Renew Data Corp.

Bob RobinsonBob RobinsonGeneral CounselGeneral Counsel

Renew Data Corp.Renew Data Corp.(512) 458-3004(512) 458-3004

Fundamental IssuesFundamental IssuesOf Of

Electronic DiscoveryElectronic Discovery

Renew Data Corp.

Electronic Discovery

I. Technical Basics and Practical I. Technical Basics and Practical MattersMatters

II. Elec. Discovery Under the Civil RulesII. Elec. Discovery Under the Civil Rules

III. Spoliation IssuesIII. Spoliation Issues

IV.IV. What to Do NowWhat to Do Now

Renew Data Corp.

Fast-Changing Environment

Exploding amounts of electronic Exploding amounts of electronic datadata

Emerging body of EE case law and Emerging body of EE case law and rulesrules

Sarbanes-Oxley Act and USA Sarbanes-Oxley Act and USA Patriot ActPatriot Act

Abundance of disputes where Abundance of disputes where source data is primarily electronicsource data is primarily electronic

Renew Data Corp.

Emerging Risks

Information is discoverable in itsInformation is discoverable in its native format native format

30(b)6 deposition of SysAdmin30(b)6 deposition of SysAdmin

Process attacks are more Process attacks are more commoncommon

New emphasis on cooperation New emphasis on cooperation with investigatorswith investigators

“ “Don’t Ask, Don’t Tell” is historyDon’t Ask, Don’t Tell” is history

Renew Data Corp.

BEWAREBEWARETHE THREE-THE THREE-

HEADEDHEADEDMONSTER!MONSTER! PCs & ServersPCs & Servers

+ E-mail system+ E-mail system

+ Backup system+ Backup system

= A de-facto data = A de-facto data repository!repository!

Renew Data Corp.

Electronic - Better Than Paper

SearchableSearchableKeyword searches are essentialKeyword searches are essentialMore certain, costs less & saves More certain, costs less & saves

timetime

More information than just the textMore information than just the text

Efficient for sharing and copyingEfficient for sharing and copying

Can be protected from alterationCan be protected from alteration

Candid behaviorCandid behavior

Renew Data Corp.

Backup tapes

PC (home/office), laptop hard drives Network file servers FAX servers Voicemail systems Palm Pilots, PDAs Mobile Internet Devices Kleiner v. Burns, 48 Fed. R. Serv.3d 644, 2000 WL 1909470 (D. Kan., 2000)

31 Flavors of Elec. Data

Renew Data Corp.

Deleted Files

Sectors & ClustersSectors & ClustersWhat are deleted files?What are deleted files?What can be undeleted?What can be undeleted?Deleted files & fragments searchableDeleted files & fragments searchableHistory/record of deletions is importantHistory/record of deletions is important

Data constantly changes as the machine is Data constantly changes as the machine is usedusedTake a forensically sound “image” right away to Take a forensically sound “image” right away to

avoid data alteration and destructionavoid data alteration and destructionData can be preserved at low costData can be preserved at low cost

Renew Data Corp.

Civil Rules

Electronic information clearly is Electronic information clearly is discoverablediscoverable Rowe Entertainment, Inc. v. William Morris Rowe Entertainment, Inc. v. William Morris

AgencyAgency, 205 F.R.D. 421 (S.D.N.Y. 2002), 205 F.R.D. 421 (S.D.N.Y. 2002)

Electronic format may be required - paper Electronic format may be required - paper production alone may not be sufficientproduction alone may not be sufficient Anti-Monopoly Inc. v. Hasbro, Inc.Anti-Monopoly Inc. v. Hasbro, Inc., 94 Civ. , 94 Civ.

2120, 1996 WL 22976 (S.D.N.Y. Jan.23, 1996)2120, 1996 WL 22976 (S.D.N.Y. Jan.23, 1996) Storch v. IPCO Safety Products Co.Storch v. IPCO Safety Products Co., 1997 U.S. , 1997 U.S.

Dist. LEXIS 10118, 1997 WL 401589 (E.D. Pa. Dist. LEXIS 10118, 1997 WL 401589 (E.D. Pa. July 16, 1997)July 16, 1997)

Renew Data Corp.

