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Chapter VII. Challenges to—and Costs of—Ediscovery 116 results (showing 5 best matches)
- This suggestion was echoed in , 2011 WL 2565666 (N.D. Ill. June 27, 2011), where the court refused to award costs related to electronic discovery absent an explicit agreement by the parties. “Defendant seeks to recover … $17,778.64 for imaging and creating electronic versions of documents which the parties exchanged in discovery. Such expenses are taxable under [section 1920] when the parties have agreed to produce documents electronically. In this case, Defendant has not produced evidence that the parties agreed to such electronic production.”
- CBT requested, and Cisco IronPort produced, a massive quantity of data. In response to the Court’s Scheduling Order, the parties agreed that document production would be made in electronic format. Cisco IronPort has asserted—without contradiction—that production in paper form of the 1.4 million documents plus 6 versions of source code would have cost far more than the fees sought for the e-discovery consultant. A careful review of the GGO invoices reveals that the services provided are not the type of services that attorneys or paralegals are trained for or are capable of providing. The services are highly technical. They are the 21st Century equivalent of making copies. The services are certainly necessary in the electronic age. The enormous burden and expense of electronic discovery are well known. Taxation of these costs will encourage litigants to exercise restraint in burdening the opposing party with the huge cost of unlimited demands for electronic discovery.
- The court then considered UBS’s argument that if further discovery is allowed, all costs should be shifted to plaintiff. Quoting Supreme Court precedent, the court stated “the presumption is that the responding party must bear the expense of complying with discovery requests” and that “cost-shifting should be considered only when electronic discovery imposes an ‘undue burden or expense’ on the responding party.” The court went on to observe that “whether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format (a distinction that corresponds closely to the expense of production)…. Whether electronic data is accessible or inaccessible turns largely on the media on which it is stored.”
- When the process being challenged is highly technical, such as the use of TAR, evidence may be needed to determine whether the particular technology employed was appropriate, or was utilized appropriately. Should a court require evidence from an expert qualified under Evidence Rule 702 or its state equivalent? The questions has not been decided by any court, and commentators are split. In , discussed in Chapter V, the court observed in dicta that “Rule 702 and simply are not applicable to how documents are searched for and found in discovery. In contract, a noted Kansas judge wrote, “Rule 702 and the standard should be applied to experts with technical expertise or knowledge pertinent to a party’s ESI search and review methodologies and who provide the court with evidence on discovery disputes involving these methods.”
- The circuit court then defined the terms “exemplification” and “making copies.” Looking at both case law and secondary sources, it defined “exemplification” as either the creation of demonstrative evidence or the authentication of public records. The noun “copy” is defined as “an imitation, transcript, or reproduction.” The circuit court noted that most of the ediscovery costs consisted of collecting and preserving ESI, processing and indexing ESI, keyword searching of ESI for responsive and privileged documents, converting native files to TIFF, and scanning paper documents to create electronic images. “Of the activities undertaken by the vendors, only the conversion of native files to TIFF (the agreed-upon default format for production of ESI), and the scanning of documents to create digital duplicates are generally recognized as the taxable “making copies of material.”
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Chapter III. Meet and Confer (Rule 26(f)) and Initial Scheduling Conference (Rule 16) 39 results (showing 5 best matches)
- In determining that sanctions were warranted for discovery abuse in , the court analyzed the whole of the discovery process leading up to the parties’ dispute. The parties’ efforts to meet and confer made up a very important part of this larger examination. Thus when attorneys engage in meet and confers and other electronic discovery activities they should anticipate that the court may eventually scrutinize these activities. For this reason a litigant may choose to make a written record (a memo to file) of the meet and confer process. Moreover, the court criticized defendant for shielding its electronic discovery consultant from contact with plaintiffs. Significantly, the court argued that this failure to include knowledgeable electronic discovery consultants in the meet and confer is “antithetical to the Sedona Principles and is not an indicium of good faith.”
- Because electronic discovery consultants are often hired to assist attorneys in retrieving, preserving, and producing electronic information, it might be wise to have these consultants participate in the Rule 26(f) meet and confer process in order to have meaningful discussions about electronic discovery issues.
- The 2015 Amendments add three items to the list of permitted content in the Rule 16 order. These new topics are preservation of ESI, agreements under Rule 502 of the Federal Rules of Evidence, and whether the parties must request a pre-motion conference with the court before making any motion relating to a discovery dispute. The importance of the Rule 26(f) meet and confer is indirectly underscored by Rule 16(f)(1)(B), which authorizes a court to impose sanctions on a party or its attorney if either “is substantially unprepared to participate—or does not participate in good faith—in the [Rule 16 pretrial] conference.” The Rule 26(f) meet and confer requirement facilitates the early identification of electronic discovery issues in order to prevent expensive and time-consuming discovery disputes. Once identified, the parties must be prepared to discuss any potentially problematic electronic discovery issues at the Rule 16 pretrial conference.
