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Electronic Data Discovery

This guide provides an overview of electronic data discovery, including its purposes of expediting litigation and encouraging settlement. It also covers the obligation to preserve relevant electronic data and includes sample interrogatories and important considerations.

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Electronic Data Discovery

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  1. Electronic Data Discovery Office of Counsel Bill Woodward X6633

  2. What Is Discovery? • The Discovery Process Serves the Purposes of: • 1. Expediting the litigation by: • a) Identifying and narrowing issues. • b) Uncovering facts • c) Preserving evidence for trial. • d) Expediting trial preparation by committing parties or witnesses to particular versions of facts. • 2. Encouraging Settlement by: • a) Educating the parties as to the strengths and weaknesses of their respective cases • b) Exposing doubtful claims or defenses. • c) Providing information for informed case evaluation.

  3. Is This Something Totally New? • Obligation to preserve relevant paper documents which could be admissible as evidence or lead to admissible evidence • Spoliation prohibited • Enron shredders • Iran/Contra email back up of White House e-mail • Principles of paper discovery have been extended to electronically stored information (Electronic Data)

  4. Sample Interrogatoires Regarding Electronic Data • Identify all past and current users known to you who have generated e-mail related to the subject matter(s) of this litigation • Identify all e-mail known to you that relates to, references or is relevant to the subject matter of this litigation, including but not limited to, date, recipient(s) and authors • State whether any computer hardware has been upgraded during the relevant time period of this litigation, and describe the type of upgrade and whether the replaced parts were retained • Identify any hard drives that were erased or reformatted for new users during the relevant time period of this litigation, and whether they are backed up before the new user receives the computer • If the hard drive of any server, workstation, notebook/laptop/desktop PC (for home or work use), or any storage device or media, has been “wiped clean” or reformatted so that the information on the hard drive, storage device, or media is permanently destroyed, please provide: the date on which each drive was “wiped clean” and the method or program used (e.g., WipeDisk, WipeFile, BurnIt, Data Eraser, etc.

  5. More Sample Interrogatories • For each of the individuals listed below, identify their communications capability during the relevant time period of this litigation, including, but not limited to: terminal to mainframe emulation, data download and/or upload capability to mainframe, and computer to computer connections via a network, modem and/or direct connection of any desktop or laptop computers, PDAs, cellular phones and voice mail equipment. Please include information on any of the above-mentioned individuals if any of these devices are used at home for business purposes • Identify any users who had backup systems for/with their laptop or desktop computers, including personal equipment used for business purposes, and describe the nature of the backup • Provide copies of all documents which constitute, refer or relate to any past or electronic communications systems, including but not limited to: e-mail, voice mail, text messaging and instant messaging, used during the relevant time period of this litigation

  6. When Does Obligation to Preserve Arise? • Suit has been filed • Subpoena has been received • Suit can reasonably be anticipated • Reasonable anticipation of litigation arises when an organization is on notice of a credible threat it will become involved in litigation or anticipates taking action to initiate litigation [Sedona Conference] • Office of Counsel will make the determination • If you have reason to believe a suit will be filed, please contact John, Bob, or me at x6633.

  7. How Will I Know When There Is a Duty to Preserve Electronic Data? • Meeting of administrators, IT representative(s), and Office of Counsel to discuss pending/anticipated litigation • Litigation Hold Letter following the meeting • Periodic reminders • Possible expansions of scope of preservation effort • Notice when obligation to preserve is over

  8. What Locations Are Covered? • Both office and home computers that are used to perform work related functions • Off-campus storage of electronic data • “Cloud” storage/online applications containing electronic data, such as Google Docs

  9. What Devices/Media Are Covered? • Hard Drives (internal and external) • CDs and DVDs • “Thumb” Drives • Tape Drives • PDAs, Smart Phones (iPhone) • Voice Mail Recordings • Answering Machine Messages • Video/Audio Cassettes • Digital Photographs

  10. What Files Are Covered? • Word Processor Files (.doc, .docx,.rtf) • Spread Sheets (.xls, .xlsx) • Portable Document Files (.pdf) • Electronic Calendar • Data Bases • Saved IM Conversations • Twitter Conversations • E-Mail Messages • SavedText Messages

  11. Who Is Involved in Preserving the Electronic Data? • User must • Avoid deleting relevant files • Avoid formatting a hard drive containing relevant files • Avoid selling/disposing of a personally owned computer containing relevant information • In some cases, IT will copy your hard drive, remove the hard drive, install the copy into your computer and submit the original hard drive to the Office of Counsel to be placed in locked storage cabinet. • Technical assistance available from IT, John Stanton, x 2626

  12. Will All Information Preserved Be Turned Over to Other Side? • No • Information subject to a claim of privilege will not be turned over without court order • Personal information that is not relevant will not be turned over

  13. What Special Situations Do I Need to Be Aware of? • Computer is replaced with a new one • Computer hard drive shows signs of failure and needs to be replaced • Computer needs to have hard drive re-formatted and operating system (Windows) reinstalled • Computer is being “surplus-ed” • Re-usable backup media (i.e., tapes) are scheduled to be erased and re-used

  14. What if Preservation Obligations Are Not Met? • Imposition of a fine on the University • Instruction to jury to assume allegations to which “missing information” pertains are true • Not allowing testimony by University official who has “lost” relevant information • Directed verdict for other side • Adverse personnel action against staff/faculty member for disregarding preservation obligations once put on notice

  15. What About E-Mail? • Always assume that e-mail will be printed on the front page of tomorrow’s newspaper • Misdirected • Typo • Auto-completion of addresses • Forwarded easily • Numerous copies of every e-mail • Never use e-mail to comment on or send documents related to personnel actions to anyone other than a lawyer in the Office of Counsel

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