Published on February 23, 2009
Electronic Document Management and Discovery WHERE IS THE TIPPING POINT? Ronald D. Coleman COLEMAN LAW FIRM New York, NY Clifton, NJ
The Basics: Law The basics Legal standards Federal rules Leading cases Rule 26, General Provisions Governing Discovery: Duty of Disclosure, states in relevant part that all parties in litigation must disclose "a copy of, or description by category and location of, all documents, data compilations, and tangible things in possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings" FED. RUL. CIV. PROC. 26(a)(1)(B).
The Basics: Law Rule 26 also defines discovery limits: "The frequency or extent of use of the discovery methods . . . shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive . . . (iii) the burden or expense of the proposed discovery outweighs its likely benefit . . ." FED. RUL. CIV. PROC. 26(b)(2). The basics Legal standards Federal rules
District of New Jersey Local Rule 26.1(d)(1) (d) Discovery of Digital Information Including Computer-Based Information (1) Duty to Investigate and Disclose. Prior to a Fed. R. Civ. P. 26(f) conference, counsel shall review with the client the client’s information management systems including computer-based and other digital systems, in order to understand how information is stored and how it can be retrieved. To determine what must be disclosed pursuant to Fed. R. Civ. P. 26(a) (1), counsel shall further review with the client the client’s information files, including currently maintained computer files as well as historical, archival, back-up, and legacy computer files, whether in current or historic media or formats, such as digital evidence which may be used to support claims or defenses. Counsel shall also identify a person or persons with knowledge about the client’s information management systems, including computer-based and other digital systems, with the ability to facilitate, through counsel, reasonably anticipated discovery.
District of New Jersey Local Rule 26.1(d)(1) ( 2) Duty to Notify. A party seeking discovery of computer-based or other digital information shall notify the opposing party as soon as possible, but no late r than the Fed. R. Civ. P. 26(f) conference, and identify as clearly as possible the categories of information which may be sought. A party may supplement its request for computer-based and other digital information as soon as possible upon receipt of new information relating to digital evidence. (3) Duty to Meet and Confer. During the Fed. R. Civ. P. 26(f) conference, the parties shall confer and attempt to agree o n computer-based and other digital discovery matters, including th e following: (a) Preservation and production of digital information; procedures to deal with inadvertent production of privileged information; whether restoration of deleted digital information may be necessary; whether back up or historic legacy data is within the scope of discovery; and the media, format, and procedures for producing digital information; (b) Who will bear the costs of preservation, production, and restoration (if necessary) of any digital discovery.
Digital Data in 2003 Are you prepared to discover these? Digital data E-mail Network logs and drives Local (workstation) data and drives Backup data Metadata
Network logs and drives
Local (workstation) data and drives
Digital Data in 2003 Removable media Home computers and laptops PDA’s and cell phones Digital scanners / copiers / fax machines How about these?
Home computers and laptops
PDA’s and cell phones
Digital scanners / copiers / fax machines
Digital Data in 2003 Websites Website data Regulatory compliance / privacy logs Monitoring Website history How about these?
Regulatory compliance / privacy logs
More Web-related data Cookies User-submitted data Logged server data Credit card transactions Spam filters Communications with webmasters / admins
Logged server data
Credit card transactions
Communications with webmasters / admins
“ Rely on your expert” “ I think you need to include the input of your expert. Say you have an accountant who thinks the raw data/computer data is helpful or necessary... Demand the electronic discovery. If you have a PI, he may indicate that in his opinion electronic discovery is needed because the individual or company is tech savvy – their using the PC/internet/e-mail may be enough to justify this. Keep in mind, that it does NOT take a lot of tech savvy to search a hard drive. You may find a LOT of good info with very little cost.”