- Four other topics were introduced in the 2006 Amendments to Rule 26(f), which required the parties to discuss the following: (1) the preservation of evidence, with a focus on electronic records; (2) the discovery or disclosure of ESI; (3) the form that the production will take; and (4) a procedure for retrieving inadvertently produced privileged information. In addressing these issues attorneys have a duty to cooperate in order to achieve the just and speedy resolution of the case.
- [Rule] 26(f) provides that before a Rule 16 Conference, the parties “confer … to develop a proposed discovery plan….” In the electronic age, this meet and confer should include a discussion on whether each side possesses information in electronic form, whether they intend to produce such material, whether each other’s software is compatible … and how to allocate costs involved with each of the foregoing. [Local Rule] 26(b)(2) addresses the requirements of [Federal Rule] 26(f) and, in addition, requires parties to discuss any “special procedure.” Moreover, the standard initial scheduling order in this District contains instructions on topics to be discussed in the preparation of a Joint Discovery Plan which include “(3) a description of all discovery problems encountered to date, the efforts undertaken by the parties to remedy these problems, and the parties’ suggested resolution of problems; [and] (4) a description of the parties’ further discovery needs.”
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Chapter XII. Admissibility of Digital Evidence 127 results (showing 5 best matches)
- Digital evidence is now offered in virtually every motion, hearing, or trial. Examples include emails and text messages, social media pages, cellphone records, GPS information, spreadsheets, evidence from websites, digitally enhanced photographs, PowerPoint presentations, videos, and computer-generated versions of disputed events. This Chapter addresses whether digital evidence presents admissibility problems different from those associated with traditional “hardcopy” forms of evidence. It is important to note that as of December 1, 2011, the Federal Rules of Evidence were restyled to specifically recognize the potential admissibility and use of electronic evidence. New Rule 101(b)(6) provides that “a reference to any kind of written material or any other medium includes electronically stored information.” Thus, digital evidence is admissible whenever hardcopy evidence of the same type would be admissible.
- court excluded the digital presentation, it must be remembered that Rule 403 is a rule that is geared toward evidence: under Rule 403, relevant evidence must be admitted unless its probative value is by the risks of prejudice, jury confusion, and delay. This means that a digital presentation need not track the underlying facts with absolute exactitude.
- If the probative value of digital evidence is dependent on a scientific premise or procedure, then the rule on expert testimony may apply. For example, a digital manipulation of a photo, or of forensic evidence, may require a showing that it was prepared in a scientifically reliable manner. In federal court, the basic rule on expert testimony is Rule 702, which provides that a qualified expert may testify if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” When presented with challenged expert evidence, the trial judge must act as a “gatekeeper” to determine whether the evidence is reliable.
- We conclude this chapter by noting that there are other forms of digital evidence that we have not specifically addressed—such as YouTube and other online videos or Yelp and other online reviews—but there will always be new forms of digital evidence. Suffice it to say that the principles covered in this chapter will apply to the authentication, and therefore the admissibility, of such evidence. And, as discussed above, the proponent of the evidence must also be conscious of hearsay concerns as well as those of authentication.
- Digital presentation to illustrate an expert’s opinion:
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Preface 8 results (showing 5 best matches)
- Because so few cases—civil or criminal—are tried, discovery has become the central focus of litigation. Today, the vast majority of records are created and maintained electronically. Thus, “paper” discovery is a thing of the past and “ediscovery” is the present and future. The creation and storage of electronic records, and the extraordinary volume and diversity of those records, create new challenges regarding preservation, collection, review, production, and admissibility in evidence. This Nutshell acquaints the reader with the technologies involved, the rules, the case law, and some essential practice considerations. Most importantly, this edition describes the significant amendments to the Federal Rules of Civil Procedure that take effect on December 1, 2015. The impact of these amendments on ediscovery law and practice are explained in the Introduction and throughout the book.
- The first edition of this Nutshell was published in April 2009. Since then, there have been significant developments in technology, case law, the Federal Rules of Civil Procedure and the rules of professional responsibility related to electronically stored information (“ESI”). This Nutshell is intended for a diverse audience—law students studying civil procedure, criminal law, trial practice, or evidence; practitioners looking for a handy guide to issues involving ESI that arise daily; and judges or law clerks looking for a quick introduction or refresher on common ediscovery and electronic evidence issues.
