Unit 9: E-Discovery Our Last Seminar :(

1. Unit 9: E-Discovery Our Last Seminar :(

2. Review and Incompletes • Any questions on Units 1-8? • Incompletes • Requests due Tuesday, 12/14 • All incomplete work due 12/31 • Must have completed approx. 75% of work or I will not grant your request • Form for requesting incomplete is in docsharing • If no incomplete in place, all work due by last day of class:, i.e., by 12/21 at midnight (NO EXCEPTIONS)

3. Did you know? • Approximately 99% of all recorded information is electronic? • This includes text (e.g., docs, IMs, email, etc.) , audio,(e.g. voicemail), video (e.g., Youtube), and photos (pdfs and jpgs)

4. What is eDiscovery The term e-discovery refers to electronic discovery (also called e-discovery or eDiscovery) refers to any process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case.

5. What is E-Discovery E-discovery can be carried out offline on a particular computer or it can be done in a network. Court-ordered or government sanctioned hacking for the purpose of obtaining critical evidence is also a type of e-discovery.

6. What Kinds of Information Are We Looking For? • Business Records? • Social Media? • Log-in records? • What else?

7. Electronic Documents Include • Information stored, created and/or utilized using computer technology • Business applications such as word processing databases • Internet applications such as email and web traffic • Information stored on peripheral and mobile devices • Computer based records storage (discs, tapes and drives) • Social media such as Facebook, blogs, tweets, etc. • Adapted from FJC PowerPoint ”Electronic Discovery”

8. How Does ESI Differ from Paper? • ESI – Electronically Stored Information (e.g., stuff stored on hard drives/floppy discs, flash memory (thumb/flash drives), optical discs (DVD/CF) • Volume • Variety of sources • Dynamic quality • Hidden information: metadata and embedded data • Dependent on system that created it • Deleting doesn’t delete it Adapted from http://www.fjc.gov/public/pdf.nsf/lookup/eldscpkt.pdf/$file/eldscpkt.pdf

9. The amount of data is STAGGERING • One printed word processing document = # of edocs • 13 (1 hard drive + 12 monthly backups) • 40 (3 internal recipients) • 184 (5 drafts reviewed by recipients) • 364-1444 (email used to circulate drafts) • From FJC PowerPoint “Electronic Discovery”

10. Why is E-Discovery So Useful? Digital data can be electronically searched with ease, whereas paper documents must be scrutinized manually. Furthermore, digital data is difficult or impossible to completely destroy, particularly if it gets into a network. This is because the data appears on multiple hard drives, and because digital files, even if deleted, can be undeleted. In fact, the only reliable means of destroying data is to physically destroy any hard drive where it is found.

11. Types of Data In the process of electronic discovery, data of all types can serve as evidence. This can include text, images, calendar files, databases, spreadsheets, audio files, animation, web sites, and computer programs. Even malware such as viruses, Trojans, and spyware can be secured and investigated. Electronic mail (e-mail) can be an especially valuable source of evidence in civil or criminal litigation.

12. Computer Forensics • Computer forensics, also called cyber forensics, is a specialized form of e-discovery in which an investigation is carried out on the contents of the hard drive of a specific computer. After physically isolating the computer, investigators make a digital copy of the hard drive. Then the original computer is locked in a secure facility to maintain its pristine condition. All investigation is done on the digital copy.

13. Issues Associated with E-Discovery • E-discovery is an evolving field that goes far beyond mere technology. It gives rise to multiple legal, constitutional, political, security, and personal privacy issues, many of which have yet to be resolved. • What issues do you think should be considered? • Source: http://searchfinancialsecurity.techtarget.com/sDefinition/0,,sid185_gci1150017,00.html

14. Avoiding Hidden E-Discovery Hazards In a courtroom, a judge’s order for a party to produce its relevant e-mail and corporate information may seem straightforward and unambiguous. However, responding to that demand forces a party to avoid getting snagged by any number of pitfalls that could contribute to incomplete discovery responses, improper data processing, and the wrath of the requesting party and Court. Complicated challenges hide just beneath the surface of a simple request to “identify and produce relevant electronically stored information (ESI).”

15. Tips for e-discovery • Read and understand applicable rules (e.g. FRCP Rule 26) • Meet with your client early to make sure client understands applicable rules • Get IT and Records Management folks on board • Make sure everyone is in compliance

16. E-Discovery Map: sorting through info.

17. The Amount of Reviewable Data When dealing with compressed archives, the only way to determine the actual amount of data that must be processed and reviewed is to open all archives and extract the individual files that they contain. E-mail messages are also a notorious source of creating ambiguity regarding the amount of relevant information that must be reviewed or produced (attachments, multiple duplicative emails).

