e-Discovery For Dummies

by Carol Pollard, Ian Redpath

Overview

Discover the process of e-discovery and put good practices in place.

Electronic information involved in a lawsuit requires a completely different process for management and archiving than paper information. With the recent change to Federal Rules of Civil Procedure making all lawsuits subject to e-discovery as soon as they are filed, it is more important than ever to make sure that good e-discovery practices are in place.

e-Discovery For Dummies is an ideal beginner resource for anyone looking to understand the rules and implications of e-discovery policy and procedures. This helpful guide introduces you to all the most important information for incorporating legal, technical, and judicial issues when dealing with the e-discovery process. You'll learn the various risks and best practices for a company that is facing litigation and you'll see how to develop an e-discovery strategy if a company does not already have one in place.

• E-discovery is the process by which electronically stored information sought, located, secured, preserved, searched, filtered, authenticated, and produced with the intent of using it as evidence
• Addresses the rules and process of e-discovery and the implications of not having good e-discovery practices in place
• Explains how to develop an e-discovery strategy if a company does not have one in place

e-Discovery For Dummies will help you discover the process and best practices of managing electronic information for lawsuits.

Product Details

ISBN-13:	9780470510124
Publisher:	Wiley
Publication date:	11/16/2009
Series:	For Dummies Books
Pages:	368
Product dimensions:	7.30(w) x 9.10(h) x 0.90(d)

About the Author

Linda Volonino is an e-discovery consultant and computer forensics expert who aids lawyers and judges in preparing for e-discovery. She is coauthor of Computer Forensics For Dummies. Ian Redpath is an attorney with 32 years of litigation experience in federal courts. He consults on e-discovery.

Table of Contents

Introduction 1

Who Should Read This Book? 1

About This Book 2

What You’re Not to Read 2

Foolish Assumptions 2

How This Book Is Organized 3

Part I: Examining e-Discovery and ESI Essentials 3

Part II: Guidelines for e-Discovery and Professional Competence 3

Part III: Identifying, Preserving, and Collecting ESI 4

Part IV: Processing, Protecting, and Producing ESI 4

Part V: Getting Litigation Ready 4

Part VI: Strategizing for e-Discovery Success 5

Part VII: The Part of Tens 5

Glossary 5

Icons Used in This Book 5

Where to Go from Here 6

Part I: Examining e-Discovery and ESI Essentials 7

Chapter 1: Knowing Why e-Discovery Is a Burning Issue 9

Getting Thrust into the Biggest Change in the Litigation 10

New rules put electronic documents under a microscope 11

New rules and case law expand professional responsibilities 12

Distinguishing Electronic Documents from Paper Documents 14

ESI has more volume 15

ESI is more complex 15

ESI is more fragile 16

ESI is harder to delete 17

ESI is more software and hardware dependent 18

Viewing the Litigation Process from 1,000 Feet 18

Examining e-Discovery Processes 20

Creating and retaining electronic records 20

Identifying, preserving, and collecting data relevant to a legal matter 21

Processing and filtering to remove the excess 22

Reviewing and analyzing for privilege 22

Producing what’s required 23

Clawing back what sneaked out 23

Presenting at trial 24

Chapter 2: Taking a Close Look at Electronically Stored Information (ESI) 25

Spotting the ESI in the Game Plan 26

Viewing the Life of Electronic Information 27

Accounting for age 27

Tracking the rise and fall of an e-mail 29

Understanding Zubulake I 30

Taking the two-tier test 34

Preserving the Digital Landscape 36

Facing Sticker Shock: What ESI Costs 37

Estimating hard and hidden costs 39

Looking at the costs of being surprised by a request 40

Chapter 3: Building e-Discovery Best Practices into Your Company 43

Setting Up a Reasonable Defensive Strategy 44

Heeding judicial advice 45

Keeping ESI intact and in-reach 46

Braking for Litigation Holds 48

Insuring a stronghold 48

Getting others to buy-in 49

Holding on tight to your ESI 50

Putting Best Practices into Place 51

Forming Response Teams 54

Putting Project Management into Practice 55

Tackling the triple constraints 56

Managing the critical path 57

Maintaining Ethical Conduct and Credibility 57

Part II: Guidelines for e-Discovery and Professional Competence 59

Chapter 4: The Playbook: Federal Rules and Advisory Guidelines 61

Knowing the Rules You Must Play By 62

Deciphering the FRCP 63

FRCP 1 63

FRCP 16 63

FRCP 26 65

FRCP 33 and 34 66

Applying the Rules to Criminal Cases 66

F.R. Crim. P. Rule 41 71

F. R. Crim. P. Rule 16 71

F. R. Crim. P. Rule 17 and 17.1 71

Learning about Admissibility 71

Lessening the Need for Judicial Intervention by Cooperation 73

Limiting e-Discovery 74

Finding Out About Sanctions 75

Rulings on Metadata 77

Getting Guidance but Not Authority from Sedona Think Tanks 79

Collecting the Wisdom of the Chief Justices and National Law Conference 79

Minding the e-Discovery Reference Model 80

Following the Federal Rules Advisory Committee 81

Chapter 5: Judging Professional Competence and Conduct 83

Making Sure Your Attorney Gives a Diligent Effort 84

Looking at what constitutes a diligent effort 84

Searching for evidence 85

Producing ESI 86

Providing a certification 86

Avoiding Being Sanctioned 87

FRCP sanctions 87

Inherent power sanctions 89

Knowing the Risks Introduced by Legal Counsel 91

Acting bad: Attorney e-discovery misconduct 91

Relying on the American Bar Association and state rules of professional conduct 93