- The co-authors of this Nutshell are Judge Shira A. Scheindlin of the Southern District of New York, and Kenneth J. Withers, the Deputy Executive Director of the Sedona Conference . Judge Scheindlin is recognized as a leading figure in ediscovery, as a member of the Advisory Committee on Civil Rules and a member of the Discovery Subcommittee that drafted the 2006 amendments addressing the discovery of ESI. She is also the author of the landmark and opinions. Mr. Withers has been acknowledged for more than twenty-five years as one of the pioneering authorities in the ediscovery field. Significant contributions to this Nutshell have also been made by members of The Sedona Conference , a leading voice of the legal profession in addressing ediscovery concerns. Sedona has published several frequently cited commentaries in this area, including the authoritative S ...s staff assistants who helped with the updates to this Nutshell—Clifford Bloomfield, Kiel Brennan-Marquez, Peter Dubrowski,...and
- This Nutshell closely mirrors the more detailed treatment of these issues in Scheindlin, Capra, and The Sedona Conference
- We are confident that students and practitioners who use this Nutshell will find it to be an invaluable guide to the current state of ediscovery law and practice. We are sure of one thing: What began as a niche area of civil procedure is quickly becoming a necessary area of proficiency for lawyers in all practice areas. We are honored to do our part by providing this guide to help you achieve competence in this always-evolving field.
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Chapter VI. Production of ESI 165 results (showing 5 best matches)
- Understanding when metadata is relevant and subject to preservation and production represents one of the biggest challenges in electronic discovery. Sometimes metadata is needed to authenticate a disputed document or to establish facts material to a dispute, such as when a file was accessed in a suit involving theft of trade secrets. In most cases, however, the metadata will have no material evidentiary value—it does not matter when a document was printed, or who typed the revisions, or what edits were made before the document was circulated. When addressing forms of production—either in the initial discovery planning conferences under Rule 26(f), or in the formal Request for Production under Rule 34, or in a dispute over production—it is important that all parties, and the court itself, have a common understanding of the terms being used. “Native Format,” for instance, is a term that is often used without a clear, common ...of what it means in the context of the particular case...
- The form of production of electronic records is often the subject of dispute resulting from the parties’ failure to adequately communicate and reach agreement on this issue. In , 247 F.R.D. 43 (D.D.C. 2008), plaintiff filed an action against her former employer alleging gender discrimination and retaliatory termination from her job. In discovery, she moved to compel production of defendant’s Business Plan in its original electronic format, claiming that the instructions in her original Request for Production should be interpreted as a request for all ESI in its original electronic format: “[F]or any documents that are stored or maintained in files in the normal course of business, such documents shall be produced in such files, or in such a manner as to preserve and identify the file from which such documents were taken.” The court rejected plaintiff’s argument, noting that it appears to refer to a physical file cabinet or folder. But even if one assumes that “file” refers to
- When a party intends to produce a significant number of electronic document as digital images, they should be accompanied by a load file to make the production reasonably useable. As defined in , a load file “indicates where individual pages or files belong together as documents, to include attachments, and where each document begins and ends. A load file may also contain data relevant to the individual documents, such as selected metadata, coded data, and extracted text.”
- Because few individuals—or even businesses—own their own email servers, web servers, or social media platforms, and rely instead on commercial Internet service providers, it is common for requesting parties to attempt to obtain discovery of email, social media postings, and other stored electronic files from the nonparty service provider through a Rule 45 subpoena. In most cases, absent express consent of the service provider’s customer, this is prohibited by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2701
- Disputes over the form of production are generally the result of (1) one or more parties’ failure to specify a form of production as allowed by Rule 34; or (2) one or more parties’ lack of knowledge of the technological complexities attendant to electronic discovery. As demonstrated by and the cases discussed below, both of these pitfalls can result in costly and time-consuming motion practice, and potentially a court order requiring duplicative productions in multiple formats.
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Chapter IX. Ethical Issues in Ediscovery 112 results (showing 5 best matches)
- Because it is impermissible to alter electronic documents that constitute tangible evidence, the removal of metadata may, at least in some instances, be prohibited as well. In addition to issues regarding discovery sanctions, the alteration or destruction of evidence can, under some circumstances, also constitute a crime.
- Electronic discovery has significantly changed the way counsel (in-house and outside) interact with their clients when litigation is pending or threatened. Lawyers also may have to confront two potentially countervailing interests—their obligations to their clients and their ethical duties as officers of the court. While this dilemma is certainly not new to attorneys, the age of electronic discovery has added a new twist to the tension between these two obligations. This section identifies ethical concerns that lawyers face regarding their duties of candor, competence, and fairness to the court and opposing counsel when confronting electronic discovery, and concludes with a discussion of the ethics of cooperative, non-adversarial discovery.
- The mandatory initial disclosure requirement of Rule 26(a) and the “meet and confer” requirement of Rule 26(f) are useful mechanisms for expediting discovery, reducing costs, and avoiding conflict, when carried out in the spirit of candor, competence, and fairness found in the rules of professional responsibility. Many thoughtful lawyers—and many clients—would like to go further. Looking at the examples of arbitration and mediation, they question why discovery must be an adversarial process. If the goal of discovery is to uncover facts to be used in settlement talks or at trial, it would seem wise to cooperate in the discovery process, and utilize advocacy and persuasion skills to argue the interpretation of the facts and the application of the facts to the law. Should an attorney’s duty of zealous advocacy and loyalty to the client include getting the best result at a reasonable cost and within a reasonable time frame? In the summer of 2008, these questions led members of The...
