e-Discovery For Dummies

Linda Volonino is an e-discovery consultant and computer forensics expert who aids lawyers and judges in preparing for e-discovery. She is coauthor of Computer Forensics For Dummies. Ian Redpath is an attorney with 32 years of litigation experience in federal courts. He consults on e-discovery.

• Introduction 1Who Should Read This Book? 1About This Book 2What You’re Not to Read 2Foolish Assumptions 2How This Book Is Organized 3Part I: Examining e-Discovery and ESI Essentials 3Part II: Guidelines for e-Discovery and Professional Competence 3Part III: Identifying, Preserving, and Collecting ESI 4Part IV: Processing, Protecting, and Producing ESI 4Part V: Getting Litigation Ready 4Part VI: Strategizing for e-Discovery Success 5Part VII: The Part of Tens 5Glossary 5Icons Used in This Book 5Where to Go from Here 6Part I: Examining e-Discovery and ESI Essentials 7Chapter 1: Knowing Why e-Discovery Is a Burning Issue 9Getting Thrust into the Biggest Change in the Litigation 10New rules put electronic documents under a microscope 11New rules and case law expand professional responsibilities 12Distinguishing Electronic Documents from Paper Documents 14ESI has more volume 15ESI is more complex 15ESI is more fragile 16ESI is harder to delete 17ESI is more software and hardware dependent 18Viewing the Litigation Process from 1,000 Feet 18Examining e-Discovery Processes 20Creating and retaining electronic records 20Identifying, preserving, and collecting data relevant to a legal matter 21Processing and filtering to remove the excess 22Reviewing and analyzing for privilege 22Producing what’s required 23Clawing back what sneaked out 23Presenting at trial 24Chapter 2: Taking a Close Look at Electronically Stored Information (ESI) 25Spotting the ESI in the Game Plan 26Viewing the Life of Electronic Information 27Accounting for age 27Tracking the rise and fall of an e-mail 29Understanding Zubulake I 30Taking the two-tier test 34Preserving the Digital Landscape 36Facing Sticker Shock: What ESI Costs 37Estimating hard and hidden costs 39Looking at the costs of being surprised by a request 40Chapter 3: Building e-Discovery Best Practices into Your Company 43Setting Up a Reasonable Defensive Strategy 44Heeding judicial advice 45Keeping ESI intact and in-reach 46Braking for Litigation Holds 48Insuring a stronghold 48Getting others to buy-in 49Holding on tight to your ESI 50Putting Best Practices into Place 51Forming Response Teams 54Putting Project Management into Practice 55Tackling the triple constraints 56Managing the critical path 57Maintaining Ethical Conduct and Credibility 57Part II: Guidelines for e-Discovery and Professional Competence 59Chapter 4: The Playbook: Federal Rules and Advisory Guidelines 61Knowing the Rules You Must Play By 62Deciphering the FRCP 63FRCP 1 63FRCP 16 63FRCP 26 65FRCP 33 and 34 66Applying the Rules to Criminal Cases 66F.R. Crim. P. Rule 41 71F. R. Crim. P. Rule 16 71F. R. Crim. P. Rule 17 and 17.1 71Learning about Admissibility 71Lessening the Need for Judicial Intervention by Cooperation 73Limiting e-Discovery 74Finding Out About Sanctions 75Rulings on Metadata 77Getting Guidance but Not Authority from Sedona Think Tanks 79Collecting the Wisdom of the Chief Justices and National Law Conference 79Minding the e-Discovery Reference Model 80Following the Federal Rules Advisory Committee 81Chapter 5: Judging Professional Competence and Conduct 83Making Sure Your Attorney Gives a Diligent Effort 84Looking at what constitutes a diligent effort 84Searching for evidence 85Producing ESI 86Providing a certification 86Avoiding Being Sanctioned 87FRCP sanctions 87Inherent power sanctions 89Knowing the Risks Introduced by Legal Counsel 91Acting bad: Attorney e-discovery misconduct 91Relying on the American Bar Association and state rules of professional conduct 93Learning from Those Who Gambled Their Cases and Lost 94Policing e-Discovery in Criminal Cases 96Part III: Identifying, Preserving, and Collecting ESI 99Chapter 6: Identifying Potentially Relevant ESI 101Calling an e-Discovery Team into Action 102Clarifying