Civil Rules

Backup tapes required if relevantBackup tapes required if relevantSee generallySee generally In re CI Host, Inc.In re CI Host, Inc., 2001 WL , 2001 WL

34047373 (Tex. Nov. 21, 2002)34047373 (Tex. Nov. 21, 2002)

Copies of files aren’t enough – need forensic Copies of files aren’t enough – need forensic imagesimagesSee generallySee generally Taylor v. StateTaylor v. State, 2002 WL , 2002 WL

31318065 (Tex. App. Oct. 17, 2002)31318065 (Tex. App. Oct. 17, 2002)

Deleted data requires extra relevanceDeleted data requires extra relevanceRule 34 – requests extend to records “reasonably Rule 34 – requests extend to records “reasonably

available in the ordinary course of business”available in the ordinary course of business”Antioch Co. v. Scrapbook BordersAntioch Co. v. Scrapbook Borders, 2002 WL , 2002 WL

31387731 (D. Minn. April 29, 2002)31387731 (D. Minn. April 29, 2002)

Renew Data Corp.

Time is of the essenceNote for the discovering party

Key – get producing party to preserve Key – get producing party to preserve data as soon as practicable, with data as soon as practicable, with proper forensic techniquesproper forensic techniques Gates v. BandoGates v. Bando, 167 F.R.D. 90 (D. Colo. 1996), 167 F.R.D. 90 (D. Colo. 1996) Taylor v. StateTaylor v. State, 2002 WL 31318065 (Tex. App., 2002 WL 31318065 (Tex. App.

Oct. 17, 2002) Oct. 17, 2002)

Crucial factors:Crucial factors: Get the forensic image of each hard driveGet the forensic image of each hard drive Get them to stop recycling backup tapesGet them to stop recycling backup tapes

Renew Data Corp.

Time is of the essenceNote for the discovering party

Immediately send a letter to ask Immediately send a letter to ask opposing counsel for preservationopposing counsel for preservationForensic image duplicateForensic image duplicateStop recycling backup tapesStop recycling backup tapesDon’t delete filesDon’t delete filesDon’t defragment or compress any hard drivesDon’t defragment or compress any hard drivesDon't add new software or operating systemsDon't add new software or operating systemsDon't access subject files until imagedDon't access subject files until imaged

If you get one of these letters, watch If you get one of these letters, watch out!out!

Renew Data Corp.

After Preservation

Propose a discovery planPropose a discovery planElectronic searching - keywordsElectronic searching - keywordsResidual data areas - agree to search or notResidual data areas - agree to search or notRestoration of deleted files - may be importantRestoration of deleted files - may be importantMethod for review of privileged/private docs.Method for review of privileged/private docs.Method for production (specify data and media Method for production (specify data and media

formats)formats)Archival and disposal of electronic dataArchival and disposal of electronic dataRetention of third-party service provider - costRetention of third-party service provider - cost

Renew Data Corp.

Systems Administrator Deposition

Alexander v. F.B.I.Alexander v. F.B.I., 188 F.R.D. 111 (D.D.C. , 188 F.R.D. 111 (D.D.C. 1998)1998)

Things to investigate:Things to investigate: Network and backup system overviewNetwork and backup system overview Email system and backupEmail system and backup Backup system specifics (policy and hardware,Backup system specifics (policy and hardware,

software) software) Records retention / litigation responseRecords retention / litigation response

(who is in control?) (who is in control?) Web server infoWeb server info Voicemail or fax server info.Voicemail or fax server info. PDAs issued & usedPDAs issued & used

Renew Data Corp.

Responding in Discovery

Don’t open files, use forensic image Don’t open files, use forensic image processprocess

Stop recycling backup tapes Stop recycling backup tapes

Try to limit search to active filesTry to limit search to active files TX Rule 196.4; TX Rule 196.4; Rowe Entertainment, Inc. v.Rowe Entertainment, Inc. v. William Morris AgencyWilliam Morris Agency, 205 F.R.D. 421 , 205 F.R.D. 421 (S.D.N.Y. 2002) (S.D.N.Y. 2002)

Describe your response plan (in detail)Describe your response plan (in detail)

Seek protection from burdensome Seek protection from burdensome requestsrequests

Renew Data Corp.

Responding in DiscoveryChain of Custody Issues

Was the file altered during copying Was the file altered during copying process?process?

Was the file altered during analysis?Was the file altered during analysis?

Reliability of copying process?Reliability of copying process?Was a forensic image taken, or should it Was a forensic image taken, or should it

have been?have been?

Data preservation and security?Data preservation and security?Who handled and processed the data, Who handled and processed the data,

and how can you prove it is “as-was”?and how can you prove it is “as-was”?

Renew Data Corp.

Bearing the cost

Cost elements.Cost elements.

