May 19, 2010
© 2010 Clearwell Systems, Inc. Confidential

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Discovery – “. . . the process of identifying, locating, securing and producing information and materials for the purpose of obtaining evidence for utilization in the legal process.”
Electronic Discovery (E-Discovery) – “The process of collecting, preparing, reviewing, and producing electronically stored information (“ESI”) in the context of the legal process. See
Discovery.”
– The Sedona Conference Glossary
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• Fundamental shift in how businesses create, store, and use information
• Email has replaced the water-cooler
• Now those conversations are preserved and discoverable
• Information management practices have not matured as fast as technologies
• Technological renaissance
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Google
• iPhone
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Saas
• Social Networking
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Virtual Worlds (?!?!)
• 10 years ago, no one cared if you were a Mac or a PC
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In 2006, the Federal Rules of Civil Procedure were amended in part to deal with the rapidly rising costs and burden of electronic discovery.
The Federal Rules did not create electronic discovery, they only affected it.
Rule 26(f)
Rule 30(b)(6)
Rule 37(f)
And not to be outdone, Federal Rule of Evidence 502
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Spoliation
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Volume / Cost
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Quality (search, review)
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Inadvertent disclosure of privileged and/or confidential information
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Communication (IT, Law Dept., Investigators, Compliance,
Courts, Clients, Vendors, Lawyers)
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Relatively young body of untested law (no appellate decisions; square peg – round hole)
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Standards
• The Sedona Conference; The Electronic Discovery Reference Model
(EDRM)
• Court-mandated protocols
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Collaboration (early and often) between parties
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Technology – it got us into this mess, and when used properly, it can get us out
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Systematization – use standards and repeatable workflows to build an efficient business process around e-discovery
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Control your ESI before it controls you
• Record Retention Policies
• Email / Acceptable Use Policies
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Archiving
An ounce of prevention...
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• You can’t review it if you don’t find it
• Custodians – who has the data?
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Interviews, org charts
• Data can be anywhere
• Data maps
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Multiple copies?
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Scope / Proportionality
• Ensure efforts are “right-sized” for the case (amount in controversy)
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Duty to preserve arises from Common Law (case law), not the
Federal Rules of Civil Procedure
• You must preserve all items which may be relevant to litigation when you reasonably anticipate litigation
• This has been stated by appellate courts time and time again
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This is where sanctions are typically awarded (spoliation)
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Beware of automatically purging computer systems
• “Honey what happened to the season of Grey’s Anatomy I recorded on the
DVR?”
Remember: It is generally cheaper to preserve than to collect, process, and review. So, cast a wide net during preservation
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Handle ESI with care!
• Metadata
• volatile media
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Challenges – cloud computing, SaaS, remote employees, backup tapes
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If using third-party vendor to store ESI, review contracts
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Chain of Custody
• You will have to authenticate any piece of evidence to be used at trial, so make sure chain of custody remains intact for ESI
• Shipping data – encrypt contents and send using trackable carrier
• Moving data – always use a tool like Robocopy or other similar utilities that preserve metadata
• Create two copies (“best evidence” copy and working copy)
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Data is coming from many different systems, so you must
“normalize” the data either through presentation or format
• Presentation – index / crawl native files and provide analytics
• Format – convert to .tif images
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Deal with anomalies (remediation) – passwords; encryption; corruption
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What can the data tell us?
• Trends; anomalies; baseline for review
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This step should always be performed prior to starting a linear review
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In linear review, each decision is better than the last, and every decision needs to be the best
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Must review smarter when dealing with high volumes of ESI
• Develop baseline of knowledge using analysis
• Do “analytic review”
• Group documents for more meaningful review experience
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Discussion threads
• Custodian
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Chronology
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Quality measures must be implemented for defensibility
• Sampling
• Reporting
• Auditing
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Form of production (native files or images?)
• How is ESI stored “in the ordinary course of business?”
• Who’s responsibility is it to ask about form of production?
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Duty is first on the plaintiff to request a particular form of production (if desired), but defendants are rarely rewarded for hiding the ball
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Hidden or embedded content as well as redaction can complicate production of ESI
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How can this ESI be presented to a jury or the court at trial?
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Will they understand what is being presented?
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Be aware that relationships between documents and trends in the data may be very revealing and valuable in a trial. So, how should those be presented?
• Use e-discovery technology (portable, web-based, easy to understand)
• Scout the venue first for technical accomodations
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Q: Which of these stages can occur before a civil complaint is filed?
A: All of them!
What you do today could be subject to e-discovery rules after the case is filed
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Email is not privileged but attachment is privileged (boundaries of ESI)
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Not reasonably accessible because of undue burden or cost
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Lifecycle of ESI is difficult to track
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Privacy laws
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Preservation with culpable / unreliable custodians (undercover collection – see Privacy Laws
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Persons involved in e-discovery are speaking different languages
• What does “delete” mean to you?
• Use a glossary (Sedona Conference Glossary)
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Expectations / Requirements often not defined
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Different agendas / goals
• Legal’s mission: risk management
• IT’s mission: business continuity
• Investigator’s mission: find the facts
• Judge’s mission: manage process to ensure a just result
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Communication – define / explain common terms; define / explain goals; communicate risks
Collaboration – use “us against the problem” approach instead of delegating
Consistency – team approach is good, but keep regular members so they develop a good working relationship
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In which jurisdiction will the case be litigated?
• 7th Cir. Pilot Program
• Local rules
• Varying case law
• Federal / State court?
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Must be aware of nationwide trends to best prepare for potential litigation
• Seminars / Conferences
• Continuing Education
• Corporate Initiatives
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Where could the data be?
