Electronic Discovery and Digital Evidence in a Nutshell
Authors:
Scheindlin, Shira A. / SEDONA CONFERENCE
Edition:
2nd
Copyright Date:
2016
13 chapters
have results for eDiscovery
Chapter VII. Challenges to—and Costs of—Ediscovery 27 results (showing 5 best matches)
- The reported case law on ediscovery is rife with parties being challenged to defend their ediscovery process. But in the overwhelming majority of cases, particularly with experienced and cooperative counsel, ediscovery proceeds reasonably smoothly, providing requesting parties with the information they need without imposing undue burdens or costs on the responding party. There is no need for recourse to the court for motions to compel, for protective orders, for schedule modifications, or sanctions. The cases that appear in the law reports are the exception, those in which there is a dispute about the conduct of ediscovery: , just to name a few that have been discussed in the preceding Chapters. Whether or not ediscovery generates more disputes than any other aspect of pretrial procedure has not been statistically demonstrated, but these high-profile cases create the impression that ediscovery invariably descends into contentious motion practice about preservation notices,...
- To demonstrate that an ediscovery process was reasonable, counsel should be prepared to demonstrate that due diligence was exercised in the development of the process. Some courts have approved checklists and guidelines to facilitate the Rule 26(f) conference process, but these may also assist a party in developing and documenting a reasonable ediscovery process.
- , 674 F.3d 158 (3d Cir. 2011) was an antitrust case in which summary judgement was granted for defendant. After appeals had been exhausted, defendants filed a Bill of Costs requesting taxation of ediscovery costs. The district court determined that defendant Hoosier should be awarded $125,580.55 in ediscovery related costs and that defendant DMS should be awarded $241,788.81. Plaintiffs appealed. The circuit court, delving deeply into statutory analysis and legislative history, held that the district court did not have the authority to award ediscovery costs beyond scanning of hard copies and conversion of native files to TIFF.
- Parties engaged in ediscovery are not held to a standard of perfection, either in requests or responses. Under Rule 34(b)(1)(A), the requesting party must describe “with reasonable particularity each item or category of items” requested. Under Rule 26(g)(1), the responding party or counsel must certify that the response has been formed “to the best of the person’s knowledge, information, and belief … after a reasonable inquiry.” This is a particularly important consideration in ediscovery, given the complexity and volume of ESI that may be subject to preservation or responsive to discovery requests.
- Objective, reliable statistics about the cost of ediscovery are difficult to obtain. Ediscovery is inherently complex, involving a number of different actors engaged in preservation, collection, data processing, review, and production. Accounting for “soft” costs such as employee downtime is problematic. Lawyers, consultants, and litigation support professionals may inflate or minimize cost data for strategic purposes. Parties and their counsel are averse to disclosing their costs, viewing them as part of the confidential attorney-client relationship.
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Chapter V. Search and Review of ESI 7 results (showing 5 best matches)
- Fourth, the Court found it very helpful that the parties’ ediscovery vendors were present and spoke at the court hearings where the ESI Protocol was discussed…. Even where as here counsel is very familiar with ESI issues, it is very helpful to have the parties’ ediscovery vendors (or in-house IT personnel or in-house ediscovery counsel) present at court conferences where ESI issues are being discussed. It also is important for the vendors and/or knowledgeable counsel to be able to explain complicated ediscovery concepts in ways that make it easily understandable to judges who may not be tech-savvy.
- Texas attorney and ediscovery expert Craig Ball put these steps into language more familiar to practicing lawyers in his article,
- (i) Defendants may retain ediscovery vendor Kroll OnTrack and employ Kroll OnTrack and its computer assisted review tools to conduct document review;
- Lawyers may be well versed in using Westlaw, Lexis, and the Internet to search for case law precedent. However, the information retrieval task of searching for “the” case (or select few cases) to support a particular legal proposition made in a brief is a very different one than the task confronting the lawyer in ediscovery, for several reasons.
- course of business in a wide variety of formats, often by people using informal language inconsistently, and seldom organized for later retrieval. In the case of ediscovery, counsel and client are under a duty to make a reasonable search for “all” relevant, non-privileged documents and ESI responsive to the particular request. The task of finding “all” relevant documents and ESI is increasingly difficult due to the volume and inherent complexities of ESI. Even in the simplest case requiring a search of online email, there is no guarantee that using keywords will always prove sufficient.
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Outline 8 results (showing 5 best matches)
Introduction 1 result
- Because this updated Nutshell is being published in 2015, we must begin by describing, as concisely as possible, the newly revised Federal Rules of Civil Procedure specifically relating to ediscovery. Much of what follows in this book will have to be studied in the context of these new Rules. Before beginning our substantive chapters, then, we provide a brief overview of the new Rules.
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Chapter IX. Ethical Issues in Ediscovery 4 results
- Ediscovery requires a team effort. For example, litigants are well advised to create a “preservation triage team” of insiders who are familiar with the party’s systems and operations and can act quickly to preserve appropriate materials. The preservation effort will often require the help of outside experts and litigation support personnel. Other professional teams may be necessary at later stages of discovery, particularly document review prior to production. But the team approach itself raises new issues. How should the ediscovery team be managed? Who is responsible for managing it? How should duties be allocated among the team members? Who has the final say between counsel and client? Who bears the ultimate responsibility for following court orders, complying with the Federal Rules of Civil Procedure, and upholding the Rules of Professional Conduct?
- illustrates the critical importance of communication between counsel and client and among ediscovery and litigation team members. Knowledge may be imputed from client to counsel and from lawyer to associated lawyer whether or not it is actually communicated. A junior associate who is in charge of responding to discovery requests and preparing witnesses must communicate with the lead trial counsel who will be making arguments and representations in open court and at sidebar.
