EDRM - OLP
-
Upload
david-kearney -
Category
Documents
-
view
1.094 -
download
0
description
Transcript of EDRM - OLP
EDRM – Collection, Processing, Analysis
Presented by: David Kearney
www.linkedin.com/in/davidjkearneyThe Organization of Legal Professionals
www.theolp.org February 2013
The Phases of EDRMFour sessions – 90 minutes each session
I. Overview/CollectionII. Collection/ProcessingIII. ProcessingIV. Analysis
OLP - eDiscovery Certificate Program
EDRM - Overview• http://www.edrm.net/• Stands for The Electronic Discovery Reference Model• First launched in 2005 and released publically in
2006• Developed to provide a standardized approach to e-
Discovery related activities• Helps visually depict the movement of electronic
discovery components from one phase to the next.• Contains 9 phases/stages;
Information ManagementIdentificationPreservationCollectionProcessing
Review Analysis Production Presentation
OLP - eDiscovery Certificate Program
EDRM - Overview
• Stages standardize workflow• Stages are not fixed sequentially• Not meant as a literal, linear or waterfall model• The EDRM is meant to be iterative in nature
OLP - eDiscovery Certificate Program
EDRM - Overview• Information Management
– Getting your electronic house in order to mitigate risk & expenses should e-discovery become an issue, from initial creation of electronically stored information through its final disposition.
• Identification– Locating potential sources of ESI & determining its scope, breadth & depth.
• Preservation– Ensuring that ESI is protected against inappropriate alteration or destruction.
• Collection– Gathering ESI for further use in the e-discovery process (processing, review, etc.).
• Processing– Reducing the volume of ESI and converting it, if necessary, to forms more suitable for review & analysis.
• Review– Evaluating ESI for relevance & privilege.
• Analysis– Evaluating ESI for content & context, including key patterns, topics, people & discussion.
• Production– Delivering ESI to others in appropriate forms & using appropriate delivery mechanisms.
• Presentation– Displaying ESI before audiences (at depositions, hearings, trials, etc.), especially in native & near-native forms, to elicit further
information, validate existing facts or positions, or persuade an audience.
Stages
OLP - eDiscovery Certificate Program
EDRM - Overview• Information Management– Many issues can be better managed if this stage is
taken seriously and implemented with consistent & sound practices.
– This is THE STARTING POINT for the entire process. Sound and comprehensive information management strategies aid organizations in the identification, preservation, and collection steps of the process and can lower the number of documents that need to be preserved, collected, reviewed and produced. This is where more organizations can GET IT RIGHT. Furthermore, risks and costs are reduced.
OLP - eDiscovery Certificate Program
EDRM - Overview
• Identification– Locating potential sources of ESI &
determining its scope, breadth & depth.
OLP - eDiscovery Certificate Program
EDRM - Overview
• Preservation– Ensuring that ESI is protected against
inappropriate alteration or destruction.
OLP - eDiscovery Certificate Program
EDRM - Overview
OLP - eDiscovery Certificate Program
Common TermsECA/EDA – 2 definitions
Legal – End-to-EndE-Discovery/Data - Analyze unstructured electronically
stored informationProportionality
Ways to Limit BurdensCourt may look for ways to use proportionality
FRCP – Federal Rules of Civil ProcedureGoverns all aspects of procedure for civil matters in United
States District CourtsRules 26 to 37 - Discovery
04/08/2023 OLP - eDiscovery Certification Course
EDRM - Overview
EDRM - Overview
OLP - eDiscovery Certificate Program
COLLECTION
OLP - eDiscovery Certificate Program
EDRM - CollectionGathering ESI for further use in the e-discovery process (processing, review, etc.).
Once documents/files have been preserved (sometime one and the same), collection can begin
Transfer/acquisition of data for review Includes; Servers, PCs, Macs, Linux, Windows, iOS, Android,
handheld devices, flash/thumb drives tablets, MP3 players, phone systems, backup tapes, CD/DVD, databases (financial, CRM, ERP), structured/unstructured data, Cloud/Social Networking Sites
Proper planning and careful implementation can reduce time & money spent
Ensures integrity of evidence Proper collection can guard against future disputes (discovery
about discovery – causes unneeded rancor between parties) Process must be defensible, proportionate, efficient, auditable, and
targeted. May impact and expand the scope of the discovery process Collection costs can be significant
OLP - eDiscovery Certificate Program
EDRM - CollectionYou Oughta Know…
In an Exchange/Outlook E-Mail environment, if a user deletes E-Mail from the deleted items folder (sometimes called double-deleting) the E-Mail is then stored in the Dumpster on the Exchange Server.
