Unit 9: E-Discovery

Topic for Seminar

• Assignments due this week• E-Discovery• Wrap-up

Assignments Due This Week

• Seminar• Final Exam• Course Survey

Test Prep

• What is discovery and what is its purpose?

• What rules guide the litigation process?

• What is e-discovery? What types of electronic documents are discoverable?

• What rules were amended to address certain electronic document submissions?

• If party purposefully destroys documents, which party pays for the costs associated with that?

Test Prep

• What can happen if you can’t check all documents before producing them for discovery?

• What is a “clawback” provision in discovery?• What is a major consideration for ediscovery?• What is the track changes button used for?• What is the most common software program used in a

law office?

Test Prep

• What is the menu button and the toolbar?• What is a template?• What is a file extension?• What is the search tool used for in Word?• How can you restrict access to a document?• How do you restrict permissions in Microsoft Office?

Test Prep

• What is the ribbon?• What is the difference between Save and Save As?• How can you learn about a word processing software?• What are the standard parts of a spreadsheet?• What is a cell?• What is a workbook?• What is the property bar in Quatro Pro?

Test Prep

• What is a row in a spreadsheet?• Why would we use a graph in a spreadsheet?• What is found using the Prepare button in Microsoft

Office?• What is a “what if” table?• What is “compatibility?”• What is encryption?

Test Prep

• What is the type ahead feature?• Two most common office management programs?• What are integrated functions?• What is a program shell?• What are events?• What are matters?• What are contacts?

Test Prep

• What is a calendaring program used for?

• What is a chart of accounts?

• What is a check register?

• What are ledgers and journals?

• What is a trial notebook?

• Why do we use case management software?

• What are the benefits of presentation programs like Powerpoint?

Test Prep

• Do the presenter’s ideas and concepts get highlighted when using a presentation program?

• What is the first slide in Powerpoint used for?• What are sounds and animations in Powerpoint?• What is imagery in Poweroint?• What are some Powerpoint pointers?

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

The term e-discovery refers to electronic discovery (also called e-discovery or ediscovery) and 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.

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 or government sanctioned hacking for the purpose of obtaining critical evidence is also a 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. Furthermore, digital data is difficult or impossible to completely destroy, particularly if it gets into a network. This is because the data appears on multiple hard drives, and because digital files, even if deleted, can be undeleted. In fact, the only reliable means of destroying data is to physically destroy any hard drive where it is found.

Types of Data In the process of electronic discovery, data of all types can

serve as evidence. This can include text, images, calendar files, databases, spreadsheets, audio files, animation, web sites, and computer programs. Even malware such as viruses, Trojans, and spyware can be secured and investigated. Electronic mail (e-mail) can be an especially valuable source of evidence in civil or criminal litigation.

Computer Forensics

• Computer forensics, also called cyber forensics, is a specialized form of e-discovery in which an investigation is carried out on the contents of the hard drive of a specific computer. After physically isolating the computer, investigators make a digital copy of the hard drive. Then the original computer is locked in a secure facility to maintain its pristine condition. All investigation is done on the digital copy.

Example of eDiscovery

• http://www.geek.com/articles/google/french-find-email-passwords-and-other-incriminating-evidence-in-google-street-view-data-20100621/

Issues Associated with E-Discovery

• E-discovery is an evolving field that goes far beyond mere technology. It gives rise to multiple legal, constitutional, political, security, and personal privacy issues, many of which have yet to be resolved.

• What issues do you think should be considered?• Source:

http://searchfinancialsecurity.techtarget.com/sDefinition/0,,sid185_gci1150017,00.html

Privilege Waiver?

• Take a look at this case:• http://www.ediscoverylaw.com/2010/09/articles/case-su

mmaries/sons-receipt-of-privileged-emails-did-not-result-in-waiver-where-son-was-a-necessary-conduit-in-delivering-attorneys-emails-to-plaintiffs/

• What do you think?

Avoiding Hidden E-Discovery Hazards

In a courtroom, a judge’s order for a party to produce its relevant e-mail and corporate information may seem straightforward and unambiguous.

However, responding to that demand forces a party to avoid getting snagged by any number of pitfalls that could contribute to incomplete discovery responses, improper data processing, and the wrath of the requesting party and Court.

Complicated challenges hide just beneath the surface of a simple request to “identify and produce relevant electronically stored information (ESI).”

The Amount of Reviewable Data When dealing with compressed archives, the only way to

determine the actual amount of data that must be processed and reviewed is to open all archives and extract the individual files that they contain.

E-mail messages are also a notorious source of creating ambiguity regarding the amount of relevant information that must be reviewed or produced (attachments, multiple duplicative emails).

Producing the Right Amount of Information

ESI (electronically stored information) that has been collected in the format in which it was stored in the ordinary course of business may be unsuited for production. Disputes about proprietary or non-standard file formats have diminished, but particularly in the production of e-mail messages, potential for conflict still remains.

Email FormatRequesting parties that seek e-mail messages produced in “native

format” may not fully understand exactly what they are seeking.

However, converting messages in another format into a .PST archive often drops one or more metadata fields that may have been populated in the original e-mail message. In addition, custom .PST files containing only responsive documents may bear little or no relationship to the way that these e-mail messages were actually stored in the ordinary course of business.

E-Discovery Consultants To the extent that a legal team lacks the resources or expertise

to address these issues head-on, working with one or more e-discovery specialists can help the team understand specific dangers—and take appropriate preventative action.

Qualified consultants and e-discovery service bureaus can’t remove all the complications involved with successfully working through the e-discovery portion of a case, but their insight can keep projects on track while letting the core legal team focus on developing the rest of the client’s case.

source: http://www.discoveryresources.org/featured-articles/avoiding-hidden-e-discovery-hazards/

Square D Co. v. Scott Elec. Co., 2008 WL 2779067 (W.D. Pa. July 15, 2008)

In June 2007, the court had ordered, among other things, that defendant Globe Electric Supply Co. “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 2779067 (W.D. Pa. July 15, 2008)

Counsel for 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 should not be allowed to examine the remaining 11 workstations.  The court did not accept Globe’s argument primarily because Globe had 4 times refused to comply with the discovery request.

source: http://www.ediscoverylaw.com/2008/07/articles/case-

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.

• Cost effective strategies for identifying, gathering, and preparing only necessary information for review.

Media Restoration

• Retrieval of information from backup tapes or legacy systems, from standard email and word processing programs to arcane systems and uncommon file types.

• Cost-effective strategies for narrowing the 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 more than 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 and click” functionality, enabling even the least technical lawyer to become an 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?