- As noted earlier, lawyers cannot relieve themselves of their ethical obligations by outsourcing the work associated with electronic discovery to a vendor without direct supervision. Attorneys have an obligation to monitor the discovery process and ensure that relevant non-privileged information is identified, preserved, reviewed, and produced. For instance, Rule 26(f) mandates that a lawyer must understand and competently investigate the electronic storage systems used by her client so that the lawyer can properly participate in the Rule 26 conference.
- Ensuring that discovery procedures are properly followed involves adequately advising and instructing clients regarding their obligations in discovery. Courts have not shied away from penalizing parties and their lawyers who fail to competently handle electronic discovery. For example, in , 288 F.R.D. 386 (D. Md. 2013), the court held that “plaintiff’s counsel’s failure to identify and produce [client’s email] discovery in a timely fashion and in an acceptable form and manner while suggesting—if not misleading defendants—that it had identified responsible documents is sanctionable.”
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Introduction 28 results (showing 5 best matches)
- The remaining changes to Rule 26(b)(1) are important but will not be as significant as the scope change. The new Rule states that “[i]nformation within this scope of discovery [ , relevant to a claim or defense and proportional to the needs of the case] need not be admissible in evidence to be discoverable. But it eliminated the phrase “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence” which has always followed the phrase “need not be admissible in evidence.” The idea behind this change is to be sure that the scope of discovery is tightly limited to claims or defenses, proportional to the matter, and nothing more. While the requested information need not be admissible in evidence to be discoverable, it cannot be discovered merely because it might lead to the discovery of admissible evidence. Notwithstanding the view of the Advisory Committee, many view this change as a further effort to narrow the scope of permissible discovery.
- There are other important changes to Rule 26. Rule 26(c)(1)(B) explicitly recognizes, for the first time, the power of the court to allocate discovery or disclosure costs when considering granting a protective order. Nonetheless, the Committee Note states that: “Courts and parties should continue to assume that a responding party ordinarily bears the costs of responding.” Rule 26(d)(2) provides that parties may serve Rule 34 requests 21 days after service of complaint— , there is no longer a need to wait for a Rule 26(f) conference among the parties before serving a document request—but the request will not be considered as served, from a temporal perspective, until the date of the first 26(f) conference. The Committee Note provides that the purpose of this change is to “facilitate focused discussion during the Rule 26(f) conference.” This change makes a lot of sense. If the parties know what is being sought in discovery they are more likely to have a productive “meet and confer” to...
- Given this prediction, we begin with the most salient changes in the Rules. The first big change is to Rule 26(b)(1), which has been amended in several ways. , the amended Rule eliminates once and for all any reference to discovery of the “subject matter” of the litigation. , the Rule now defines the scope of discovery as that which relates to the claims or defenses and is proportional to the needs of the case. In order to determine whether a request for information satisfies the proportionality test the parties (and the court if necessary) should consider the (1) importance of the issues at stake, (2) amount in controversy, (3) parties’ relative access to relevant information (this one is a new factor not found in Rule 26(b)(2)(c)(iii), the current proportionality rule), (4) parties’ resources, (5) importance of the discovery in resolving the issues, and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit.
- Finally, the new Rule eliminates the language now found in the scope rule which permits discovery “regarding the existence, description, nature, custody, condition, and location of documents … and the identity and location of persons who know of any discoverable matter.” The rule makers believed that it is now so well established that a party is entitled to such discovery that it was no longer necessary to make such an explicit statement in the Rule. The danger, of course, is that someone will argue that because this language is no longer in the Rule it must mean that a party is not necessarily entitled to obtain this information. We think such an argument should and will be swiftly rejected.
- The most important rule change, other than the changes to Rule 26 just discussed, is to Rule 37(e), which is completely revised. The new version was created in an attempt to create national uniformity with respect to the culpable state of mind needed to impose various sanctions. The new Rule is quite different than its predecessor in both substance and structure. The Rule, which relates only to the loss of ESI, uses the term “curative measures” rather than “sanctions” and is divided into two distinct parts. The first part has no state of mind (intent) requirement at all. It provides that if ESI that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and if it cannot be restored or replaced through additional discovery, then a court may order measures “no greater than necessary” to cure the prejudice, assuming a court makes a finding that a party has been prejudiced by the loss of information...
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Chapter V. Search and Review of ESI 140 results (showing 5 best matches)
- The use of carefully derived and vetted selection criteria is a reasonable approach when dealing with large amounts of electronic data. Indeed, one of the key advantages of electronic data—and one of the key, underlying reasons for dealing with electronic data in electronic form—is that high-speed, efficient, automated methods exist to identify potentially relevant information, thereby allowing large, co-mingled sets of data to be defensibly and efficiently brought into the discovery process.
- Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar-even those lawyers who did not come of age in the computer era-understand this.
- Prior to the advent of electronic discovery, little attention was given to measuring the effectiveness of manual search efforts. As ESI grew, and was explicitly recognized as discoverable in the 2006 amendments to the Federal Rules, keyword search strategies were widely adopted with equally little attention to formal validation. Several spectacular failures, detailed in the previously described cases, resulted in admonishments from the courts to review search terms and to test or sample the results, but best practices for testing and sampling to validate keyword search efforts have yet to become entrenched. The use of TAR for electronic discovery and increased attention to formal validation have occurred contemporaneously; however, there is no reason why TAR efforts should be subject to more (or less) stringent validation than manual review or keyword searches.
- At the simplest level, one can take advantage of the fact that the discovery is in electronic form to perform tasks that can be accomplished quickly, easily, and accurately by computers, such as organizing several thousand (or million) documents in chronological order, or filtering the collection to locate documents with particular objective attributes.
- While this level of judicial case management may occasionally be necessary to break logjams and move a case along, few judges have the time, resources, or inclination to conduct discovery for the parties. In his article,
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Chapter X. Electronic Discovery in Criminal Cases 78 results (showing 5 best matches)
- In 1998, the Department of Justice, together with the Office of Defender Services, the Federal Defender Organizations, and private attorneys who accept Criminal Justice Act appointment formed the Joint Electronic Technology Working Group (JETWG). In 2012, this Group produced three documents for managing ESI discovery in criminal cases, with the goal of achieving the efficient and cost-effective management of post-indictment ESI discovery between the Government and defendants in federal criminal cases. The documents include Recommendation for ESI Discovery in Federal Criminal Cases, Strategies and Commentary on ESI Discovery in Federal Criminal Cases, and an ESI Discovery Checklist.
- Most courts have held that nothing about electronic information requires the government to provide more information than is already required by Rule 16 and the Constitution. Specifically, most courts have rejected the premise that the electronic discovery rules found in the Federal Rules of Civil Procedure are applicable in criminal cases. For example, in , 631 F.3d 266 (6th Cir. 2010), the court held that the federal civil rule requiring electronic data to be turned over in a searchable form is not applicable to criminal cases.
- Another interesting issue is the vast volume of electronic data and how that might affect the defendant’s right to a speedy trial. In 2008 WL 2098044 (S.D. Ohio May 16, 2008), the court found that the sheer volume of data produced by the government—combined with its erratic and unmanageable method of turning it over—prejudiced defendants by the delay necessary to review all the material, and therefore dismissed the indictment based on a violation of the Speedy Trial Act. But in 2010 WL 933752 (D. Haw. Mar. 9, 2010), where the discovery included millions of electronic documents, thirty computer hard drives and three servers, the court denied a similar motion, finding that “the delays in this case may be attributed at least in part to the nature of e-discovery, the complex nature of the alleged crimes, and the necessity of coordinating various branches of government in the investigation.” Any risk of being accused of producing a document dump will be mitigated if the material is...
- In , 2014 WL 4510266 (S.D.N.Y. Sept. 12, 2014), the court addressed the question of whether to appoint a CDA in an eight-defendant narcotics conspiracy case. In that case the court declined to appoint a CDA, although it noted that several other courts had done so. The court expressed serious legal and ethical concerns with appointing a CDA. She began by noting that not all of the eight defendants were similarly situated in the hierarchy of the conspiracy and may have divergent interests in resolving their cases. Her concern was that the CDA—as an attorney—would essentially be representing eight different defendants, which might cause conflicts of interest. The judge also noted that each defendant is entitled to his own counsel who is responsible for every aspect of his defense and who has an undivided loyalty to his client. The judge expressed concern that one attorney should be responsible for searching electronic databases on behalf of all defendants, who might have divergent...
- In , 588 F.3d 464 (7th Cir. 2009), the Seventh Circuit addressed in great detail a claim by a defendant that his conviction should be reversed—and the indictment dismissed—because the Government had either intentionally withheld or destroyed evidence that was crucial to his ability to present a complete defense. Defendant was convicted of mail fraud and wire fraud involving telemarketing for a credit card that required a “one time processing fee of $159.59.” The scheme generated close to one hundred thousand customer complaints. Defendant claimed that the Government failed to provide him with the electronic records, in their original format, that the Government obtained from the many complainants. In denying the motion to dismiss the indictment—or to reverse the conviction—the court found that although the Government lost certain emails, there was no proof that the Government intentionally withheld electronic evidence for the purpose of depriving defendant of the use of that
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Chapter I. Electronic Discovery: Types and Sources 52 results (showing 5 best matches)
- As illustrated above, the volume and complexity of ESI, as created and managed in the ordinary course of business, would be enough to distinguish electronic discovery from conventional, paper-based discovery. The collection of ESI from custodians, system administrators, and third parties is discussed in detail in Chapter IV. However, electronic information systems provide a more technologically sophisticated method of collecting relevant ESI—computer forensics.