Learning from Those Who Gambled Their Cases and Lost 94

Policing e-Discovery in Criminal Cases 96

Part III: Identifying, Preserving, and Collecting ESI 99

Chapter 6: Identifying Potentially Relevant ESI 101

Calling an e-Discovery Team into Action 102

Clarifying the Scope of e-Discovery 104

Reducing the Burden with the Proportionality Principle 107

Proportionality of scale 107

Negotiating with proportionality 108

Mapping the Information Architecture 108

Creating a data map 108

Overlooking ESI 111

Describing data retention policies and procedures 112

Proving the reasonable accessibility of ESI sources 113

Taking Lessons from the Mythical Member 113

Chapter 7: Complying with ESI Preservation and a Litigation Hold 115

Distinguishing Duty to Preserve from Preservation 116

Following The Sedona Conference 116

The Sedona Conference WG1 guidelines 117

Seeing the rules in the WG1 decision tree 119

Recognizing a Litigation Hold Order and Obligation 119

Knowing what triggers a litigation hold 120

Knowing when to issue a litigation hold 120

Knowing when a hold delay makes you eligible for sanctions 122

Accounting for downsizing and departing employees 122

Throwing a Wrench into Digital Recycling 123

Suspending destructive processes 123

Where do you put a terabyte? 124

Implementing the Litigation Hold 125

Documenting that custodians are in compliance 127

Rounding up what needs to be collected 127

Judging whether a forensics-level preservation is needed 130

Chapter 8: Managing e-Discovery Conferences and Protocols 133

Complying with the Meet-and-Confer Session 133

Preparing for the Meet-and-Confer Session 136

Preservation of evidence 136

Form of production 137

Privileged or protected ESI 138

Any other issues regarding ESI 139

Agreeing on a Timetable 139

Selecting a Rule 30(b)(6) Witness 140

Finding Out You and the Opposing Party May Have Mutual Interests 141

Part IV: Processing, Protecting, and Producing ESI 143

Chapter 9: Processing, Filtering, and Reviewing ESI 145

Planning, Tagging, and Bagging 146

Taking a finely tuned approach 147

Finding exactly what you need 147

Stop and identify yourself 149

Two wrongs and a right 150

Learning through Trial and Error 151

Doing Early Case Assessment 152

Vetting vendors 153

Breaking Out the ESI 154

Crafting the Hunt 156

Deciding on filters 156

Keyword or phrase searching 157

Deduping 157

Concept searching 158

Heeding the Grimm roadmap 158

Sampling to Validate 159

Testing the validity of the search 159

Documenting sampling efforts 160

Doing the Review 161

Choosing a review platform 161

How to perform a review 163

Chapter 10: Protecting Privilege, Privacy, and Work Product 165

Facing the Rising Tide of Electronic Information 166

Respecting the Rules of the e-Discovery Game 166

Targeting relevant information 167

Seeing where relevance and privilege intersect 168

Managing e-discovery of confidential information 170

Listening to the Masters 172

Getting or Avoiding a Waiver 172

Asserting a claim 173

Preparing a privilege log 173

Responding to ESI disclosure 175

Applying FRE 502 to disclosure 175

Leveling the Playing Field through Agreement 177

Checking out the types of agreements 177

Shoring up your agreements by court order 178

Chapter 11: Producing and Releasing Responsive ESI 181

Producing Data Sets 182

Packing bytes 183

Staging production 184

Being alert to native production motions 185

Redacting prior to disclosure 187

Providing Detailed Documentation 190

Showing an Unbroken Chain of Custody 192

Keeping Metadata Intact 193

Part V: Getting Litigation Ready 199

Chapter 12: Dealing with Evidentiary Issues and Challenges 201

Looking at the Roles of the Judge and Jury 202

Qualifying an Expert 202

Getting Through the Five Hurdles of Admissibility 204

Admitting Relevant ESI 204

Authenticating ESI 205

Self-authenticating ESI 206

Following the chain of custody 206

Authenticating specific types of ESI 207

Analyzing the Hearsay Rule 208

Providing the Best Evidence 210

Probing the Value of the ESI 210

Chapter 13: Bringing In Special Forces: Computer Forensics 211

Powering Up Computer Forensics 212

Knowing when to hire an expert 212

Knowing what to expect from an expert 214

Judging an expert like judges do 214

Doing a Scientific Forensic Search 215

Testing, Sampling, and Refining Searches for ESI 216

Applying C-Forensics to e-Discovery 218

Following procedure 219

Preparing for an investigation 220

Acquiring and preserving the image 222

