E-Discovery for Dummies Outline - Chapter 6

III. IDENTIFYING, PRESERVING, AND COLLECTING ESI

6. Identifying Potentially Relevant ESI

a. Scope of Discovery – three dimensions

i. ESI Locations

1. Availability

2. Accessiblity

3. Format

ii. Data custodians

1. Should be interviewed individually

iii. Date ranges

b. To perform duties re: three scopes

i. Early Case Assessment of data custodians

1. General guideline: 5-10 data custodians have 80% of responsive ESI

2. Major v. minor data custodians

ii. Broad Initial Assessment of Which ESI is Responsive and Where’s It’s Located. 3 Buckets:

1. Definitely falls within the scope.

a. Fraud: financial statements, reconciliations, and adjusting entries.

b. Dealing with dates complicated if databases were updated (e.g. legacy systems to SAP or Oracle).

c. MAC (modified/accessed/created) times must be verified by a computer forensics expert.

2. Might fall within the scope.

3. Outside the scope

a. ESI not subject to legal hold; may have to defend as not reasonably anticipated to be relevant later.

iii. Verify or correlate the time frames to events

c. Reducing the Burden with the Proportionality Principle

i. Cost or burden of ESI production versus the benefits.

d. Proportionality of Scale

i. FRCP 26(b)(2)(C) – value of the case vs. cost of ESI production. "A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost."

e. Negotiating with Proportionality

i. Ask for temporary reprieve

ii. Ask for reprieve from sanctions for not producing until court demands production.

iii. Ask opponent to show good cause for you producing ESI

iv. Ask court to shift cost

v. When ESI classified as NRA in position to have it excluded under FRCP 26(b) or shift costs under FRCP 26(c).

f. Mapping the Information Architecture

i. Data maps make it easier to implement litig. holds

ii. Data maps can show court or opposition some forms of ESI too tough or costly to access.

g. Data map designed to provide information needed to create e-discovery plan for the meet and confer session.

h. Data map shows ESI at a granular level:

i. Who are the data custodians?

1. Don’t ignore deviations from record retention policies.

2. Data custodians may be called to testify.

ii. Where are computers, laptops, handheld devices, and data servers, and who uses them?

iii. What format is ESI in?

iv. What are the data retention schedules and policies, disposal policies, backup policies and archiving rules?

1. FRCP has specific requirements for storage and production of different types of metadata.

2. Production in native format may be required.

i. Don’t say emails are gone if they are in a covert condition.

j. If there is an extensive infrastructure, don’t record in a spreadsheet, but use software from Ingersoll; Fios; or Exterro.

k. Include cost to recover not reasonably accessible data (NRA) to give judge way to weigh the impact of e-discovery against its usefulness.

l. Phoenix Four v. Strategic Resources (2006) late production of ESI was gross negligence. Def. not aware of 25GB of data located on unmapped hard drive partition not visible to PC user connected to server. Monetary sanctions awarded.

m. Data Retention Policies and Procedures

i. During identification phase describe to court:

1. Written policies

2. Methods for communicating policies and reminders

3. User training and documentation of that training.

4. Consent forms acknowledging policy understood, and agreement to abide by it, and awareness of consequences.

5. Methods for monitoring and enforcing compliance.

ii. FRCP 26(b)(2)(B) created concept of NRA ESI.

iii. Identification of ESI must:

1. What is and is not NRA and why.

2. The cost to produce various types or scopes of ESI regardless of accessibility.

3. Whether access will require legacy applications or consultants.

n. Brook’s Law – adding manpower to a late software project makes it later.