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Smartphone (SD card)
• iPod
• Thumbdrives (check Windows registry to see if any used)
• Internet mail accounts (Hotmail, gmail, Yahoo! Mail)
• Embedded files (Office 2007 files, steganography)
• Backup tapes, old servers
• Old computers (tip: review old IT service tickets to trace history of witness’s hardware)
• Home computer, girlfriend’s computer, child’s cell phone – privacy issues
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Typically, you must only preserve one copy of a document or file as it is kept in the ordinary course of business, but if you are conducting an investigation, you may wish to collect all copies.
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• Wilson v. Thorn Energy, LLC (March 15, 2010)
• The court ordered sanctions for defendants’ failure to preserve relevant data where defendants failed to back up a flash drive containing all relevant financial records and where that data was lost as the result of the flash drive’s failure.
• Typical E-Discovery preservation techniques can be effective before litigation.
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Best Practices
– EDRM.net; Sedona Conference
• If you convert data, keep originals – one man’s recycle bin is another man’s trial exhibit.
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Maintain a pristine, vaulted copy and create several working copies.
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• Spend time identifying and preserving more than you think you will need
(cast a wide net, sort later – but always keep costs in mind)
• Computers are designed to purge data periodically to maintain optimum efficiency
– make sure IT is aware that they have to disable these policies for ESI subject to preservation duty
• Many companies that are very skilled in e-discovery are the very companies that regularly purge data not subject to any litigation hold or preservation request
• Expert Data
• Federal Rule 26(a)(2)(B) requires the disclosure of all “information considered by the [expert] in forming the [expert’s] opinion.”
• Hard drive, deleted files, emails, corporate data reviewed
• The plaintiff is subject to the rules as well. If you ask for data, make sure you are preserving your own as well.
• And be careful what kind of ESI you create ( Quon case)
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State laws limiting gathering of evidence
• SC – must be a private investigator or lawyer to gather evidence to be used at trial.
Privacy (EU; US state laws; employment contracts; corporate policies)
Handle ESI with Care!
• Chain of custody (shipping receipts, logs, procedures to safeguard data)
• Encrypt media if sending it outside of the company
• Vault ESI immediately (read-only access; limited security access; redundant hard drives)
• “The hard drive ate my ESI” is not a valid argument in most cases
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Protect metadata
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Preservation is key (prevent sanctions)
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What about newly-created data?
• “To the present” requests
• Beware of IT projects occurring during period of preservation
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Document everything!
• Could you describe the entire investigation including e-discovery aspects two years from now?
• 30(b)(6) deposition
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Defensibility
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Keys:
• Repeatable processes and policies (consistency)
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Auditing policies (accountability)
• Transparency in technology (transparency)
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• Underestimating the “Real” Cost of Storage
• Cost of “unlimited storage” becomes apparent in e-discovery
• Compare $0.10 / GB to buy storage with $5,000 / GB to process and review the data during discovery
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Assuming that Email Archiving is the Silver Bullet
• Archiving good 1 st step, but does not cover all data sources and often lacks important analytic tools needed to analyze ESI
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Relying Solely on Technology to Solve the Problem
• Need balance of people, processes, and technology
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Trying to Solve a Non-Linear Problem with a Linear Approach
• Technology should allow iterative approach and cover multiple EDRM phases
• Attempting to Boil the Ocean with “Index Everything”
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Superior analysis tools
• Discussion Threading (holistic approach to reviewing email)
• Reverse Lookup (finding other occurrences of a particular document across an entire case)
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Participants (find others who were involved)
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Real-Time feedback
• Allows for iterative approach (to achieve highest quality)
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Lower overall costs and improve quality
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Excel is probably most popular litigation hold management solution
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Other solutions (price, deployment, management)
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Preserve in place – difference between “2005 – 2010 and 2005 – present”
• Creation of new documents; changes to documents; etc.
• Point in time collections (agree upon intervals with opposing counsel?)
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Backup tapes – could restore 1st one, last one, and agreed upon number in the middle at agreeable intervals
• May be able to argue tapes are not reasonably accessible because of undue burden or cost (Sedona factors)
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Metadata: the tie that binds (control over entire data set)
• Sorting by custodian, date range, file type
• Early Case Assessment
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Analyze Scope / Impact, Risk, Readiness
• Who knew what and when?
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Improved review speeds
• Grouping
• “Analytic Review”
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Improved culling rates
• Exclude by attribute
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Enhanced searching
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Surgical precision
• Transparency
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• Robocopy (preserve metadata; scripting)
• Over-Collection – is entire hard drive needed or only certain file types / date ranges?
• Where will you store collected ESI?
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Can have preservation implications (read-only, working copies)
• Privacy Issues – does data belong to the company? What about when sent to personal email accounts? Personal thumb drive plugged into company computer?
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Criminal cases
– 4 th A. / agent of police
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Search technology
• Filters
• Types: keyword, boolean, fuzzy logic, concept, transparent
• “be the document” – who wrote me?; why?; what terms would they use?; abbreviations / slang / jargon?
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Technology can help (Clearwell terms & topics)
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Iterative approach
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Transparency – Victor Stanley v. Creative Pipe
• 3 steps:
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Preview
• Sample
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Report
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Ensure that you can produce data in variety of formats
• EDRM XML standard
• Make sure you can go backwards as well (final -> original)
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Many review platforms have a proprietary load file format
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Usually can convert from XML or CSV
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Brandon D’Agostino, Esq.
Solutions Consultant bdagostino@clearwellsystems.com
www.clearwellsystems.com
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