Electronic Discovery Navigator

eDiscovery Tool to Authenticate eDocuments

So, you've found the email that could prove your client was in the right all along.  Now, how you do you prove that the email is authentic?

If the recent case of Lorraine v. Markel American Insurance Co ., 241 F.R.D. 534 (D. Md. 2007) is of any guidance, the court now requires that the electronic document be authenticated "by the most rigorous standard that may be applied."

Surety's AbsoluteProof might be the answer.

Here's how the product works.

Here's what Surety's CEO have to say about AbsoluteProof.

FRCP Rule 37(f): The "Harbor" Is Not as "Safe" as You Think

What Protection Does Rule 37(f) Provide?

Rule 37(f) is a new rule added by the amendments to the Federal Rules of Civil Procedure that became effective Dec. 1, 2006. It's been described by commentators in many different ways, including "safe harbor," "lighthouse" and "minefield." One of the judges who sat on the rules committee that proposed Rule 37(f), said that it's meant to be more like a "bubble bath" than a "safe harbor" -- something to make companies feel good about handling electronically stored information in litigation.

(Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1186089401546.)

Best Practices for Dealing With Metadata

FRCP And MetaData - Avoid The Lurking E-Discovery Disaster

Dennis Kennedy writes in this recent article about practical ways to avoid the lurking ediscovery diaster that metadata can cause.

As I discussed previously here, here, and here, metadata is a troublesome issue in ediscovery.  Metadata is commonly defined as "data about data."  (However, defining it as "hidden data about data" is more appropriate because metadata is not readily visible to the person reading the document.)  It is hidden information which describes how the document was formatted and how, when, and by whom it was collected, created, accessed, and modified.  For example, the metadata of a Word document would include the file name assigned to the document, where the document is saved, when it was created and last modified, and who could read it and write to it.

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.

A Hands-On Approach to Litigation Holds

Here's a good way of looking at the problems with implementing litigation holds.

Implementing a "litigation hold" is not the simple matter it might seem. The challenges are both human and technical. Understanding them may help oppose the admission of harmful records, avoid claims of spoliation and obstruction of justice and exploit the carelessness of adversaries.

HUMAN CHALLENGES

Some challenges, common to both electronic and paper records, involve practical difficulties in the application of settled law. Meeting them may be especially difficult where litigation is merely anticipated rather than pending, such as in the case of a grand jury investigation.

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TECHNICAL CHALLENGES

In implementing a litigation hold, special challenges arise from five characteristics of electronic records: volume, duplicability, dynamic content, metadata and dispersion. See The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production.

(Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1175072636613.)

Note:  For those interested, there are more discussions on litigation holds in the "Categories" Section on the left under "Litigation Hold."

Ideas for Managing Company Emails

Getting a grip on your company's emails before litigation begins is a good idea (to say the least), as the Intel incident showed (see previous posts here and here).

So, how does one go about doing that?  Here are some email management ideas worth considering.

The bottom-line is start early and check regularly for compliance.

Predictability and Consistency in eDiscovery

Here's a strategy for managing electronically stored information ("ESI") and eDiscovery that Chris Paskach suggests would lower the costs in responding to requests for ESI and provide greater predictability and reduced risks.

1. Prepare : Preparation is proactive and needs to be undertaken before an e-Discovery event occurs. It involves understanding all of a company's ESI and assessing the processes and risks related to creating, retaining and retrieving ESI in the normal course of business and in response to regulatory and litigation events.

2. Plan : Planning is also proactive and refers to having plans in place to identify, preserve and review ESI in response to the typical requests a company is likely to receive. In addition, event-specific planning is reactive and requires understanding and addressing a specific request for ESI when it occurs.

3. Preserve : Preserving ESI in response to a specific e-Discovery event is reactive and involves the issuance and implementation of litigation holds and performance of forensic data preservation processes.

4. Pare : Paring down the high volumes of potentially responsive ESI is also reactive and involves applying the most effective filtering techniques to focus high-cost resources on the documents that relate to the matter at hand, while minimizing the effort expended on unrelated and irrelevant documents.

5. Process : Processing the ESI related to a specific event is also reactive. The review tools and processes should be focused on achieving the highest efficiency and reliability in the review process.

6. Produce : Producing the responsive, non-privileged documents in a matter is reactive and should support the efficient production in the agreed formats, combined with reliable tracking of all documents that have been produced.

(Source: http://www.metrocorpcounsel.com/pdf/2007/March/35.pdf.)

New Jersey Federal Judge's Top Ten eDiscovery Tips

Here's a post by an attendee to the recent ABA First Annual National Institute on eDiscovery, summarizing and elaborating on federal district court Judge John J. Hughes' "Top Ten Tips for eDiscovery."

1.  Talk to your client

2.  Talk to opposing counsel

3.  Talk to and identify your client's techies -- (See my earlier post on what counsel can learn by talking to the CIO.)

4.  Educate the judge

5.  Continuing disclosure -- (See this case for why counsel needs to be proactive.)

6.  Make Specific discovery requests

7.  Show "good cause" for production

8.  Explain "undue hardship" in opposition -- (See here for what happens when counsel cannot explain why the requested information was not produced.)

9.  Connect eDiscovery with eTrial

10.  Be professional

(Source: http://ralphlosey.wordpress.com/2007/03/14/judge-hughes-top-ten-e-discovery-tips/.)

Six Hard-Learned Lessons About EDD

As a follow-up to my earlier post on the eDiscovery Survival Guide for Corporate Counsel, here are six important lessons learned from the recent case of In re NTL, Inc. Securities Litigation, Case No. 02-3013, -7377 (S.D.N.Y. Jan. 30, 2007).

1.  Plan ahead -- Start early to get a good understanding of a client's computer/storage systems and retention policies.

2.  Stay focused -- Don't neglect to follow up on the litigation hold memo after it is circulated.  The attorney must be proactive, not reactive, during the entire ediscovery process.

3.  Hide the ball at your peril -- Evading one's ediscovery obligations can result in severe sanctions.  In In re NTL, Inc. Securities Litigation, the court imposed an adverse inference spoliation sanction against the defendants.

4.  Know what you "control" -- Its definition is broader than you think, as the court in In re NTL, Inc. Securities Litigation explained:

Under [FRCP] Rule 34, "control" does not require that the party have legal ownership or actual physical possession of the documents at issue; rather, documents are considered to be under a party's control when that party has the right, authority, or practical ability to obtain the documents from a non-party to the action.  (Emphasis added; internal quotation marks omitted.)

5.  Don't overdelegate -- Make sure the attorney who has been delegated to litigate ediscovery issues understand their legal consequences.

6.  Or else -- Gross negligence in preserving documents can land one in hot water, as In re NTL, Inc. Securities Litigation illustrated:

[T]he Gordon plaintiffs have demonstrated that defendant NTL Europe's failure to preserve documents and ESI ["electronically stored information"] relevant to plaintiffs' allegations was at a minimum grossly negligent. In light of NTL Europe's failure to call the Demerger Agreement to the Court's attention, the Court could find bad faith, but it need not reach that issue. Thus, no extrinsic proof of relevance is necessary, and the Gordon plaintiffs are entitled to an adverse inference spoliation instruction.

(Source: Boehning, Christopher H. and Toal, Daniel J., "Six Hard-Learned Lessons About EDD" (Mar. 2, 2007).)