Imaging of hard drives and serversImaging of hard drives and servers

Restoration/retrieval of backup dataRestoration/retrieval of backup data

Restoration/recovery of deleted filesRestoration/recovery of deleted files

Searching tapes & hard drives, sorting,Searching tapes & hard drives, sorting, de-duplicating and other processing work de-duplicating and other processing work

Is on-site work needed?Is on-site work needed?

Costs may be allocated between the Costs may be allocated between the parties.parties.

Rowe Entertainment v. William Morris AgencyRowe Entertainment v. William Morris Agency,, 205 F.R.D. 421 (S.D.N.Y. 2002)205 F.R.D. 421 (S.D.N.Y. 2002)

Renew Data Corp.

Spoliation of electronic data

The Duty to PreserveThe Duty to Preserve Party on notice when it reasonably foresees or Party on notice when it reasonably foresees or anticipatesanticipates litigation, even before the plaintiff manifests an litigation, even before the plaintiff manifests an intent tointent to sue. sue. National Tank Co. v. BrothertonNational Tank Co. v. Brotherton, 851 S.W.2d , 851 S.W.2d 193193 (Tex. 1993) (Tex. 1993) Totality of the circumstances test will be used. Totality of the circumstances test will be used. Trevino v.Trevino v. OrtegaOrtega, 969 S.W.2d 950 (Tex. 1998), 969 S.W.2d 950 (Tex. 1998) Rule 3.04(a) of TX Disciplinary Rules: a lawyer may Rule 3.04(a) of TX Disciplinary Rules: a lawyer may notnot unlawfully obstruct access to, delete, or alter unlawfully obstruct access to, delete, or alter relevantrelevant information, or counsel others to do so. information, or counsel others to do so. Good article: Judge Curt B. Henderson, Good article: Judge Curt B. Henderson, The Duty toThe Duty to Preserve Electronic DataPreserve Electronic Data, 66 Tex. B.J. 24 (Jan. 2003), 66 Tex. B.J. 24 (Jan. 2003)

Renew Data Corp.

Spoliation of electronic data

Real ConsequencesReal Consequences Financial sanctions, including personal Financial sanctions, including personal liabilityliability

• Danis v. USN Communications, Inc.Danis v. USN Communications, Inc.,, 2000 WL 1694325 (N.D. Ill. Oct. 23, 2000) 2000 WL 1694325 (N.D. Ill. Oct. 23, 2000)

Adverse inference instructionAdverse inference instruction Default judgmentDefault judgment Sarbanes-Oxley – potential criminal Sarbanes-Oxley – potential criminal sanctions sanctions PR – avoid the trust crisis spawned by PR – avoid the trust crisis spawned by Enron!Enron!

Renew Data Corp.

Using an expert

Retained as a neutral expert -Retained as a neutral expert -

Officer of the CourtOfficer of the Court

Assists in defining scope and processAssists in defining scope and process

Creates images with proper chain of Creates images with proper chain of custodycustody

Performs agreed searching/filteringPerforms agreed searching/filtering

Provides data for privilege reviewProvides data for privilege review

Formats and provides data to requesting Formats and provides data to requesting partyparty

Renew Data Corp.

Using an expert

Retained directly by a party -Retained directly by a party -

Gives tactical & strategic advice in discoveryGives tactical & strategic advice in discovery

Preserves hard drives via forensic imagingPreserves hard drives via forensic imaging

Inspection agent for other party’s expertInspection agent for other party’s expert

Assists in defining scope and processAssists in defining scope and process

Creates images with proper chain of custodyCreates images with proper chain of custody

Performs agreed searching/filteringPerforms agreed searching/filtering

Provides data for privilege reviewProvides data for privilege review

Renew Data Corp.

Advising Clients about Retention

DData retention/destruction policies and ata retention/destruction policies and practicespractices

Remember both!Remember both!

Counsel’s role when litigation is Counsel’s role when litigation is anticipatedanticipated

What is reasonable for the future?What is reasonable for the future?

Costs are coming down with new technologyCosts are coming down with new technology

Law is coalescing to give guidance for Law is coalescing to give guidance for production and cost allocationproduction and cost allocation

Lawyers and judges are more savvyLawyers and judges are more savvy

Result: judges will require more productionsResult: judges will require more productions

Renew Data Corp.

Best Practices – What to do now

You will have to produce data – plan for You will have to produce data – plan for it it

Implement data retention policiesImplement data retention policies

Move quickly to preserve data to avoidMove quickly to preserve data to avoid spoliation/obstruction charges spoliation/obstruction charges

Become familiar with EE solutions andBecome familiar with EE solutions and providers – shop around providers – shop around

Counsel’s role – remember Nancy Counsel’s role – remember Nancy Temple!Temple!