Transcript Corporate EES Fundamentals

Fundamental Issues
Of
Electronic Discovery
Bob Robinson
General Counsel
Renew Data Corp.
(512) 458-3004
Renew Data Corp.
Electronic Discovery
I. Technical Basics and Practical Matters
II. Elec. Discovery Under the Civil Rules
III. Spoliation Issues
IV. What to Do Now
Renew Data Corp.
Fast-Changing Environment
Exploding amounts of electronic data
Emerging body of EE case law and
rules
Sarbanes-Oxley Act and USA Patriot Act
Abundance of disputes where source
data is primarily electronic
Renew Data Corp.
Emerging Risks
Information is discoverable in its
native format
30(b)6 deposition of SysAdmin
Process attacks are more common
New emphasis on cooperation with
investigators
“Don’t Ask, Don’t Tell” is history
Renew Data Corp.
BEWARE
THE THREEHEADED
MONSTER!
PCs & Servers
+ E-mail system
+ Backup system
= A de-facto data
repository!
Renew Data Corp.
Electronic - Better Than Paper
Searchable
Keyword searches are essential
More certain, costs less & saves time
More information than just the text
Efficient for sharing and copying
Can be protected from alteration
Candid behavior
Renew Data Corp.
31 Flavors of Elec. Data
Backup tapes
PC (home/office), laptop hard drives
Network file servers
FAX servers
Voicemail systems
Palm Pilots, PDAs
Mobile Internet Devices
Kleiner v. Burns, 48 Fed. R. Serv.3d 644,
2000 WL 1909470 (D. Kan., 2000)
Renew Data Corp.
Deleted Files
Sectors & Clusters
 What are deleted files?
 What can be undeleted?
 Deleted files & fragments searchable
 History/record of deletions is important
Data constantly changes as the machine is used
 Take a forensically sound “image” right away to avoid
data alteration and destruction
 Data can be preserved at low cost
Renew Data Corp.
Civil Rules
Electronic information clearly is discoverable
 Rowe Entertainment, Inc. v. William Morris Agency,
205 F.R.D. 421 (S.D.N.Y. 2002)
Electronic format may be required - paper
production alone may not be sufficient
 Anti-Monopoly Inc. v. Hasbro, Inc., 94 Civ. 2120, 1996
WL 22976 (S.D.N.Y. Jan.23, 1996)
 Storch v. IPCO Safety Products Co., 1997 U.S. Dist.
LEXIS 10118, 1997 WL 401589 (E.D. Pa. July 16,
1997)
Renew Data Corp.
Civil Rules
Backup tapes required if relevant
 See generally In re CI Host, Inc., 2001 WL 34047373
(Tex. Nov. 21, 2002)
Copies of files aren’t enough – need forensic images
 See generally Taylor v. State, 2002 WL 31318065 (Tex.
App. Oct. 17, 2002)
Deleted data requires extra relevance
 Rule 34 – requests extend to records “reasonably
available in the ordinary course of business”
 Antioch Co. v. Scrapbook Borders, 2002 WL 31387731
(D. Minn. April 29, 2002)
Renew Data Corp.
Time is of the essence
Note for the discovering party
Key – get producing party to preserve data
as soon as practicable, with proper forensic
techniques
 Gates v. Bando, 167 F.R.D. 90 (D. Colo. 1996)
 Taylor v. State, 2002 WL 31318065 (Tex. App.
Oct. 17, 2002)
Crucial factors:
 Get the forensic image of each hard drive
 Get them to stop recycling backup tapes
Renew Data Corp.
Time is of the essence
Note for the discovering party
Immediately send a letter to ask opposing
counsel for preservation
 Forensic image duplicate
 Stop recycling backup tapes
 Don’t delete files
 Don’t defragment or compress any hard drives
 Don't add new software or operating systems
 Don't access subject files until imaged
If you get one of these letters, watch out!
Renew Data Corp.