- The key question regarding the recovery of deleted ESI is whether or not the facts surrounding the matter at hand suggest that data recovery is needed. As with imaging, data recovery software is commonly available, and because many of the training programs in the field of electronic discovery revolve around forensics and data recovery, there is a bias in favor of utilizing these tools. But unless an argument can be made that the matter at hand will benefit from the recovery of deleted ESI, there is no reason to attempt such recovery just because the technology exists to do it.
- Discovery is the process of identifying, preserving, collecting, analyzing, and producing evidence in legal actions. “Ediscovery” is simply the discovery of information and data that is stored electronically, including email, instant messages, social networking content, and any other information that may be stored on desktops, laptops, file servers, mainframes, smart phones, home computers, in the cloud, or on a variety of other platforms. This information and data is collectively referred to as electronically stored information, or “ESI.”
- The Sedona Conference® Glossary: E-Discovery & Digital Information Management
- The information presented on an organization’s website, and the information gathered from visitors to that website, comprise a potentially vast source of ESI subject to discovery. Increasingly, organizations are connecting their Internet access points to databases and other application systems in an attempt to provide a low cost, single point of access to customers and prospective customers.
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Chapter IV. Collection of ESI 116 results (showing 5 best matches)
- The collection of data from mobile and personal devices, such as smart phones, tablets, and digital watches, is a rapidly-evolving area of ediscovery, presenting a host of technical issues that may require expert assistance. As discussed in Chapter II.D., Bring Your Own Device (“BYOD”) policies in many organizations are introducing a plethora of information technology management issues, including the preservation and collection of data in response to civil discovery, internal audit, and government investigation responsibilities.
- The preceding three Chapters on technology, preservation, and the discovery planning conferences set the stage for the actual process of electronic discovery: the collection of potentially relevant ESI; the search and review of that ESI for relevance to specific claims, defenses, disputed facts, or privileges in the litigation; and the production of ESI in response to specific requests under either Rule 34 or Rule 45. These are covered in Chapters IV, V, and VI. These three Chapters do not purport to be a comprehensive set of “how to” instructions for conducting ediscovery activities. Instead, they highlight the considerations that need to be addressed in undertaking these activities, based on the rules and the case law. In doing so, they illustrate that these are not simply mechanical tasks, but complex undertakings that require planning, execution, and supervision by persons well versed in both the specific circumstances of the case and the applicable law.
- Qualcomm violated its discovery obligations by failing to produce more than 46,000 emails and documents that were requested in discovery and that Qualcomm agreed to produce…. Qualcomm has not established “substantial justification” for its failure to produce the documents. In fact, Qualcomm has not presented any evidence attempting to explain or justify its failure to produce the documents. Despite the fact that it maintains detailed records showing whose computers were searched and which search terms were used….
- Ediscovery, however, involves the collection of a much greater volume of potentially responsive ESI from sources with which the custodians may not be technically adept at searching or extracting. The custodian may not even be aware of the existence of important sources of responsive ESI, such as shared drives, cloud-based applications, or informal backup media, which are not maintained or managed by any particular custodian. In addition, electronic discovery may involve an entirely different set of custodians—the organization’s IT staff—who regularly handle the ESI and are far more technically adept at searching and extracting ESI, but have little or no knowledge of its substantive content or its relevance to the litigation, and as such, may be overlooked in the collection effort.
- The problems of custodian-based collection are compounded by the proliferation of locations in which responsive ESI may be found. In particular, outside counsel may not fully appreciate the extent of their clients’ global information systems. In , 2014 WL 800468 (S.D. Fla. Feb. 28, 2014), “[t]he Court granted Patheon’s motion for a forensic analysis of Procaps’ electronic media because … [Procaps] permitted its personnel to self-search for electronically stored information (“ESI”) without ever seeing Patheon’s discovery requests or without receiving a list of search terms from its counsel.” The court noted that “Procaps is headquartered in Colombia and its employees speak Spanish, although some employees also speak and write English. Procaps, however, generated an initial list of only eight proposed search terms, all in English.” In an effort to forestall the anticipated court order, Procaps’ counsel sent two attorneys to Columbia “during the previous 10 days to verify the search...and
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Chapter II. Preservation of Electronic Information 179 results (showing 5 best matches)
- As noted in the Introduction to this book, Rule 26(b)(1), governing the scope of discovery, will change as a result of the 2015 Amendments to the Federal Rules of Civil Procedure. A brief summary here will set the stage for the remainder of this Chapter. Discovery is limited to non-privileged matters that are relevant to any party’s claim or defense. Discovery as to the “subject matter” of the litigation is no longer permitted even upon a showing of good cause. In addition, and for the first time, the scope of discovery is defined as that which is proportional to the needs of the case. The test for proportionality is set forth in the Rule and requires the parties (and eventually the court) to assess six factors: (1) the importance of the issues at stake in the action; (2) the amount in controversy; (3) the parties’ relative access to relevant information; (4) the parties’ resources; (5) the importance of the discovery in resolving the issues; and (6) whether the burden or expense of...