The administrator can set the Dumpster to retain deleted E-Mail for a specified period or indefinitely.
This should be a discussion point when looking to collect data from an Exchange Server.
OLP - eDiscovery Certificate Program
EDRM - CollectionThe collection methodology for acquiring ESI in a legally defensible manner
OLP - eDiscovery Certificate Program
EDRM - CollectionA reasonable collection strategy must address what ESI should be collected, when, and howWhat: The total corpus of potentially collectible
ESI will usually have been defined during the process of formulating the internal preservation directive/litigation hold. Usually consists of four main categories of data locations:1. Individual employee files2. Department/group files3. Enterprise databases4. Backup Media
OLP - eDiscovery Certificate Program
EDRM - Collection When: Not all data identified for preservation
needs to be collected right away. Some data may never need to be collected. Collecting all data that has been preserved may unnecessarily inflate costs and overwhelm the case team with irrelevant data
How: Once the timing of collection from a data location has been decided, the team must assess what level of forensic defensibility should be employed for the collection
OLP - eDiscovery Certificate Program
EDRM - Collection
Normal collection processes generally involve straight forward copying, that maintains the integrity of the metadata, of the ESI as it exists on the system
A forensic protocol must ensure that the process is carried out in a way that will produce reliable information consistently, so the individual conducting the collection can testify
The protocol must also provide for a means of verifying the integrity of the work that has been done by maintaining an untouched mirror copy of the inspected materials
OLP - eDiscovery Certificate Program
EDRM - Collection
Maintaining Integrity of Metadata…The single most important thing that can
be done is to use a software or hardware write blocker.
OLP - eDiscovery Certificate Program
EDRM - Collection
MetadataSystem Metadata - Data about the
architecture of the systemFile Metadata - Data about the data in a
specific file that is recorded internal to that file
OLP - eDiscovery Certificate Program
EDRM - CollectionYou Oughta Know…Acquisition is actually the proper term for collecting electronic data. In digital forensics, examiners refer to the copying of data as acquiring to avoid any confusion that might be caused by using “copying”, since copying doesn’t imply that the copy was made in a forensically sound manner.
OLP - eDiscovery Certificate Program
EDRM - Collection
Tools Used During Collection:Write BlockerLEOSuitesTask SpecificSoftwareHardware
OLP - eDiscovery Certificate Program
EDRM - Collection• Forensically Defensible Collection – a forensically sound
collection will preserve all potentially relevant metadata that may be of use to the trial team in its claims. This collection type utilizes a “write-blocker” to prevent alteration of source media when a device is attached to retrieve the data.
• Maintains rigorous chain-of-custody controls that document all collection steps, from initial access to the point of storage or processing.
• Ensures that nothing about the data is altered or degraded• A collection by a third-party vendor will often be the best
method. • Typical of a targeted collection
OLP - eDiscovery Certificate Program
EDRM - Collection• Forensic Collection – a forensic copy of a hard
drive will include every byte of data on that drive, including data in unallocated space and slack space. Forensic inspection of a party’s computer system is rarely necessary.
• Because forensic collections are much more invasive and inclusive, there is a greater risk of disclosure of information that is either irrelevant to the matter or protected by privilege claims. The forensic protocol must therefore take steps to mitigate risks and protect the producing party.
OLP - eDiscovery Certificate Program
EDRM - Collection• Unallocated Space – The area of computer media,
such as a hard drive, that does not contain normally accessible data. Unallocated space usually occurs as the result of a file being deleted. Until portions of the unallocated space are used for new data storage, in most instances, the old data remains and can be retrieved using forensic techniques.
• Slack Space – The space that remains on a hard drive when a file is saved that does not take up one or more complete clusters of space on the drive. Slack Space is part of the Unallocated space on a hard drive
OLP - eDiscovery Certificate Program
EDRM - CollectionYou Oughta Know…
Re-booting, Defragging, or running other disk management utilities may clear some data from the unallocated space on a storage device.
Some MAC systems, the later ones, are installed with a secure delete function that deletes a file and then goes in behind the actual deletion and overwrites with zeros the space that was occupied by the file.