“ Comprehend the universe” “ The biggest problem I see is how do you assure that you get all the e-mails and other relevant data ? How do you do an "in-camera" review of the HD, where the other party says much/most of the data is not relevant, or privileged. Where you DO need expert help is in looking for deleted data, which may not actually be deleted until after it is over-written 1 or 2 times. Even if "Sam" deletes it, maybe another recipient did not. Maybe it was forwarded to other parties. Maybe it's still on a server somewhere. Maybe they are using AOL, MSN, Yahoo, etc., where the e-mail or attachment may still be somewhere "out-there". THIS you will need help for, but it still doesn't mean it will cost a lot.”
“ The biggest problem I see is how do you assure that you get all the e-mails and other relevant data ? How do you do an "in-camera" review of the HD, where the other party says much/most of the data is not relevant, or privileged. Where you DO need expert help is in looking for deleted data, which may not actually be deleted until after it is over-written 1 or 2 times. Even if "Sam" deletes it, maybe another recipient did not. Maybe it was forwarded to other parties. Maybe it's still on a server somewhere. Maybe they are using AOL, MSN, Yahoo, etc., where the e-mail or attachment may still be somewhere "out-there". THIS you will need help for, but it still doesn't mean it will cost a lot.”
“ It’s the new standard” “ I've never worked on a case that didn't involve extensive electronic discovery. So many people are heading towards paperless offices that not to conduct electronic discovery would essentially mean not conducting full discovery. It always consists of collecting responsive email files, both active and archived, as well as pc files of any kind (Word, WordPerfect, Lotus 1-2-3, Excel, etc.) and moveable media (CD-ROMs, etc). A lot of large companies have team room databases as well (country-specific, sales group-specific, product-specific, etc.) that may need to be searched. “ Backup tapes have never been an issue, though.”
“ Gotcha!” “ I defend class actions. Most of the well-known plaintiffs' class action firms now have a long, single-spaced letter that they mail to you at the beginning of a case, asking a zillion questions about your client's electronic systems and demanding that you save essentially every document that you ever created or will create . This may be a legitimate discovery tool, or it may be the beginning of an endless game of "gotcha," where the plaintiffs keep going back to court saying that there is some other aspect of digital evidence that the defendant neglected to preserve. ”
“ The problem is separating the wheat from the chaff” “ These days, collecting electronic documents is not hard, separating the wheat from the chaff is the problem. Key word searches are helpful, but not a complete solution. It's some degree of common sense. Most of the time, you'll figure out fast whether it's worth it by looking at the companies involved . Some companies do EVERYTHING by email (I have one such case now). There, email searches make sense (e-mail servers are often separate from other document servers and easier to search). Other companies don't rely so heavily on email to do business.”
“ It shifts the burden to defendants” “ In a world of paper discovery, in many types of cases, the discovery rules put an undue burden on defendants. In product liability cases, the plaintiff has a few medical records; the defendant has millions of pages of design and manufacturing records. In securities cases, the plaintiff has records of the purchase and sale of a security; the defendant has every scrap of financial data that it ever created. Class action litigation can compound the problem. “ Electronic discovery multiplies the problem. The plaintiff still possesses almost nothing, but the defendant has (intentionally or not) saved many times as many documents as it saved in a paper world . And there are essentially insurmountable technical and logistical challenges of saving all of those documents once litigation begins. Some judges have a general sense of the burdens that the world of e-discovery puts on corporations, but the typical judge (even the typical lawyer) doesn't really appreciate the problem because the judge has not spent hours watching information technology people explain that they don't even know what exists, let alone how to preserve (or recover) it all . “ Zealous advocates try to take advantage of this imbalance, which is why class action plaintiffs' counsel routinely demand that defendants save everything. That request cannot be met, so the parties begin an endless routine with the plaintiffs accusing the defendant of having destroyed stuff.”
WHAT IS THE TIPPING POINT? Costs / benefit Cost shifting Settlement value Litigation management leverage In-house support Fraud issues
Costs / benefit
Litigation management leverage
Electronic Document Management and Discovery WHERE IS THE TIPPING POINT? Ronald D. Coleman [email_address] COLEMAN LAW FIRM New York, NY Clifton, NJ 212-752-9500
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