the Scope of e-Discovery 104Reducing the Burden with the Proportionality Principle 107Proportionality of scale 107Negotiating with proportionality 108Mapping the Information Architecture 108Creating a data map 108Overlooking ESI 111Describing data retention policies and procedures 112Proving the reasonable accessibility of ESI sources 113Taking Lessons from the Mythical Member 113Chapter 7: Complying with ESI Preservation and a Litigation Hold 115Distinguishing Duty to Preserve from Preservation 116Following The Sedona Conference 116The Sedona Conference WG1 guidelines 117Seeing the rules in the WG1 decision tree 119Recognizing a Litigation Hold Order and Obligation 119Knowing what triggers a litigation hold 120Knowing when to issue a litigation hold 120Knowing when a hold delay makes you eligible for sanctions 122Accounting for downsizing and departing employees 122Throwing a Wrench into Digital Recycling 123Suspending destructive processes 123Where do you put a terabyte? 124Implementing the Litigation Hold 125Documenting that custodians are in compliance 127Rounding up what needs to be collected 127Judging whether a forensics-level preservation is needed 130Chapter 8: Managing e-Discovery Conferences and Protocols 133Complying with the Meet-and-Confer Session 133Preparing for the Meet-and-Confer Session 136Preservation of evidence 136Form of production 137Privileged or protected ESI 138Any other issues regarding ESI 139Agreeing on a Timetable 139Selecting a Rule 30(b)(6) Witness 140Finding Out You and the Opposing Party May Have Mutual Interests 141Part IV: Processing, Protecting, and Producing ESI 143Chapter 9: Processing, Filtering, and Reviewing ESI 145Planning, Tagging, and Bagging 146Taking a finely tuned approach 147Finding exactly what you need 147Stop and identify yourself 149Two wrongs and a right 150Learning through Trial and Error 151Doing Early Case Assessment 152Vetting vendors 153Breaking Out the ESI 154Crafting the Hunt 156Deciding on filters 156Keyword or phrase searching 157Deduping 157Concept searching 158Heeding the Grimm roadmap 158Sampling to Validate 159Testing the validity of the search 159Documenting sampling efforts 160Doing the Review 161Choosing a review platform 161How to perform a review 163Chapter 10: Protecting Privilege, Privacy, and Work Product 165Facing the Rising Tide of Electronic Information 166Respecting the Rules of the e-Discovery Game 166Targeting relevant information 167Seeing where relevance and privilege intersect 168Managing e-discovery of confidential information 170Listening to the Masters 172Getting or Avoiding a Waiver 172Asserting a claim 173Preparing a privilege log 173Responding to ESI disclosure 175Applying FRE 502 to disclosure 175Leveling the Playing Field through Agreement 177Checking out the types of agreements 177Shoring up your agreements by court order 178Chapter 11: Producing and Releasing Responsive ESI 181Producing Data Sets 182Packing bytes 183Staging production 184Being alert to native production motions 185Redacting prior to disclosure 187Providing Detailed Documentation 190Showing an Unbroken Chain of Custody 192Keeping Metadata Intact 193Part V: Getting Litigation Ready 199Chapter 12: Dealing with Evidentiary Issues and Challenges 201Looking at the Roles of the Judge and Jury 202Qualifying an Expert 202Getting Through the Five Hurdles of Admissibility 204Admitting Relevant ESI 204Authenticating ESI 205Self-authenticating ESI 206Following the chain of custody 206Authenticating specific types of ESI 207Analyzing the Hearsay Rule 208Providing the Best Evidence 210Probing the Value of the ESI 210Chapter 13: Bringing In Special Forces: Computer Forensics 211Powering Up Computer Forensics 212Knowing when to hire an expert 212Knowing what to expect from an expert 214Judging an expert like judges do 214Doing a Scientific Forensic Search 215Testing, Sampling, and Refining Searches for ESI 216Applying C-Forensics to e-Discovery 218Following procedure 219Preparing for an investigation 220Acquiring and preserving the image 222Authenticating with hash 223Recovering deleted ESI 