Also, there are third party applications, know as File Wiping applications that can obliterate a file, within reason. One cannot delete or overwrite a file that is being used by another part of the system.
OLP - eDiscovery Certificate Program
EDRM - Collection
The decision regarding the degree of forensic defensibility will be required for ESI collection. This decision must be made on an individual basis depending on the cost, accessibility, and needs of the case.
The software & process used must, at least, be capable of write protecting the files during the collection process and maintaining the integrity of both the system and file metadata associated with each file/document
One constant is the need to have detailed and complete documentation of the critical decisions and actions made during the collection process
OLP - eDiscovery Certificate Program
EDRM - Collection
Whether or not a file server should be forensically collected depends on the nature of the investigation. More often than not, collecting the active data and relevant network shares is appropriate
If extracting an event, log, intrusion, or other time critical event, forensic imaging of the entire server may be necessary
OLP - eDiscovery Certificate Program
EDRM - Collection
• Collection can be accomplished by:– The Client – Corporate/IT Personnel– Custodians – Potential dangers when
custodians/clients try to collect their own data – especially when seeking consistency and unbiased process, e.g. 10, 25, 50 custodians and a delete key.
– Outside Law Firm– Vendor
OLP - eDiscovery Certificate Program
• Forensic inspection protocols– There are no “standard” protocols for forensic
inspection, but at least must mitigate the risk of disclosure of irrelevant or protected information
– Parties and courts generally consider the same issues when crafting protocols:• Qualifications and objectivity of the inspector• Methods that the inspector(s) will use• Detailed set of instructions for exactly what is subject to
inspection and copying• A means of verifying the integrity of the work
EDRM - Collection
OLP - eDiscovery Certificate Program
The court may limit discovery and shift costs when ESI is not reasonably accessible because of undue burden or cost
Rule 26(b)(2)(B) of the FRCP states: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
The Federal Rules also provide an outline of how objections are to be me made and resolved
EDRM - Collection
OLP - eDiscovery Certificate Program
• Not Reasonably Accessible– Balancing Test:• Cost of converting data into more accessible format• Cost to review the data for responsiveness, privilege, or
other concerns• Business disruption and other internal costs
– Other issues to address:• Relevance of data residing on the source• Overall litigation value of the data at issue• Other means to get information
EDRM - Collection
OLP - eDiscovery Certificate Program
On motion to compel discovery or for a protective order, the party from which discovery is sought must show that information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause. However, the court may put conditions on the discovery from the source, such as cost-shifting.
Legacy data is frequently the subject of claims that it is “not reasonable accessible”. Backup tapes are being considered more-and-more as reasonably accessible, but have historically been classified a not reasonably accessible.
EDRM - Collection
OLP - eDiscovery Certificate Program
• Sources of ESI– Shared network resources are resources, files, or
other data shared throughout the network being examined, such as• E-Mail servers• Document Servers• Files Servers• Other resources shared across the network
EDRM - Collection
OLP - eDiscovery Certificate Program
• Other sources– Cloud/web-based storage and E-Mail (e.g. Gmail,
Yahoo, Box, Dropbox, Facebook…• Absent a subpoena or court order, it is nearly
impossible to collect the data held by an ISP• Flash, temporary, and ephemeral data storage (e.g.,
thumb/external drives leave data droppings)• Social Networking applications• Databases (reports v. exporting the data)
EDRM - Collection
OLP - eDiscovery Certificate Program
• Structured v. Unstructured data• Differences & Specifics
– Structured Data - Information with a high degree of organization» Relies on users» Legal Hold at application level
– Unstructured Data » No identifiable structure» Potential large number of users» May be largely duplicative
• How it is applied to e-Discovery– Structured Data – e-Discovery expenses are IT & User costs for
identification, Collection, and Legal Hold– Unstructured Data – Costs are for Processing, Analysis & Review
EDRM - Collection
OLP - eDiscovery Certificate Program
• Cost Factors– Travel to different locations to have personnel on-site to
perform collection– Whether the collection is performed by use of an automated
script that can run remotely or without manual operation– Custodian interviews at the time of the collection may raise
initial costs, but are more efficient in the long run since such interview will likely to be ultimately needed
– Forensic collection require the use of different, more complicated techniques, and the collected data will need extra handling during processing and review
EDRM - Collection
OLP - eDiscovery Certificate Program
• Cost Factors– Impacted by the number of megabytes, gigabytes, terabytes,
Petabytes, Exabytes, etc. needed to be collected– The human review, which can be the most time consuming and
expensive part of the entire e-discovery process…even if using Technology Assisted Review…volume of review becomes larger with the amount of data collected, just by basic nature of more…
– Controlling, Monitoring, and being able to justify a sound stepped approach to limit the data being collected (custodians, data range, etc.)
