E-Discovery
Copyright 2008 Thomas F. Goldman
Overview
WHAT HAVE THEY DONE TO US NOW?
OH NO,
NOT AGAIN!!!!!!!!!!
The New RulesWhat everyone is talking about.
FEDERAL RULES OF CIVIL PROCEDURE-
Federal- Setting a standard?
•Rule 16
Management
Pretrial Conferences; Scheduling;
•Rule 26
General Provisions Governing Discovery;
Duty of Disclosure
•Rule 33
•Rule 34
Interrogatories to Parties
Production of Documents, Electronically
Stored Information, and Things and Entry Upon Land for
Inspection and Other Purposes
•Rule 37
Failure to Make Disclosures or
Cooperate in Discovery; Sanction
•Rule 45 Subpoena
•Form 35
Report of Parties’ Planning Meeting
•ELECTRONIC DISCOVERY
• – THE PROCESS
• ( and the lingo)
•ELECTRONIC DISCOVERY – THE PROCESS
•What is:
•a “RECORD,”
•Redaction,
•Production Numbering (Bates
Stamping),
•Privilege and “ClawBack” Clause,
•Converting- Electronic v s “PAPER,”
•Filtering,
•De-duplicating,
•Coding .
•What is a “RECORD”
IN THE WORDS OF THE COURT
“Record” defined
“record” defined. As used in this Order,
“record” means any book, bill, calendar, chart, check, compilation, computation,
computer or network activity log, correspondence, data, database, diagram, diary,
document, draft, drawing, e-mail, file, folder, film, graph, graphic presentation,
image, index, inventory, invoice, jotting, journal, ledger, machine readable material,
map, memo, metadata, minutes, note, order, paper, photograph, printout, recording,
report, spreadsheet, statement, summary, telephone message record or log,
transcript, video, voicemail, voucher, webpage, work paper, writing, or worksheet, or
any other item or group of documentary material or information, regardless of
physical or electronic format or characteristic, and any information therein, and
copies, notes, and recordings thereof.
ICARILLA APACHE NATION v. U.S., (Fed.Cl. 2004) No. 02-25L.United States Court of Federal Claims.Filed: April 19, 2004a.
Redaction
Redaction is the removal of confidential
information, or
at least that which is claimed to be
confidential, or
material prepared for trial under the work
product doctrine.
Production Numbering (Bates Stamping)
sequential numbering of documents
•Privilege and “ClawBack” Clauses
“claw back” under FED. R. CIV. P. 16 (6)
“any agreements the parties reach for
asserting claims of privilege or of protection
as trial-preparation material after
production;”
Senate Passes Evidence Rule 502: 2/27/08
On February 27, 2008, the Senate approved by unanimous
consent without amendment, a bill adding new EVIDENCE
RULE 502 to the Federal Rules of Evidence.
The legislation addresses waiver of the attorney-client privilege
and work product protection and is identical to proposed
Evidence Rule 502, which was approved by the Judicial
Conference of the United States and transmitted to Congress
for its consideration in September 2007.
Unlike other amendments to the federal rules of practice and
procedure that take effect unless Congress acts affirmatively to
modify, defer, or reject it, "[a]ny such rule creating, abolishing,
or modifying an evidentiary privilege shall have no force or
effect unless approved by Act of Congress.”
•Converting- Electronic v s “PAPER”
Documents are copied or scanned and saved
in some electronic file format.
•Filtering
Filtering is the process used to scan or
search the documents for relevant terms
in an attempt to narrow the focus, such
as a filter to eliminate documents
created before or after a certain date.
De-duplicating
De-duping, is the term used to
describe the process of electronically
eliminating the duplicates of the
same document.
•Coding,
the process of capturing case-relevant information
(e.g., author, date authored, date sent, recipient,
date opened, etc.) from a paper document.
Objective coding, also referred to as bibliographic indexing.
This includes the author, type of document, recipient, and date.
Subjective coding, which identifies keywords within the
document or other criteria not related to bibliographic
information.
•
•Difference Between
• Computer Forensics and
•Data Gathering
Is Meta data important?
Resource or system metadata, information
about the location of the file,
Content or application metadata,
information about the content and author.
• Ethical issue
–Litigation Holds
• Ethical issue
–Spoliation
• Ethical issue
–Confidentiality
In electronic communications
• Creating an Effective Discovery Plan
–What is Discoverable
• Creating an Effective Discovery Plan
–Interrogatories
for E discovery
• Creating an Effective Discovery Plan
–Deposition Notices
for E discovery
• Creating an Effective Discovery Plan
–Production Requests
for E discovery
Preservation
WHAT WAS DONE TO PRESERVE POTENTIALLY
RESPONSIVE E EVIDENCE?
Preservation
WHEN WERE PRESERVATION ACTIVITIES INITIATED?
IDENTIFICATION
WHAT ARE THE DATA REPOSITORIES AND
APPLICATIONS BEING USED?
COLLECTION
ARE YOU FAMILIAR WITH
YOUR CLIENTS’ COMPUTER SYSTEMS?
COLLECTION
HAVE YOU DETERMINED WHAT THE COSTS AND
TIME FRAMES ARE FOR PRODUCTION?
COSTS and BURDENS
HAVE YOU CALCULATED THE ESTIMATED
COSTS ASSOCIATED WITH DISCOVERY?
COSTS and BURDENS
DO YOU HAVE DETAILED DOCUMENTATION
SUPPORTING CLAIM OF INACCESABILTY DUE TO COST?
PRODUCTION FORMATS
DO YOU KNOW THE FORMAT OF THE DATA?
PRODUCTION FORMATS
DO YOU KNOW POTENTIAL IMPACT OF REVIEW INCLUDING:
REDACTION
DE-DUPLICATION
CONFIDENTIALITY
PRIVILEGE
TIME TO COLLECT AND PRODUCE
• Sources of Information
–FIOS
–Krollontrack
–Ediscoverylaw (K&L |GATES)
http://www.fiosinc.com/resources/dmj/index.asp#journal_subscribe
http://www.krollontrack.com/newsletters/clu.aspx
http://www.ediscoverylaw.com/
More information
Thomas F. Goldman, Esq.
[email protected]
WWW.PRENHALL.COM/GOLDMAN