- While discovery requests clearly put a party on notice of the relevance of data requested, what about pre-filing preservation letters? In , the court stated that “prudent counsel would be wise to ensure that a demand letter … addresses … preservation obligations.” Properly crafted pre-litigation preservation letters can impose the duty to preserve. For example, in , 2008 WL 681766 (W.D. Mo. Mar. 6, 2008), the court held that plaintiff’s preservation letter sent six days after a fatal accident seeking preservation of the tractor-trailer allegedly at fault, and another request eighteen days after the accident for preservation of driving records and on-board electronic tracking devices were sufficiently specific to put defendant on notice that litigation was imminent.
- What can be done to ensure that nonparties holding relevant ESI and other evidence preserve it until a stay of discovery, for example under the Private Securities Litigation Reform Act, is lifted? Courts may permit parties to issue “preservation subpoenas” on nonparties. Even where nonparties’ document retention and destruction policies may result in imminent destruction of relevant ESI, a party still needs permission to issue the subpoena.
- Despite the existence of preservation obligations, federal privacy laws may prevent preservation and production of relevant ESI held by parties and nonparties. For example, the Stored Communications and Transactional Records Act prohibits providers of electronic communications services from disclosing the content of stored customer communications to any person, except the federal government upon a court-issued warrant. The Act has no exceptions for civil actions. Many other federal laws also limit disclosure of private information, but allow entities holding such information to disclose it in response to court-approved discovery requests.
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Chapter VIII. Spoliation and Sanctions 71 results (showing 5 best matches)
- Because of the volume and complexity of ESI that may be subject to discovery, there are vastly increased opportunities for parties and their lawyers to negligently, recklessly, or willfully alter or lose potentially discoverable ESI. The growth of electronic discovery has been accompanied by a growth in the volume and complexity of spoliation case law. Federal courts have not taken a uniform approach to spoliation claims. Old Rule 37(e) provided little guidance to courts as to the standard they should apply when making a determination as to whether to impose a sanction. That Rule merely provided as follows: “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” The Rule said nothing about what level of culpability was required in order to warrant the imposition of a particular sanction. As a...
- A similar approach was taken by the Second Circuit in , 720 F.3d 387 (2d Cir. 2013). In that case plaintiffs sued their insurance company for failure to indemnify them fully for the loss they suffered when their residence was destroyed by fire. Defendant sought any photographs of the items lost in the fire. Plaintiffs denied the existence of any such photographs. One witness—an appraiser—testified that she had once seen photographs of some of the items lost in the fire. Defendant sought an adverse inference instruction telling the jury that it could infer that plaintiffs had failed to produce relevant evidence. Plaintiffs, in turn, argued that the appraiser was mistaken as to when she saw such photographs and they were no longer in existence at the time of the fire and the subsequent lawsuit. The court gave a permissive adverse inference instruction which told the jury that it found that the photograph existed and was in plaintiffs’ possession at the time of the suit and plaintiffs...
- In the first federal appeals court decision to discuss sanctions for the failure to produce ESI, the Second Circuit held in ., 306 F.3d 99 (2d Cir. 2002), that “discovery sanctions, including an adverse inference instruction, may be imposed where a party has breached a discovery obligation not only through bad faith or gross negligence, but also through ordinary negligence.” The case involved the late production by plaintiff of a vast trove of relevant email. Defendant was unable to effectively use the tardy production at trial and asked for an adverse inference instruction against plaintiff. The trial court refused defendant’s request, finding that plaintiff had not acted in bad faith or with gross negligence. The appellate court reversed, holding that even the negligent destruction of evidence may warrant an adverse inference. The court found that plaintiff’s “purposeful sluggishness” in producing the email suggested more than negligence. While the failure to properly handle the...
- Rule 37(a) of the Federal Rules of Civil Procedure gives the court power to issue orders to compel disclosure or discovery, and Rule 37(b) gives the court power to sanction a party—and sometimes the party’s attorney—for failure to comply with such an order. The court has broad discretion to determine the appropriate sanction. The following sanctions are identified in Rule 37(b)(2)(A):
- In , 485 F.3d 1032 (8th Cir. 2007), a bus company sued the driver of a delivery truck alleging that the truck rear-ended the bus. Defendant appealed the judgment, asserting that the trial court erred in refusing to sanction plaintiff for the loss of some data stored in an electronic control module (“ECM”) that would have helped establish that when the bus was struck it was traveling below the posted speed limit. The trial court found that defendant had suffered no prejudice because the ECM data that had been preserved identified the specific mechanical defect that slowed the bus, and several bus passengers testified as to how the bus was driven before the collision. The court concluded—and the appeals court affirmed—that “[t]here must be a finding of prejudice to the opposing party before imposing a sanction for destruction of evidence.” However, under the new Rule 37(e), as discussed below, when a party acts “with the intent to deprive another part of the information’s use in...
