11. PRODUCING AND RELEASING RESPONSIVE ESI
a. Producing Data Sets
i. Files with content must be produced.
ii. Privileged and confidential information must be redacted.
b. U.S. military’s production of PDF of report about the death of Nicola Capilari and the wounding of Guiliana Sgrena. [See: https://en.wikipedia.org/wiki/Giuliana_Sgrena ] with information that could be used by enemy was not properly redacted – a black highlighter tool was used in Adobe Acrobat instead of a redaction tool, and the black box was easily removed.
c. Staging Production
i. Prioritize the order in which ESI will be processed and produced on a rolling basis.
d. Native Production Motions
i. When no agreement or court order re: forms of production, can produced in manner ordinarily maintained, or a reasonably usable form.
ii. Producing reasonably accessible metadata that enables the receiving party to access, search, and display the information is mandatory unless your lawyer negotiated some sort of Get Out of Jail Free card with the opposing counsel or the court.
iii. United States v. O’Keefe production of ESI as PDFs or TIFFs will suffice, unless defendants can show formats are not reasonably usable and the native format with the accompanying metadata meet the criteria of reasonably usable whereas the PDF or TIFF formats do not.
e. Redacting Prior to Disclosure
i. AP report showed that hearing transcript discussing Facebook’s confidential settlement of ConnectU suit contained redacted portions which could be revealed.
ii. Automatic software can search for text strings to redact.
iii. SCO Group complaint against DaimlerChrysler for violation of its Unix software agreement included the document modification history, which showed that SCO originally planned to use the Bank of America for copy infringement.
iv. See the NSA’s recommendations for proper redaction technique at: https://www.nsa.gov/ia/_files/support/i733-028r-2008.pdf
f. Production History Log EDRM Specifications:
i. Date sent
ii. Sent to whom, with full contact info.
iii. Means by which it was sent with tracking info.
iv. Description of media sent, including a copy of the label.
v. Components produced
2. Searchable Text.
3. Native Files
4. Load Files
5. Extracted metadata
vi. Document IDs
vii. Location of copy of the data that was sent.
viii. Document Request which is being responded to.
g. Chain of Custody
i. Tracks how ESI is gathered, analyzed, and preserved for production.
1. Which files were opened.
2. Searches run,
3. Time and date of each step.
4. Description of forensic acquisition methodology used.
ii. Enhancing credibility before a judge , particularly against an allegation of tampering.
iii. File-level Chain of Custody – validate what happened to a file prior to its admission in a case.
h. Keeping Metadata Intact
i. Forms are agreed to at the meet-and-confer session
1. Native file with metadata intact
a. Load files
b. Extracted metadata
c. Searchable text
d. eXtensible markup language XML
i. reduces cost of moving data between programs.
ii. Minimizes errors.
iii. Cuts cycle times for production and delivery of ESI.
iv. Minimizes e-discovery disputes because of its adaptable load file format.
2. Near Native – another searchable format.
3. Near Paper – images files.
4. Hard Copy
ii. White v. Graceland College Center for Professional Development & Lifelong Learning (2009) – sent dates of emails differed from created dates of the attachments; native file production ordered of emails from both recipients and senders.