EDRM - Collection
OLP - eDiscovery Certificate Program
EDRM - CollectionQuality Control Validating that all ESI has been collected. In general, over-inclusive
collections, coupled with repeatable, documented, and defensible methods to cull and search ESI will be most effective at validating the collection of ESI.
Court are increasingly sensitive to the costs of electronic discovery and the concept of proportionality, which should be taken into account when assessing the scope of the collection
In some cases, the use of software tools will aid in validating the collection of ESI. Failure to use commonly accepted methods and technologies may expose the client to additional risk
In addition, each piece of digital data can generate a unique value, known as a HASH VALUE. Commonly used hash formats are “MD5” and “SHA-1”. If a dispute arises about the integrity of a piece of information, the hash value of the original data can be compared with the original's has value.
OLP - eDiscovery Certificate Program
EDRM - Collection
A word about foreign data discovery… What is routine and mandated practices in the U.S.
may amount to criminal conduct abroad. Counsel must consult local authorities before engaging
in discovery related activities. Absent a connection with a party to the U.S.-based
litigation, obtaining ESI in a foreign country requires resort to the Hague Convention, the Data Protection Directive, or local laws of the particular jurisdiction
Foreign countries are extremely sensitive to privacy
OLP - eDiscovery Certificate Program
EDRM - Collection
…Outside of the U.S.Special attention should go to the collection of data from sources outside of the United States. Many countries, including the European Union have laws, regulations, and policies that restrict a company’s ability to collect and transmit data outside of the jurisdiction for use in legal proceedings in the U.S. Careful evaluation should be given to collection of data outside of the U.S. and extra time needs to be allocated for such collections
OLP - eDiscovery Certificate Program
EDRM - Collection
• Other commonly used tools and devices for collection– Faraday Bags– Inventory & Tracking System– Check-in & Check-out Procedures– Cameras and Video Recording
OLP - eDiscovery Certificate Program
EDRM - CollectionResource:Digital Forensics for Legal Professionals - Understanding Digital Evidence From the Warrant to the Courtroom
Larry E. DanielLars E. Daniel
OLP - eDiscovery Certificate Program
EDRM - CollectionTips
When wrongdoing is suspected, don’t “take a quick peak” at a computer without forensic collection
Don’t delay to preserve a deviceDon’t assume that all devices are the same a PCsAlways document the processDon’t assume that the device is not encryptedDo not save time/money but using traditional file copy
methodsDon’t process everything at one timeTest and sample search terms and expressionsExamine foreign language types
OLP - eDiscovery Certificate Program
PROCESSING
OLP - eDiscovery Certificate Program
EDRM - Processing
ProcessingReducing the volume of ESI and converting it, if necessary, to forms more suitable for review & analysis.
OLP - eDiscovery Certificate Program
Native Format
• Documents in native format:– Have not been converted in any way from its
original form– Will appear and behave exactly as they did at the
point of creation– If produced in native form, no costs incurred to
convert into another format– Contains full metadata, which often includes
privileged or sensitive information (subject, author, date, tracking changes, etc.)
OLP - eDiscovery Certificate Program
Imaged Format
• Documents in imaged format:– Equivalent to printing a document and creating a
static page image– Can be time-consuming, expensive to process– Can lead to loss of information useful to
requesting party, i.e. the loss of metadata
OLP - eDiscovery Certificate Program
Metadata• Metadata, which is a part of all types of ESI, exists in
fields that can be used to populate a load file database created by the requesting party.
