Electronic Discovery Navigator

Talking to your client: 101 of ESI Preservation

Talking to your client: 101 of ESI Preservation

"Due to the importance of discovery, courts take it very seriously.  Especially the duty to preserve documents.  Ever since Zubulake v. UBS Warbug, LLC, the threat of sanctions paid by a party has loomed the realm of discovery.  Zubulake and its predecessors have brought into focus the question of when do you retain documents, how do you properly retain documents, and to what extent you are bound to preserve these documents.

What follows is a quick guide to starting that conversation with your client when the duty to preserve arises."

The Duty to Preserve ESI -- Do You Know What You Have to Do?

The Duty to Preserve ESI -- Do You Know What You Have to Do?

"Much has been written about the duty to preserve electronically stored information (ESI) --  it's expensive, challenging given the breadth of organization's IT infrastructures, and requires cooperation and communication among departments (legal, IT and records) that do not usually see each other as partners, but rather as clients.  Meeting the legal duties imposed by the Federal Rules of Civil Procedure to preserve, collect and produce ESI in litigation situations now requires a new way of thinking."

Technology Pathways Releases New E-Discovery Tool for Electronically Stored Information

Technology Pathways Releases New E-Discovery Tool for Electronically Stored Information

"Technology Pathways, LLC announced today the release of e.s.i.DiscoverTM, a new electronic-discovery search appliance which helps companies locate and preserve responsive documents to comply with court ordered discovery requests. The e.s.i.Discover Search Appliance can index millions of documents contained on servers and workstations throughout an enterprise and allow rapid searching based on sophisticated searching techniques to identify the responsive documents such as word documents, spreadsheets or PDF's. Searches typically take only a few minutes and can be easily modified to hone in on the required documents quickly. Once identified, the e.s.i.Discover Search Appliance can collect and authenticate the documents using an MD-5 or SHA-1 hash signature. These documents can then be saved for export to other popular e-discovery work flow products for further processing and presentation."

New Addition to Blog Roll

eDiscoveryInfo is another blog that I read.  It's on my Blog Roll.

Check out their reference to a post about returning to paper production?

Complete Enterprise Archive for Data Preservation

Complete Enterprise Archive for Data Preservation

"AXS-One a leading provider of scalable, high-performance records compliance management (RCM) solutions, today announced the release of the AXS-One Compliance Platform 3.7, the much-enhanced version of its award-winning flagship product. Optimized for scalability and policy-driven data retention, Version 3.7 is the first and only archiving solution to provide comprehensive, integrated functionality to ensure that records pertaining to a specific case or cases are preserved and managed, in line with litigation hold orders and that an auditable chain of custody supports testimony requirements."

White House Ordered to Preserve Emails

U.S. District Court Judge Henry Kennedy, a Clinton-appointee, ordered the White House to preserve copies of emails in backup tapes, after rejecting the Justice Department's proposal of a White House declaration promising to preserve all backup tapes.  The order was issued pursuant to two lawsuits brought by two private groups, Citizens for Responsibility and Ethics in Washington and the National Security Archive.

Marbury v. Madison, Part II?

Here's the article.

eDiscovery: Does Your Enterprise Know Where Its Data Is?

eDiscovery: Does Your Enterprise Know Where Its Data Is?

By Karen A. Schuler, ONSITE 3

Ten years ago it was important for corporate IT directors and legal teams to understand the locations of information and records, but in today's marketplace it is now a necessity. Due to an ever growing body of guidelines and rules at both the state and federal levels, corporations must now identify, hold, manage and produce potentially relevant information and records more quickly than ever. Failure to do so can result in claims of spoliation and significant sanctions.

The complete article is here.

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.)

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."

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.)