GPSolo Magazine - March 2006

Science And Technology Law
E Is for Evidence: Examining Recent E-Discovery Developments

To stay ahead of the game, practitioners need to be aware of several key, emerging changes in electronic discovery. These include new locations for creating and storing e-evidence; the proposed Federal Rules of Civil Procedure revisions regarding e-information; and evolving technology processes for filtering, searching, reviewing, and producing electronic data.

Collecting the evidence: Where can e-evidence hide? Consider the following questions:

• What type of information is involved? Where is this information located?

• Which employees are involved in the suit? How do they typically maintain their data?

• What is the best manner for collecting that information?

When searching for electronic evidence, the following “out of the computer box” evidence sources should be considered, in addition to employees’ laptop and desktop hard drives, backup tapes, and corporate servers:

• PDAs. Personal digital assistants, such as Palm Pilots, BlackBerries, and PocketPCs.

• USB drives. USB card readers make it possible for electronic data theft to occur quickly, quietly, and discretely. Computer forensic examiners may locate any such transactions to or from a hard drive and a USB drive.

• Instant messaging. In a corporate context, unless preventative controls are in place, employees can use IM tools to send small amounts of text and to transfer files. IMs can be located on the hard drive of the users or on the server used to transfer the conversations.

• Digital cameras. Devices of all sizes are being fitted with digital camera capabilities, allowing individuals to take a picture of highly sensitive areas or documents.

As technology continues to advance, other essential sources of electronic evidence will surface, and counsel has a duty to keep up with these changes.

FRCP rule changes. On September 20, 2005, the U.S. Judicial Conference approved changes to the Federal Rules of Civil Procedure, which are projected to take effect on December 1, 2006, after being promulgated by the U.S. Supreme Court and Congress. The rules address the following electronic discovery obligations:

• Early discussion of e-discovery issues: Rule 16(b), Rule 26(f), and Form 35. The proposed rules advocate amending Rules 26(f) and 16(b) as well as Form 35 to prompt counsel to discuss early on how to handle e-discovery issues.

• Definition of electronically stored information: Rule 34(a). By articulating a modernized definition of discoverable material, the new Rule 34 clearly indicates that electronically stored information is subject to production and discovery. It also incorporates terms that are designed to include e-mail and electronic databases as well as future technological developments. This broad definition applies wherever the term “electronically stored information” is mentioned within the rest of the Rules.

• Form of production: Rule 34(b). The new rules do not direct counsel to pick one production format over another. When production format is not specified, a responding party should produce documents in the format in which the information is “ordinarily maintained” or in a form that is reasonably useable.

• Option to produce electronically stored information in response to interrogatories: Rule 33(d). The old Rule 33 allowed a party responding to an interrogatory to produce business records as an option for responding to an interrogatory. Under the new version, the responding party is allowed to produce e-data when responding to interrogatories as long as the requesting party is able to locate and identify the information as easily as the responding party.

• Reasonably accessible information: Rule 26(b)(2)(C). A responding party should produce electronically stored information that is relevant, not privileged, and reasonably accessible. To obtain electronically stored information that is not “reasonably accessible,” the requesting party must obtain a court order compelling the responding party to produce the information.

• Belated assertion of privilege: Rule 26(b)(5)(B). This provision addresses inadvertent production of privileged or protected information. A party who unintentionally discloses privileged information may retrieve it from the receiving party unless the receiving party can prove that they are entitled to the information.

• “Safe harbor” on sanctions: Rule 37(f). The most controversial of the proposed changes is the creation of a limited Rule 37 safe harbor. It would give parties reprieve from judicial sanctions for failing to hand over electronically stored information in cases where the information was lost as a result of the routine, good-faith operation of an electronic information system.

• Subpoena for electronically stored information: Rule 45. An amendment to Rule 45 would allow parties to subpoena electronically stored information pursuant to the changes in the rest of the amended rules.

Evolving e-discovery best practices. When preparing the data for review and production, counsel must consider:

• Can the documents be filtered and searched?

• How will the documents be reviewed for responsiveness and privilege?

• What are the deadlines for completing the discovery review?

• In what format must the documents be produced to the opposing party?

Cutting-edge filtering techniques. Automated data filtering technology—filtering by custodian, time and date, file size, keyword, or duplication—is one revolutionary advancement defense counsel should consider when preparing for an electronic discovery document review. Clients using all of the filtering techniques described below typically experience a 75 percent reduction in the number of documents they need to review for production.

• Custodian filtering. Segregating the key custodians who may be relevant to the case and isolating the files associated with those specific individuals.

• Time and date filtering. Targeting discrete periods of times that are particularly relevant to a case or that are required to be produced in accordance with a pending court order.

• File size filtering. Capturing files between a certain size range in order to isolate midsized files from exorbitantly large files.

• Keyword searching. Applying a set of keywords and terms to segregate potentially responsive information for further review and scrutiny.

• De-duplication. Identifying documents that are duplicates of one another and eliminating these duplicate documents from the review and production set of documents.

Concept searching tools. Concept searching uses sophisticated technology to define the meaning behind search terms by identifying word patterns and occurrences in documents and translating them into “concepts.” The concept search engine then compares these concepts across the document set, looking for relationships between documents. Concept searching, when combined with traditional Boolean keyword searching, can be useful to lawyers reviewing large volumes of documents for responsiveness and privilege.

Document review and production options. In most cases, two options exist for review—paper and electronic. If the coordinating lawyer chooses a paper review, the electronic documents are printed and shipped to a team of reviewers. Another option is to review and produce the documents electronically, which can generally occur in three ways: (1) looking at “loose” electronic files in their “native” format, (2) using a local litigation database, or (3) working with an online document review repository hosted by an e-discovery service provider. Although a review team may conduct an electronic review exclusively in one of the three general forms mentioned above, the size and nature of the case may dictate the use of all three in varying amounts.

 

Kristin M. Nimsger is vice president, legal technologies, for Kroll Ontrack Inc., an electronic discovery, computer forensics, and paper discovery company; she can be reached at knimsger@krollontrack.com. Michele C. S. Lange is a staff attorney for Kroll Ontrack Inc.;she can be reached at mlange@krollontrack.com.

For More Information about the Section of Science and Technology Law

- This article is an abridged and edited version of one that originally appeared on page 8 of The SciTech Lawyer, Winter 2005 (1:3).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/scitech.

- Periodicals: The SciTech Lawyer, quarterly magazine; Jurimetrics, quarterly scholarly journal; e-BLAST, e-newsletter highlighting Section events and news.

- CLE and Other Educational Programs: The Section offers a variety of CLE opportunities through both in-person sessions and teleconferences throughout the year; visit the Section’s website for a full calendar of events.

- Books and Other Recent Publications: Scientific Evidence Review: Current Issues at the Crossroads of Science, Technology and the Law, Monograph No. 7; The Discovery Revolution: E-Discovery Amendments to the Federal Rules of Civil Procedure; The E-Business Legal Arsenal: Practitioner Agreement and Checklist; Electronic Evidence and Discovery: What Every Lawyer Should Know.

 

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