E-Discovery for Dummies Outline - Chapters 1 & 2

Here's the first installment of an outline I'm preparing of Linda Volonino and Ian Redpath's e-Discovery for Dummies. I hope to be able to complete the outline in additional posts very soon. To a certain extent this outline focuses on the information I did not already know, or that I found to be the most interesting.

OUTLINE OF E-DISCOVERY FOR DUMMIES

I. ESSENTIALS

1. E-Discovery Is A Burning Issue

a. Dec. 2006 Amendment to FRCP for ESI Discovery

i. E-Discovery begins as soon as suit is filed.

b.Waiting for a E-Discovery request can lead to sanctions; have to anticipate.

c. Gartner – 90% of U.S. Cos with rev. over $1B, face 147 cases at one time;$1.5M per case.

d.Metadata –

i. ‘mining’ if embedded in document.

ii. Williams v. Sprint must produce ESI with MD intact.

e. Files deleted from Recycle Bin remain unless overwritten.

f. Replicant Data – auto-recover data in some apps.

g.Litigation Process

i. Duty to Preserve

ii. Complaint Served

iii. Meet & Confer 21 days before scheduling, w/in 99 days of compl.

1. Preservation issues

2. Search issues

3. Format of production

4. Scope of ESI

5. Est. costs.

iv. Scheduling Conference w/in 120 days of compl. – 1st Ct.

Appearance.

h.Electronic Records Management (ERM) – or RIM

i. Retention Policy

1. Health, fin., pharm., regs?

ii. Implement the Policy

iii. Monitor Compliance

iv. Destroy

v. Change Policy if Litig. Foreseen – Litig. Hold

i. Processing & Filtering to Remove Excess

i. Gartner: 1 GB review = $18,750.

j. Privilege Review

k.Production

i. FRCP 34(b) in form ordinarily maintained, or reasonably usable form.

l. Clawbacks

i. Inadvertent Disclosure

ii. C/B agmt. discussed at M&C

2. Electronically Stored Information

a. 2006 – Litig. Costs 33% of after tax profits of Fortune 500.

b.Johnson v. Kraft Foods – can’t object to terms databases, data dictionary as too vague.

c. Storage Types

i. Online – random access

ii. Nearline – discs,flash drives

iii. Offline storage – usually magnetic tape – sequential access [disaster recovery].

d.Zubulake I

i. UBS employment gender discrimination case.

ii. Emails not backed up if deleted same day received.

iii. SEC Rule 17a-4 – preserve for 3 years

iv. Categories of Data – last 2 inaccessible

1. Active, online data

2. Near-Line Data – automated storage e.g. optical disks

3. Offline – JBOD manual access for disaster recovery; not searchable – whole tape must be loaded.

4. Backup tapes using data compression- sequential access, de-compress. Relevance must outweigh retrieval costs. Ct. ask if disrupt business.

5. Erased, fragmented or corrupted data

v. Scheindlin – not time to access, but degree of manipulation of data.

vi. Adverse instruction – b/c tapes missing, jury can conclude it was destroyed b/c it contained damaging info.

e. Nothing in the rules — specifically, Rule 34(b) — prevents the court from ordering that paper is a "reasonably usable" form where the only other

source for the information is not reasonably accessible.

f. Good cause needed for inaccessible source discovery – benefit > burden & costs.

g.First tier vs. second tier – NRA if unlabeled or nonindexed backup media. If 2nd tier costs will be shared.

h.In re Quintus Corp. – Duty to preserve ESI even if bankr.

i. Calif. Civil Discovery Act discards Z 2 tiers; discoverable disaster recovery ESI.

j. Litig. Hold – must preserve data in its native state.

k. Review - $1800 - $2500 per 1GB

l. Hidden Costs – soft or indirect – business disruption

m. Process and Review most expensive stages.