- ...amended is Model Rule 1.6 governing the Confidentiality of Information. The significant change from the perspective of ediscovery is found in subsection (c), which states that “[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client.” Comment 18 addresses the new subsection. This Comment makes several important points. Comment 18 specifically states that unauthorized access or inadvertent disclosure will not be an ethical violation if the lawyer has made “reasonable efforts to prevent the access or disclosure.” The Comment goes on to state the factors that should be considered in determining whether the efforts to prevent such access or disclosure were reasonable. These factors include: the sensitivity of the information, the likelihood of disclosure in the absence of additional safeguards, the cost of additional safeguards, the difficulty of...
- With the explosion of the use of ESI in business and in litigation, both junior and senior attorneys must familiarize themselves not only with the changes to federal and state rules regarding ediscovery but also with developing technology in order to satisfy the required level of knowledge necessary to uphold their duty of candor. Courts have not hesitated to sanction counsel for violating the duty of candor in cases involving discovery of ESI.
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Preface 5 results
- 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.
- . 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 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
- (3d edition, 2015), published by West Academic Publishing. We begin with Chapter I on the explosion of ESI and how it is created, stored, and retrieved. Chapter II discusses the preservation of ESI, covering such questions as when the duty to preserve attaches, what records must be preserved, and how preservation is accomplished. Chapter III covers the required meeting among counsel at the outset of litigation, when counsel must address issues surrounding the preservation, discovery, and production of ESI. The next three chapters address the essential processes of ediscovery—collection, search and review, and production. Chapter VII addresses challenges to and the defense of ediscovery process, and the possibilities for cost-sharing, cost-shifting, or cost recovery at the conclusion of the litigation. Chapter VIII discusses sanctions for spoliation for the failure to produce ESI, with a focus on amended Rule 37(e). The remaining chapters discuss professional responsibility,...
- 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
- 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.
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- Given the amount of ESI that exists within the average organization, the ability to identify, locate, retrieve, and preserve the ESI most likely to be relevant to the matter at hand becomes essential to planning and executing efficient ediscovery.
- 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.”
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Index 4 results
Chapter VI. Production of ESI 3 results
- Generally hidden, but an integral part of ESI, such as “track changes” or “comments” in a word processing file or “notes” in a presentation file. While some metadata is routinely extracted during processing and conversion for ediscovery, embedded data may not be. Therefore, it may only be available in the original, native file.
- A deposition of a representative of a corporation or entity—as opposed to a specifically identified witness—is not new. There has been a long and relatively undisturbed tradition permitting the deposition of the individual in the best position to know certain information, and whose testimony speaks for and is binding on a partnership, corporation, or other legal entity. However, since the advent of ediscovery, depositions noticed under Rule 30(b)(6) or its state equivalent have taken on additional importance in counsel’s effort to understand the creation, identification, and retention of potentially relevant ESI. Indeed, an early 30(b)(6) deposition may help the parties negotiate ediscovery issues before they arise.
- Companies and organizations should consider ediscovery issues when selecting a witness for Rule 30(b)(6) depositions pertaining to electronic preservation and production matters. If the witness does not understand the systems and architecture involved in the request, the result could be prolonged litigation, confusion, and disputes over the costs of finding the appropriate person. Accordingly, parties routinely designate an IT professional or record retention manager as the appropriate 30(b)(6) witness. The search for the right person for a
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- Rule 26(f) requires attorneys to meet before the Rule 16 scheduling order is due, and discuss what discovery they plan to undertake and how they will accomplish that goal. The Rule forces parties to focus on the problems of preservation of ESI and ediscovery in general at the very outset of a litigation instead of potentially facing sanctions motions on the back end for failure to preserve or produce information.
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- Although most of the action in the ediscovery arena has been on the civil side, many of the same issues are now arising in criminal cases. The similarities are that criminal defendants, like civil litigants, routinely use computers, social media, cell phones, and GPS systems. One major difference, however, is that electronic evidence in criminal cases is likely to be in the possession, custody, or control of non-parties who have nothing to do with the suspected criminal activity, such as telecommunications providers, social media hosts, banks, or employers whose computer applications and facilities the criminal suspect may have used.
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Chapter IV. Collection of ESI 6 results (showing 5 best matches)
- The court heard from plaintiffs’ ediscovery expert, who testified that “there is no indication that [the agencies] undertook any analysis to determine whether there were other words that should have been included in their search[es], including, for example, a review of a sample set of the documents that did not contain the … search terms.” There was, according to the expert, an “absence of any evidence of a thoughtful process in selecting and testing search terms.”
- One of the significant differences between ediscovery and discovery of conventional paper correspondence, files, and business records is that ESI is more likely to be maintained by nonparty service providers. Email may be on the servers of an Internet Service Provider (ISP), web pages will likely be on the servers of a web hosting service, text messages will be held on the servers of a telecommunications company, and many business functions use cloud computing service providers. Preservation of ESI maintained by nonparties is discussed in Chapter II.C. Here, we discuss the collection of that information.
- 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.
- In the days before ediscovery, “custodians” were usually relied upon to collect documents responsive
- 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.
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- , one of the pioneering cases involving ediscovery, the court created a distinction between accessible and inaccessible ESI. In that era, much attention was paid to whether backup tapes had to be preserved. The court determined that backup tapes held solely for disaster recovery were inaccessible, whereas those accessed in the regular course of business were accessible. The court went on to hold that parties need not suspend their normal systems for overwriting disaster recovery tapes even when they are aware that the preservation duty has been triggered, unless they know, or should know, that the ESI contained on them is potentially relevant to the claim and that data is non-duplicative of other accessible information. But the court created an exception for backup tapes of key players, if the data on those tapes were not available from a more accessible source and were likely to contain relevant information.
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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.