Authenticating with hash 223

Recovering deleted ESI 224

Analyzing to broaden or limit 225

Expressing in Boolean 226

Producing and documenting in detail 228

Reinforcing E-Discovery 229

Fighting against forensic fishing attempts 229

Fighting with forensics on your team 230

Defending In-Depth 231

Part VI: Strategizing for e-Discovery Success 233

Chapter 14: Managing and Archiving Business Records 235

Ratcheting Up IT’s Role in Prelitigation 236

Laying the cornerstone of ERM 236

Pitching your tent before the storm 237

Telling Documents and Business Records Apart 238

Designing a Defensible ERM Program 240

Designing by committee 240

Starting with the basics 240

Getting management on board with your ERM program 242

Crafting a risk-reducing policy 244

Punching up your e-mail policy 245

Building an ERM Program 246

Kicking the keep-it-all habit 248

Doing what you say you are 248

Getting an A+ in Compliance 249

Chapter 15: Viewing e-Discovery Law from the Bench 251

Examining Unsettled and Unsettling Issues 252

Applying a reasonableness standard 252

Forcing cooperation 253

Looking at what’s reasonably accessible 254

Determining who committed misconduct 254

Exploring the Role of the Judge 258

Actively participating 258

Scheduling conferences 259

Appointing experts 259

Determining the scope of costs 262

Chapter 16: e-Discovery for Large-Scale and Complex Litigation 263

Preparing for Complex Litigation 263

Ensuring quality control 265

Getting a project management process in place 266

Proving the merits of a case by using ESI 266

Educating the Court about Your ESI 267

Using summary judgment and other tools 268

Employing an identification system 268

Form of production 269

Creating document depositories 269

Avoiding Judicial Resolution 270

Determining the Scope of Accessibility 271

Doing a good-cause inquiry 272

Cost-shifting 273

Getting Help 274

Partnering with vendors or service providers 274

Selecting experts or consulting companies 274

Chapter 17: e-Discovery for Small Cases 277

Defining Small Cases that Can Benefit from e-Discovery 278

Theft of proprietary data and breaches of contract 278

Marital matters 278

Defamation and Internet defamation 279

Characterizing Small Matters 280

Keeping ESI out of evidence 280

Shared characteristics with large cases 281

Unique characteristics and dynamics 282

Proceeding in Small Cases 283

Curbing e-Discovery with Proportionality 286

Sleuthing Personal Correspondence and Files 286

Part VII: The Part of Tens 289

Chapter 18: Ten Most Important e-Discovery Rules 291

FRCP 26(b)(2)(B) Specific Limitations on ESI 291

FRCP 26(b)(5)(B) Protecting Trial-Preparation Materials and Clawback 292

FRCP 26(a)(1)(C) Time for Pretrial Disclosures; Objections 293

FRCP 26(f) Conference of the Parties; Planning for Discovery 294

FRCP 26(g) Signing Disclosures and Discovery Requests, Responses, and Objections 294

FRCP 30(b)(6) Designation of a Witness 295

FRCP 34(b) Form of Production 296

FRCP 37(e) Safe Harbor from Sanctions for Loss of ESI 297

Federal Rules of Evidence 502(b) Inadvertent Disclosure 298

Federal Rule of Evidence 901 Requirement of Authentication or Identification 298

Chapter 19: Ten Ways to Keep an Edge on Your e-Discovery Expertise 301

The Sedona Conference and Working Group Series 302

Discovery Resources 303

Law Technology News 303

Electronic Discovery Law 304

E-Discovery Team Blog 304

LexisNexis Applied Discovery Online Law Library 305

American Bar Association Journal 305

Legal Technology’s Electronic Data Discovery 306

Supreme Court of the United States 306

Cornell Law School Legal Information Institute and Wex 307

Chapter 20: Ten e-Discovery Cases with Really Good Lessons 309

Zubulake v. UBS Warburg, 2003–2005; Employment Discrimination 309

Qualcomm v. Broadcom, 2008; Patent Dispute 310

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008; Copyright Infringement 311

Doe v. Norwalk Community College, 2007; the Safe Harbor of FRCP Rule 37(e) 312

United States v. O’keefe, 2008; Criminal Case Involving e-discovery 313

Lorraine v. Markel American Insurance Co., 2007; Insurance Dispute 314

Mancia v. Mayflower Textile Services Co., et al., 2008; the Duty of Cooperate and FRCP Rule 26(g) 315

Mikron Industries Inc. v. Hurd Windows & Doors Inc., 2008; Duty to Confer 316

Gross Construction Associates, Inc., v. American Mfrs. Mutual Ins Co., 2009; Keyword Searches 317

Gutman v. Klein, 2008; Termination Sanction and Spoliation 318

Glossary 321

Index 333