Electronic Discovery Navigator

Judge Provided Guidance on Admissibility of Electronically Stored Information

Lorraine v. Markel Am. Ins. Co., Case No. PWG-06-1893 (D. Md. May 4, 2007)

Chief U.S. Magistrate Judge Paul W. Grimm of the district court in Maryland recently shed light on the admissibility of electronically stored information (ESI), an issue "[v]ery little has been written" about, even though a lot of money and manpower are used to get ESI.

For the last several years there has been seemingly endless discussion of the rules regarding the discovery of electronically stored information (“ESI”). . . .   Very little has been written, however, about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes “such facts as would be admissible in evidence” for use in summary judgment practice. FED. R. CIV. P. 56(e).  This is unfortunate, because considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted. The process is complicated by the fact that ESI comes in multiple evidentiary “flavors,” including e-mail, website ESI, internet postings, digital photographs, and computer-generated documents and data files.

Using Pre-culling Strategies to Reduce Data Pool and eDiscovery Costs

Here's a great article on using pre-culling strategies to reduce the data pool and related ediscovery costs. 

Making a molehill out of a mountain: Pre-culling reduces data pool – and related costs – prior to e-discovery

Advances in computer technology allow organizations to store more files, more documents and more correspondence than ever before. While these electronic records may well contain valuable historical information, the size of the data pool can make eventual discovery activities extraordinarily time-consuming and prohibitively expensive.

To reduce these mountains of data into manageable molehills, many organizations and law firms are implementing pre-culling strategies that allow them to minimize the data pool and produce only the most responsive materials at a greatly reduced cost. Pre-culling allows corporate officers, litigators, in-house counsel and computer forensic specialists to review raw data. The most advanced applications provide a structured view into otherwise unstructured data, allowing users to better assess the scope of case information prior to the start of the discovery process.

Companies archive huge data pools

Corporate America has drastically changed its approach to saving documents and files over the past generation. Ten or 15 years ago, business professionals would create a document, print it out, and periodically make decisions about whether or not to file the information. Now, with the increased reliance on computers, the decision no longer revolves around manually filing a document (a relatively passive undertaking), but instead focuses on actively deleting it (a deliberate decision). Basic human nature and the availability of giga-, tera- or petabytes of computer storage conspire to discourage most corporate professionals from hitting the "delete" button and destroying a file.

As a result, most companies have amassed huge volumes of archived materials, saved on hard drives or back-up tape media. Because this information is often stored remotely – out of sight and out of mind – organizations are overwhelmed when they are required to sort through the data pool to produce responsive documents during litigation or regulatory compliance activities. This process takes a great deal of time and requires that significant amounts of archived data be restored, processed and reviewed, resulting in spiraling e-discovery costs.

Computer Forensics: Basics & Strategies

You're in a heated legal battle with your former employee, suing him for misappropriation of trade secrets.  He said he did no such thing.  You beg to differ, and you know that his company-supplied laptop contains the evidence to prove your case.  How do you get to that evidence technologically speaking?  Computer forensics is the answer.  Basically, an expert would examine the laptop (or specifically its hard drive) to determine who did what when and how it was done.

Here are two articles that provide more information about computer forensics: one introduces the subject; the other suggests strategies for performing such investigation.

1.   "Making Forensics Elementary at Your Firm" (By Christy Burke of eDiscovery Law & Strategy)

2.   "A Computer Forensics Strategy to Sink Your Opponent's Legal Battleship" (By Aaron Philipp of eDiscovery Law & Strategy)