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
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.
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.
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.
h.Electronic Records Management (ERM) – or RIM
i. Retention Policy
1. Health, fin., pharm., regs?
ii. Implement the Policy
iii. Monitor Compliance
v. Change Policy if Litig. Foreseen – Litig. Hold
i. Processing & Filtering to Remove Excess
i. Gartner: 1 GB review = $18,750.
j. Privilege Review
i. FRCP 34(b) in form ordinarily maintained, or reasonably usable form.
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].
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.