E-Discovery for Dummies Outline - Chapters 3 & 4
3. E-Discovery Best Practices
a. FRCP 37(e) sanctions if failure to obey order for discovery
i. Adverse inference
b.Zubulake – affirmative steps to preserve necessary; litig. hold
c. Kevin Keithley v. TheHomeStore.com, IT can’t claim ignorant of need to
d.United States v. Philip Morris – in-house lawyers must forcefully
intervene to ensure ESI is preserved.
e. Lorraine v. Marketl Am. Ins. Co.
i. must promptly suspend automated processes to overwrite ESI;
ii. metadata must be kept intact.
iii. Emails and other docs may be examined by forensic expert.
f. Arteria Property v. Universal Funding def. sanction for failure to preserve
data on web site even though it was maintained by 3rd party vendor.
g.Archive saves ESI with a searchable index.
i. Backup copies can be in unsearchable data dumps.
h.United States ex rel. Parikh v. Premera Blue Cross
i. PwC non-party objects retrieval too expensive
ii. Doesn’t identify standard to calculate expense.
iii. If preparing to produce some emails, implication that it has
retrieved all emails – cost of retrieval assumed and production cost
i. Relying on custodians to preserve ESI not good faith effort.
j. Litigation Hold:
i. Identify ESI to be preserved, who has it.
ii. Designate person in charge of hold.
iii. Notify all involved.
iv. Verify compliance and document
k. Padgett v. City of Monte Sereno sanction when employee with no
knowledge of hold, reformatted coworker’s hard drive.
l. Phillip M. Adams v. Dell, Fujitsu, Sony, ASUS deliberate destruction of
evidence is spoliation. Responsbile employees not enough – must have
coherent retention policy.
m. RSS – send information automatically to a digital device.
i. Google Docs
ii. MS Office Live Workspace
i. Milestones marking completion of tasks.
ii. Multiple concurrent or sequential activities
iii. Resources specifically allocated to tasks.
iv. Resources also constraints
v. End results – time, cost, performance, or quality
vi. Team of people
vii. Critical path – tasks that must be completed on schedule or
projection completion will be delayed.