Transcript doeLegal

Electronic Discovery refers to the discovery of
electronic documents and data…including e-mail,
web pages, word processing files, computer
databases, and virtually anything that is stored
on a computer or electronic device.
The Sedona Principles
The Sedona Conference
(www.thesedonaconference.org)
The Sedona Principles
Best Practices, Recommendations &
Principles for Addressing Electronic
Document Production(2004)
eDiscovery
 Why is this important…because greater than 48%
of all corporate communications never appear in
paper format…and over 92% of all information is
electronically created…estimated that within 2
years electronic evidence will replace paper as
the primary source of discovery in commercial
litigation.
 so after five years of discussion and public
comment the proposed amendments took
effect on December 1, 2006…specifically
changing language in six rules…Rule 16, 26,
33, 34, 37 and 45…with particular attention to
electronic discovery issues…or “discovery
of electronically stored information (ESI)”.
eDiscovery
…obtaining information in electronic format allows
for the capture of metadata…Metadata is the
electronic information that is often hidden in an
electronic file…”smoking gun”?...perhaps…but
the emails, office memos and other
communications can also support the factual
basis of your clients case.
Unique characteristics
of
electronic data..
eDiscovery
…most corporations and law firms continue to
struggle with the electronic component of
discovery…continuing to only deal with the paper
side and never seeing emails, etc….as this
changes it will be very important for law firms to
have the right tools for review and production of
electronic information…and it will require the law
firm to have a clear understanding as to the
technical information flow within their client or
opponents data systems…
eDiscovery
Unique characteristics of electronic data..
informal nature…email = conversation…mostly
unguarded remarks
preservation…electronic data is easily changed
by simple routine tasks…a “hold” on electronic
information requires a corporation to have a plan
in place and to anticipate possible action
deletion…not necessarily…hitting the delete key
only deletes the pointer to the file, not the file
itself
eDiscovery
Unique characteristics of electronic data..
storage locations…can be stored anywhere in the
world..from local drives to mainframes thousands
of miles away…to USB drives carried on a key
chain
disorganized…seldom in specific locations…so
over the years one person did it this way and
another did it this way, etc
volume…10 employees, 30-60 emails per day =
300-600 emails = 60,000-120,000 per year….1,000
employees?…docs? Calendars? Spreadsheets?
eDiscovery
Unique characteristics of electronic data..
redundancy…daily, weekly, monthly backup
tapes…someone may think they have destroyed
something, but it may live forever on backup
archives of their company or the “to:” company
costs…edata is already searchable, sortable, and
with the right software…manageable…vs paper?
accuracy…no degradation with the 20th file copy
alterations…perhaps impossible to detect in
docs, pictures or audio
eDiscovery - the process
For paper discovery…
an attorney would visit their clients office and
walk through to determine people, file cabinets,
record centers, employee files, off-site storage
and any other relevant place documents may be
filed…typically , you can be comfortable that you
have located all the documents that have been
relevant to the discovery request.
eDiscovery - the process
For electronic discovery…
an attorney will need to walk through the computer
infrastructure with their client…understanding where
documents are created, stored, printed, backed up,
exchanged, etc….in the relevant parties work computers,
and personal computers…it will be the law firm and their
clients duty to “know or reasonably know” that the
electronic data is preserved and where. Attorneys will need
to know technical terms to communicate with their client
eDiscovery - the process
For electronic discovery…
costs to locate, recover, review, and produce
relevant information for a small corporation could
be staggering…and it will be your job to find cost
effective ways to handle this for your client and
defend the results…
be proactive, help your clients understand the
need for strong document retention policies and
encourage the use of them
eDiscovery - electronic structure
Computers – hardware storage
units of measure…bits and bytes
smallest unit of measure on a computer is a bit(0’s and
1’s)…a byte is about 8 bits
a Kilobyte(KB) is = to 1024 bytes
a megabyte(Mb) is = to 1,048,576 bytes
a gigabyte(Gb) is = to 1,073,741,824 bytes
a terabyte(Tb) is = to 1,099,511,627,776 bytes
a word processed test page is 2K or about 2,000 bytes
1 terabyte = 50,000,000 million pages
Perspective
Average Volume: 12Gb
Gigabyte: 1,073,741,824 bytes
Subtotal: 12,884,901,888 bytes
Page size: 3000 bytes
Pages: 4,294,967
Ream: 500 pages
Ream height: 2”
Total Height: 17,180”
Total Height in feet: 1431’ 8”
Sears Tower (Chicago): 1450’
eDiscovery - electronic structure
Computers - software
Application Software – MS Office, databases, etc
Internet Software – browsers, listservs,
chatrooms
Email – corporate, web(Yahoo), InstantMessenger
Operating Systems – Windows 95/98, 2000, XP,
Linux, Apple OS, etc.
Audit Trails, Internet Service Providers
eDiscovery - electronic structure
Computers – LANS, WANS and Internet
Local Area Network – contained within one office
connected by wire or wireless…
Wide Area Network – multi office environment
within the corporation
Off site – redundant disaster recovery system
data could be stored anywhere….
eDiscovery - electronic structure
Other pieces…
PDA’s – IPhones, Blackberrys
Laptops
USB storage devices
Security systems
Telephone systems and voice mail
Cell phones
Digital Cameras
Copiers and Faxes…etc, etc, etc….
eDiscovery - requests
Be careful what you ask for…
you may get it…
And chances are the other side is going to ask for
the same thing in many instances…
Are the courts savvy to all this?
For instance:
Zubulake v.UBS Warburg, 217
F.R.D. 309 (S.D.N.Y 2003)
A dispute involving employment
discrimination allegations
Ultimately the court
concluded that UBS
willfully deleted
relevant emails…
The court granted an
adverse inference
instruction to the
jury…
The court also noted that
defense counsel
was partly to blame because
they failed in its duty to
locate, preserve and timely
produce the emails…
In April 2005, the jury
awarded Ms. Zubulake
damages of
$29,000,000.00