• Examples of metadata fields are:– Names (author, sender, recipient, blind recipients)– Dates (create date, sent, received, modified)– Subject (primarily for e-mail)– Document type– “Text” (searchable field containing the text or body of the
document itself) –
OLP - eDiscovery Certificate Program
EDRM - ProcessingYou Oughta Know…
“Text” field needs to be removed when redacting
OCR needed re-done after redactions applied – Maybe a You Oughta Know slide
OLP - eDiscovery Certificate Program
EDRM - Processing
OLP - eDiscovery Certificate Program
EDRM - Processing
Assessment• Assessment is a critical first step in the workflow as it
allows the processing team to ensure that the processing phase is aligned with the overall e-discovery strategy, identify any processing optimizations that may result in substantive cost savings and minimize the risks associated with processing. A critical aspect of this step is to ensure that the processing methodology will yield the expected results in terms of the effort, time and costs, as well as expected output data streams.OLP - eDiscovery Certificate Program
EDRM - Processing
Preparation• During assessment a determination is
made as to which classes of data need to be moved forward through processing. At that point there may be a number of activities required to enable handling and reduction of that data.
OLP - eDiscovery Certificate Program
EDRM - Processing
Selection• One of the primary reasons for
“processing” data in an e-discovery project is so that a reasonable selection can be made of data that should be moved forward into an attorney review stage
OLP - eDiscovery Certificate Program
EDRM - ProcessingOutput• The data that has been selected to move
forward to review is transformed into any number of formats depending on requirements of the downstream review platforms, or in certain circumstances simply passed on to a review platform in its existing format; or it may be exported in a native format.
OLP - eDiscovery Certificate Program
EDRM - Processing
Overall Analysis / Validation• Throughout the four phases of processing
there are opportunities to analyze the data or results of certain sub-processes to ensure that overall results are what was intended, or that decisions as to the handling of the data are valid and appropriate.
OLP - eDiscovery Certificate Program
EDRM - ProcessingOverall Quality Control• Validation is the testing of results to ensure
that appropriate high level processing and selection decisions have been made, and ensuring that ultimate results match the intent of the discovery team. Quality Control (“QC”) involves testing to see that specific technical processes were performed as expected, regardless of what the results show.
OLP - eDiscovery Certificate Program
EDRM - Processing
Overall Reporting• To meet the needs of project management;
status reporting; exception reporting; chain of custody and defensibility it is important that processing systems track the work performed on all items submitted to processing.
OLP - eDiscovery Certificate Program
EDRM - Processing
• Collected ESI must first be entered into an appropriate software program or tool with processing ability
• Regardless of who processes the data, it is imperative that the resulting data sets are reviewed and that the process is validated
• The processing software must provide logs of what was accomplished and what failed during processing.
OLP - eDiscovery Certificate Program
EDRM Processing
Tools Used for Processing PC/Server-Based Cloud-Based Vendor-Based
OLP - eDiscovery Certificate Program
EDRM - Processing
• Methods for limiting volume include:– Culling to exclude particular document types– De-duplication– Elimination of system files– Application of search terms and date
limitations
OLP - eDiscovery Certificate Program
EDRM – Processing
• Culling– Processing methods must account for and
remove irrelevant data– Before data is indexed for processing, it can be
culled by the following criteria:• Remove all files of file types deemed to have not
evidentiary value• Remove documents with certain file paths• Eliminate files that fall below a size threshold
OLP - eDiscovery Certificate Program
EDRM - Processing
• Common Search Techniques:– Used to locate relevant and eliminate irrelevant – Keyword
• List of words likely to be contained in relevant documents
– Boolean• cat AND dog• cat NOT lion
– Proximity searches• cat /10 scratch• cat /p scratch
OLP - eDiscovery Certificate Program
EDRM - Processing
• Search terms (cont.):– What is being searched?
• Text of document?• Metadata?• Attachments?• Images?
– Formulating terms• Witness interviews• Names of key persons• Product/project/code names and numbers• Consider input from opposing party
OLP - eDiscovery Certificate Program
EDRM - Processing
• De-duplication:– The process of removing exact copies of the
same message or file from a data set, thus reducing the number of files that need to be reviewed.
– Within-custodian– Across-custodian– “Near duplicates” – slight changes to a
document; different hash values
OLP - eDiscovery Certificate Program
EDRM - Processing
Culling Methods• Deduplication• DeNISTing• Paths• Size• No evidentiary value
OLP - eDiscovery Certificate Program
EDRM - Processing
• Deduplication• DeNISTing
OLP - eDiscovery Certificate Program
EDRM - Processing
• Budget based on assumptions from actual data– Client should have a good idea of custodian data– Know the data being worked with, e.g. E-mail will
have a much different volume vs. databases/spreadsheets
– Having more time permits greater cost control, & consistency
– Open communications and discussions with opposition to agree on scope and methods
– Collecting all data that has been preserved may inflate costs unnecessarily
OLP - eDiscovery Certificate Program
EDRM - Processing
You Oughta Know…
OLP - eDiscovery Certificate Program
Foreign Language Documents
Unless your software application understands Unicode, it will not handle foreign language documents easily.