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Copyright Page 5 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.
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Outline 103 results (showing 5 best matches)
Index 116 results (showing 5 best matches)
Chapter XI. Privilege Issues Arising During Electronic Discovery 33 results (showing 5 best matches)
- Several states have adopted their own versions of Rule 502. But in states without such a rule the question is whether the state court must enforce a 502(d) order entered by a federal court—which provides that disclosure in the federal court could not be a waiver in the state court. The Advisory Committee on the Federal Rules of Evidence concluded, after significant research, that a state court would be required, under the Supremacy Clause, to enforce a Rule 502(d) order. In 2009 WL 464989 (N.D. Tex. Feb. 23, 2009), a law firm sued a client in a billing dispute, and defendants removed the action from state to federal court. After removal, defendants sought to stay discovery, arguing that production of privileged information in the federal proceeding would waive privilege in a related state court proceeding. The court denied the stay, recognizing that a 502(d) order would protect against waiver and that the state court should “recognize” the federal court order. The court issued a...and
- Consequently, parties often enter into agreements to control the risks of waiver when privileged ESI is disclosed during discovery. These agreements typically cover inadvertent disclosure, but can also cover intentional disclosures. Generally speaking there are two kinds of agreements: “quick peek” and “claw back.” Under a “quick peek” agreement the producing party provides certain requested materials for initial examination, without waiving any privilege or protection. The requesting party then designates the documents it wishes to have produced. This designation is the Rule 34 request. The responding party then responds in the usual course, screening only those documents actually requested for formal production and asserting privilege claims as provided in Rule 26(b)(5)(A). Under a “claw back” agreement, a mistaken disclosure of privileged data is not deemed to be a waiver as long as the producing party identifies the documents mistakenly produced, and the documents must then be...
- When lawyers produce information in response to a discovery demand, they must take care not to disclose their clients’ privileged information. In the past, such a disclosure could constitute a waiver of the privilege and, under some circumstances, might have resulted in a finding of —meaning that the client would have to make a further production of all privileged communications on the same subject matter as the previously disclosed documents. Careful lawyers have always engaged in pre-production review of documents to determine whether they are privileged.
- Fear of the consequences of mistaken disclosure of privileged information—a phenomenon known as inadvertent waiver—added cost and delay to the discovery process for all parties. The risks inherent in mistaken disclosures were aggravated by some decisions holding that a mistaken disclosure constituted a waiver of privilege for all documents or ESI on the same subject matter of how carefully the party tried to prevent disclosure of privileged information during discovery. Moreover, the risks of an adverse ruling on a privilege question were significantly increased by the Supreme Court’s decision in
- A. THE RISKS OF WAIVER AND THE COSTS OF PRE-PRODUCTION PRIVILEGE REVIEW OF ELECTRONIC DATA
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Table of Cases 28 results (showing 5 best matches)
- Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft Corp., In the Matter of a ................................................................... 250
- Law Firms of McCourts and McGrigor Donald, In re Application of .............................................................. 287
- Actos Produtcs Liability Litigation, In re ...... 237, 322, 334
- Aguilar v. Immigration and Customs Enforcement (ICE) ............................................................................ 222
- Automotive Refinishing Paint Antitrust Litigation, In re ............................................................................. 288
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Advisory Board 6 results (showing 5 best matches)
Table of Rules 17 results (showing 5 best matches)
- Fed. R. Civ. P. Rule 16(a) ............................................... 108
- Fed. R. Civ. P. Rule 16(a)(2) ........................................... 108
- Fed. R. Civ. P. Rule 16(a)(3) ........................................... 108
- Fed. R. Civ. P. Rule 26(a) ............................................... 351
- Fed. R. Civ. P. Rule 26(b)(5)(A) ...................................... 399
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- Publication Date: December 24th, 2015
- ISBN: 9781634597487
- Subject: Civil Procedure
- Series: Nutshells
- Type: Overviews
- Description: A concise treatment of all issues relating to electronically stored information (ESI) in litigation today, and a must-own for both civil and criminal practitioners. The authors have substantially rewritten each chapter and added chapters on anticipated changes to the Federal Rules of Civil Procedure governing ESI (which take effect December, 2015), technology-assisted review of ESI, and the use of ESI in criminal cases. Includes extensive treatment of preservation, search for and production of ESI, privilege protection, sanctions, ethical obligations of attorneys with respect to technology, and how the federal rules can be and have been adopted to accommodate digital evidence. Written by the author of the landmark Zubulake opinions and the Sedona Conference, which is at the forefront of thinking and writing on electronic discovery.