18. Producing the Right Amount of Information ESI that has been collected in the format in which it was stored in the ordinary course of business may be unsuited for production. Disputes about proprietary or non-standard file formats have diminished, but particularly in the production of e-mail messages, potential for conflict still remains.

19. Email Format • Requesting parties that seek e-mail messages produced in “native format” may not fully understand exactly what they are seeking. • However, converting messages in another format into a .PST archive often drops one or more metadata fields that may have been populated in the original e-mail message. In addition, custom .PST files containing only responsive documents may bear little or no relationship to the way that these e-mail messages were actually stored in the ordinary course of business.

20. E-Discovery Consultants To the extent that a legal team lacks the resources or expertise to address these issues head-on, working with one or more e-discovery specialists can help the team understand specific dangers—and take appropriate preventative action. Qualified consultants and e-discovery service bureaus can’t remove all the complications involved with successfully working through the e-discovery portion of a case, but their insight can keep projects on track while letting the core legal team focus on developing the rest of the client’s case. source: http://www.discoveryresources.org/featured-articles/avoiding-hidden-e-discovery-hazards/

21. Square D Co. v. Scott Elec. Co., 2008 WL 2779067 (W.D. Pa. July 15, 2008) In June 2007, the court had ordered, among other things, that defendant Globe Electric Supply Co. “submit to a forensic inspection of its computer systems which record its purchases and sales of Square D products and its inventory of such products, with such inspection to be incurred at Globe's sole expense and cost."

22. Square D Co. v. Scott Elec. Co., 2008 WL 2779067 (W.D. Pa. July 15, 2008) Counsel for Globe asserted that "there is one server and two work stations that have any connection whatsoever with Square D product."  Globe argued that plaintiff’s expert should not be allowed to examine the remaining 11 workstations.  The court did not accept Globe’s argument primarily because Globe had 4 times refused to comply with the discovery request. source: http://www.ediscoverylaw.com/2008/07/articles/case-summaries/court-issues-fourth-order-regarding-forensic-inspection-of-defendants-computer-systems-finds-defendants-behavior-fell-just-shy-of-conduct-befitting-default-judgment/

23. COSTS • Murphy Oil USA v. Fluor Daniel, Inc, $6.2 million to restore and print email from 93 back-up tapes

24. E-Discovery Services Lexis Applied Discovery Services: • Data Gathering • Media Restoration • Data Processing • Online Review • Document Production and Reporting

25. Data Gathering • Guidance for internal IT resources or on-site, professional assistance to collect data from clients’ computers, including network servers, desktop PCs, laptops, backup tapes, handheld devices, and any other storage medium. • Cost effective strategies for identifying, gathering, and preparing only necessary information for review.

26. Media Restoration • Retrieval of information from backup tapes or legacy systems, from standard email and word processing programs to arcane systems and uncommon file types. • Cost-effective strategies for narrowing the set of potentially responsive documents.

27. Data Processing • Electronic documents processed in industry-standard PDF format, with complete text and meta data preserved and indexed for search accuracy. • 5 million pages per day allow for documents to be available in days, not weeks or months. • Flexibility to process more than 200 electronic file types from a variety of storage media.

28. Online Review • Display of disparate file types in a uniform PDF format. • Capabilities include annotations, redaction, customizable document folders, and automated Bates number and document branding. • Sophisticated search functionality to enable logical review of documents.

29. Online Review • Intuitive interface with “point and click” functionality, enabling even the least technical lawyer to become an electronic discovery pro! • Multi-party or multi-site collaboration with access to comprehensive Web-based repository. • No hardware or software to purchase. • State of the art security.

30. Document Production and Reporting • Production of responsive documents according to client specification in electronic or paper format. • Privilege log reports or user-defined custom reporting to suit the needs of the case.

31. Final Project • This week, you will finalize your proposal and presentation. • Make sure the presentation builds on the Midterm Project, describes hardware and software used in the office, and is geared to a particular type of legal practice. • Submit the finalized PowerPoint presentation, to the Dropbox by the end of Unit 9.

32. More Details for Final Project • Choose a specific type of firm (e.g., criminal) – does your chosen type of firm have any specific type of software needs? • Choose size of firm – this will impact hardware and software needs • How will you protect internal and client security? • What will you do to ensure compliance with ethical requirements? • Provide sufficient detail in your PowerPoint so that it stands alone • What makes a good PowerPoint?

33. Final Project • What questions do you have on what you will submit this week?