In order to successfully search and review foreign language documents, you need to make sure the software used to collect and process them is Unicode compliant.
ANALYSIS
OLP - eDiscovery Certificate Program
EDRM - AnalysisAnalysis
Evaluating ESI for content & context, including key patterns, topics, people & discussion.
OLP - eDiscovery Certificate Program
EDRM - Analysis
OLP - eDiscovery Certificate Program
EDRM - Analysis
• Fact Finding
OLP - eDiscovery Certificate Program
EDRM - Analysis
• Search Enhancement
OLP - eDiscovery Certificate Program
EDRM - Analysis
• Review Enhancement
OLP - eDiscovery Certificate Program
EDRM - Analysis
• Process Analysis
OLP - eDiscovery Certificate Program
EDRM - Analysis
• Validation/Quality Assurance
OLP - eDiscovery Certificate Program
Analysis
• Evaluating ESI for relevance & privilege. – Privilege issues– Review methods– Budgeting and costs
• Evaluating ESI for content & context, including key patterns, topics, people & discussion.
OLP - eDiscovery Certificate Program
Review & Analysis: Privilege Issues
• Rule 26: “Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense…”
• We review to:– Distinguish relevant from irrelevant– Protect privileged material• Attorney-client communications• Attorney work product
OLP - eDiscovery Certificate Program
Review & Analysis: Privilege Issues
• Waiver of privilege• Clawback agreements– Agreement that inadvertent production of privilege
material will not constitute a waiver• Quick peek agreements– No effort to weed out privileged material up front
• Evidence Rule 502– Generally establishes that inadvertent production will not
result in waiver– Encourages use of protective orders including clawback
agreements
OLP - eDiscovery Certificate Program
Review & Analysis: Privilege Issues
Alers v. City of Philadelphia, No. 08-4745, 2011 WL 6000602 (E.D. Pa. Nov. 29, 2011)
• Where defendants inadvertently produced a privileged memorandum as part of a multi-page document amid more than 2000 pages of document production and where they requested return of the document four days after learning of its disclosure at a deposition (where there was no objection made), the court found that privilege was not waived (despite defendants’ choice to attach the memorandum to a publically available motion)
OLP - eDiscovery Certificate Program
Review & Analysis: Review Methods
• Coding– Responsive or non-responsive– Privileged– Confidentiality – “Key” documents
• Basic linear review• Concept searching• Clustering (uses linguistic, latent semantic technologies)
– E.g., when searching the term “diamond,” clustering will allow you to distinguish between “baseball” diamond and diamond “ring.”
• Predictive coding
OLP - eDiscovery Certificate Program
Technology Assisted Review
• …or Predictive Coding• …or Computer Assisted Review•…or Intelligent Review•…or ???? Review
OLP - eDiscovery Certificate Program
EDRM - CARRM
• EDRM’s Computer Assisted Review Reference Model
04/08/2023 OLP - eDiscovery Certification Course
Review & Analysis: Review Methods
• Predictive coding• Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ.