After Preservation
Propose a discovery plan
 Electronic searching - keywords
 Residual data areas - agree to search or not
 Restoration of deleted files - may be important
 Method for review of privileged/private docs.
 Method for production (specify data and media
formats)
 Archival and disposal of electronic data
 Retention of third-party service provider - cost
Renew Data Corp.
Systems Administrator
Deposition
Alexander v. F.B.I., 188 F.R.D. 111 (D.D.C. 1998)
Things to investigate:
 Network and backup system overview
 Email system and backup
 Backup system specifics (policy and hardware,
software)
 Records retention / litigation response
(who is in control?)
 Web server info
 Voicemail or fax server info.
 PDAs issued & used
Renew Data Corp.
Responding in Discovery
Don’t open files, use forensic image process
Stop recycling backup tapes
Try to limit search to active files
 TX Rule 196.4; Rowe Entertainment, Inc. v.
William Morris Agency, 205 F.R.D. 421
(S.D.N.Y. 2002)
Describe your response plan (in detail)
Seek protection from burdensome requests
Renew Data Corp.
Responding in Discovery
Chain of Custody Issues
Was the file altered during copying process?
Was the file altered during analysis?
Reliability of copying process?
Was a forensic image taken, or should it have
been?
Data preservation and security?
Who handled and processed the data, and how
can you prove it is “as-was”?
Renew Data Corp.
Bearing the cost
Cost elements.
Imaging of hard drives and servers
Restoration/retrieval of backup data
Restoration/recovery of deleted files
Searching tapes & hard drives, sorting,
de-duplicating and other processing work
 Is on-site work needed?
Costs may be allocated between the parties.
 Rowe Entertainment v. William Morris Agency,
205 F.R.D. 421 (S.D.N.Y. 2002)
Renew Data Corp.
Spoliation of electronic data
The Duty to Preserve
 Party on notice when it reasonably foresees or anticipates
litigation, even before the plaintiff manifests an intent to
sue. National Tank Co. v. Brotherton, 851 S.W.2d 193
(Tex. 1993)
 Totality of the circumstances test will be used. Trevino v.
Ortega, 969 S.W.2d 950 (Tex. 1998)
 Rule 3.04(a) of TX Disciplinary Rules: a lawyer may not
unlawfully obstruct access to, delete, or alter relevant
information, or counsel others to do so.
 Good article: Judge Curt B. Henderson, The Duty to
Preserve Electronic Data, 66 Tex. B.J. 24 (Jan. 2003)
Renew Data Corp.
Spoliation of electronic data
Real Consequences
 Financial sanctions, including personal liability
• Danis v. USN Communications, Inc.,
2000 WL 1694325 (N.D. Ill. Oct. 23, 2000)
 Adverse inference instruction
 Default judgment
 Sarbanes-Oxley – potential criminal sanctions
 PR – avoid the trust crisis spawned by Enron!
Renew Data Corp.
Using an expert
Retained as a neutral expert Officer of the Court
Assists in defining scope and process
Creates images with proper chain of custody
Performs agreed searching/filtering
Provides data for privilege review
Formats and provides data to requesting party
Renew Data Corp.
Using an expert
Retained directly by a party Gives tactical & strategic advice in discovery
Preserves hard drives via forensic imaging
Inspection agent for other party’s expert
Assists in defining scope and process
Creates images with proper chain of custody
Performs agreed searching/filtering
Provides data for privilege review
Renew Data Corp.
Advising Clients about Retention
Data retention/destruction policies and practices
 Remember both!
Counsel’s role when litigation is anticipated
What is reasonable for the future?
Costs are coming down with new technology
Law is coalescing to give guidance for production
and cost allocation
Lawyers and judges are more savvy
Result: judges will require more productions
Renew Data Corp.
Best Practices – What to do now
You will have to produce data – plan for it
Implement data retention policies
Move quickly to preserve data to avoid
spoliation/obstruction charges
Become familiar with EE solutions and
providers – shop around
Counsel’s role – remember Nancy Temple!
Renew Data Corp.