIONS….SOLUTIONS!!!

Its all about communication….

Principle 2.01 Parties should discuss electronic

discovery with their opponents before initial status conference

And should meet and communicate with clients before meeting with opposing counsel

“One great relationship, many great services!” PB

LISTEN – Early discussion and communication are imperative

EDUCATE – FRCP Preservation Obligations

COUNSEL and ADVISE – Understand that Compliance WILL COST YOU, be prepared to make the necessary changes and meet demands of eDiscovery

Listen

ECA – Early Case Assessments to gain full understanding of your eDiscovery needs

Consulting with you prior to the meet and confer on what is or is not accessible data, to collection, processing, review, and production

Educate

THE KEY TO SUCCESS IS PLANNING!Let us educate you on demands

and legal obligations surrounding ediscovery, and let us be your go to firm of “outside experts”!

Counsel & Advise

I will personally act as liaison between IT and Legal to identify where data is stored and reduce potential litigation risks

Advice on changes to processes, rules and regulations, and your current and future options

On-site Discovery Case Management (Planning and implementation of best practices: network maps, record retention policies, eDiscovery pro tocol, LRT – Litigation Response Team, custodian interviews, etc.)

PYE eDiscovery Solutions…..

Containing CostsReducing Risks, andAvoiding Sanctions

Partner with Pye

A core team that is always on staff

eDiscovery professionals with the experience and partnerships to fulfill all of your service requirements

Customized plans for the management of your discovery – all of it - through every step of the litigation process

Inside edge on latest trends, technology and legislation in the arena of eDiscovery

CONCLUSION

It’s challenging. It’s expensive. But it’s the single greatest litigation advantage of the 21st century, for legal professionals who are willing to learn and fulfill their legal and compliance obligations.

Having a good e-discovery strategy is an organization's first line of defense in a court proceeding.

Being able to interact with a fast-growing universe of digital devices and data repositories are a must!

Whether you are a law firm looking to outsource your document reviews, or an inside counsel who wants to contain costs and maintain control, consider partnering with Patrice Brown at Pye Legal, for all of your e-discovery needs!