1279, 2012 WL 607412 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012)– Magistrate Judge Andrew Peck approved use of computer-assisted
review (predictive coding) to locate responsive documents – “[C]omputer-assisted review is an acceptable way to search for
relevant ESI in appropriate cases.” – “As with keywords or any other technological solution to e-discovery,
counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI while adhering to Rule 1 and Rule 26(b)(2)(C) proportionality. ”
OLP - eDiscovery Certificate Program
Review & Analysis: Budgeting and Costs
• Discovery costs may well be the largest budget item, other than trial
• Since few cases ever get to trial, discovery is often the single most expensive part of any litigation matter
OLP - eDiscovery Certificate Program
Review & Analysis: Budgeting and Costs
• Understand the cost drivers– Number of custodians– Volume of ESI each custodian will handle– Review of ESI
• Create a budget of the estimated costs as early as possible
• All assumptions should be stated explicitly in the budget so that variances can be noted and the client can adjust expectations accordingly
OLP - eDiscovery Certificate Program
Review & Analysis: Budgeting and Costs
• The complexity of the case will have a direct impact on the cost of e-discovery– Complexity of the coding schema (number of tags the
reviewers will be applying)– Sophistication of the privilege issues presented by the facts
of the case– Number of passes of review that are anticipated
• The most efficient way to organize a review is with numerous decisions during a single pass review rather than through separate review phases of the same material
OLP - eDiscovery Certificate Program
Review & Analysis: Budgeting and Costs
Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp., 674 F.3d 158 (3d Cir. 2012)
• On appeal, the Third Circuit vacated the District Court’s approval of taxable costs related to electronic discovery and remanded with instruction to re-tax in accordance with this opinion. Specifically, the court concluded that the relevant vendors’ charges “would not qualify as fees for ‘exemplification’” and that “of the numerous services the vendors performed, only the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD involved ‘copying’” and were thus recoverable.
OLP - eDiscovery Certificate Program
Production
• Delivering ESI to others in appropriate forms & using appropriate delivery mechanisms.
OLP - eDiscovery Certificate Program
Production
• Parties should agree on a form of production at the outset of discovery, ideally at the earliest stage of discovery.
• Under Rule 34, the requesting party may specify a format to which the producing party may object and offer an alternative format.
• Rule 34 of the FRCP states that the format must be either the form in which it is ordinarily maintained in the usual course of business or a reasonably usable form.
OLP - eDiscovery Certificate Program
Production
• Native format– The form in which the document is maintained in
the system where it was created• Reasonably useable formats– Any imaged format of the ESI such as TIFF or PDF– Should include metadata
OLP - eDiscovery Certificate Program
Production: Native Format
• Documents in native format:– Have not been converted in any way from its
original form– Will appear and behave exactly as they did at the
point of creation– If produced in native form, incur no cost to
convert into another format– Contain full metadata, which often includes
privileged or sensitive information (subject, author, date, tracking changes, etc.)
OLP - eDiscovery Certificate Program
Production: Imaged Format
• Documents in imaged format:– Equivalent to printing a document and creating a
static page image– Can be time-consuming, expensive to process– Can lead to loss of information useful to
requesting party, i.e. the loss of metadata
OLP - eDiscovery Certificate Program
Production: Metadata• Metadata, which is a part of all types of ESI, exists in
fields that can be used to populate a load file database created by the requesting party.
• Examples of metadata fields are:– Names (author, sender, recipient, blind recipients)– Dates (create date, sent, received, modified)– Subject (primarily for e-mail)– Document type– “Text” (searchable field containing the text or body of the
document itself) – • TIP: “Text” field needs to be removed when
redacting
OLP - eDiscovery Certificate Program
Documenting Production
• ESI productions should include correspondence, production shipments, confirmation and shipping receipts, and a tracking log showing:– What material was produced– On which type of storage media (CD, DVD, hard
drive)– How it was transmitted
OLP - eDiscovery Certificate Program
Documenting Production
• The production media should be subject to quality-control checks to:– Assure completeness– Show lack of corruption– Conform with production format (as agreed upon
in the parties’ 26(f) discovery plan) • Documentation of these processes should be
kept to show timely and accurate compliance with production requests.
OLP - eDiscovery Certificate Program
Overall Tips
• Consult FRCP and local rules of pertinent jurisdiction• Stay organized and keep complete records, specifically about
critical decisions and actions during the processes• Track what was done, by whom, when & how it was done• Maintain specific routine practices across cases/projects to
increase efficiency and ensure critical steps are not missed
IT IS NOT IF PROCESSES/ACTIONS WILL BE SCRUTINIZED…
…BUT WHEN
BE PREPARED!
OLP - eDiscovery Certificate Program
Additional Resources
• E-Discovery and Electronic Records - Healthcare Resource Guide to e-Discovery and Electronic Records - Focuses on the process of electronic discovery (e-discovery) and electronic records management for healthcare document retention and production. – Authors: Kimberly A. Baldwin-Stried ReichKatherine Ball, Michelle Dougherty, Ronald J. Hedges
04/08/2023 OLP - eDiscovery Certification Course
THANK YOU
David J. Kearneywww.linkedin.com/in/davidjkearney