224Analyzing to broaden or limit 225Expressing in Boolean 226Producing and documenting in detail 228Reinforcing E-Discovery 229Fighting against forensic fishing attempts 229Fighting with forensics on your team 230Defending In-Depth 231Part VI: Strategizing for e-Discovery Success 233Chapter 14: Managing and Archiving Business Records 235Ratcheting Up IT’s Role in Prelitigation 236Laying the cornerstone of ERM 236Pitching your tent before the storm 237Telling Documents and Business Records Apart 238Designing a Defensible ERM Program 240Designing by committee 240Starting with the basics 240Getting management on board with your ERM program 242Crafting a risk-reducing policy 244Punching up your e-mail policy 245Building an ERM Program 246Kicking the keep-it-all habit 248Doing what you say you are 248Getting an A+ in Compliance 249Chapter 15: Viewing e-Discovery Law from the Bench 251Examining Unsettled and Unsettling Issues 252Applying a reasonableness standard 252Forcing cooperation 253Looking at what’s reasonably accessible 254Determining who committed misconduct 254Exploring the Role of the Judge 258Actively participating 258Scheduling conferences 259Appointing experts 259Determining the scope of costs 262Chapter 16: e-Discovery for Large-Scale and Complex Litigation. 263Preparing for Complex Litigation 263Ensuring quality control 265Getting a project management process in place 266Proving the merits of a case by using ESI 266Educating the Court about Your ESI 267Using summary judgment and other tools 268Employing an identification system 268Form of production 269Creating document depositories 269Avoiding Judicial Resolution 270Determining the Scope of Accessibility 271Doing a good-cause inquiry 272Cost-shifting 273Getting Help 274Partnering with vendors or service providers 274Selecting experts or consulting companies 274Chapter 17: e-Discovery for Small Cases 277Defining Small Cases that Can Benefit from e-Discovery 278Theft of proprietary data and breaches of contract 278Marital matters 278Defamation and Internet defamation 279Characterizing Small Matters 280Keeping ESI out of evidence 280Shared characteristics with large cases 281Unique characteristics and dynamics 282Proceeding in Small Cases 283Curbing e-Discovery with Proportionality 286Sleuthing Personal Correspondence and Files 286Part VII: The Part of Tens 289Chapter 18: Ten Most Important e-Discovery Rules 291FRCP 26(b)(2)(B) Specific Limitations on ESI 291FRCP 26(b)(5)(B) Protecting Trial-Preparation Materials and Clawback 292FRCP 26(a)(1)(C) Time for Pretrial Disclosures; Objections 293FRCP 26(f) Conference of the Parties; Planning for Discovery 294FRCP 26(g) Signing Disclosures and Discovery Requests, Responses, and Objections 294FRCP 30(b)(6) Designation of a Witness 295FRCP 34(b) Form of Production 296FRCP 37(e) Safe Harbor from Sanctions for Loss of ESI 297Federal Rules of Evidence 502(b) Inadvertent Disclosure 298Federal Rule of Evidence 901 Requirement of Authentication or Identification 298Chapter 19: Ten Ways to Keep an Edge on Your e-Discovery Expertise 301The Sedona Conference and Working Group Series 302Discovery Resources 303Law Technology News 303Electronic Discovery Law 304E-Discovery Team Blog 304LexisNexis Applied Discovery Online Law Library 305American Bar Association Journal 305Legal Technology’s Electronic Data Discovery 306Supreme Court of the United States 306Cornell Law School Legal Information Institute and Wex 307Chapter 20: Ten e-Discovery Cases with Really Good Lessons 309Zubulake V Ubs Warburg, 2003–2005; Employment Discrimination 309Qualcomm V Broadcom, 2008; Patent Dispute 310Victor Stanley, Inc V Creative Pipe, Inc., 2008; Copyright Infringement 311Doe V Norwalk Community College, 2007; the Safe Harbor of Frcp Rule 37(e) 312United States V O’keefe, 2008; Criminal Case Involving E-discovery 313Lorraine V Markel American Insurance Co., 2007; Insurance Dispute 314Mancia V Mayflower Textile Services Co., Et Al., 2008; the Duty of Cooperate and Frcp Rule 26(g) .315Mikron Industries Inc V Hurd Windows & Doors Inc., 2008; Duty to Confer 316Gross Construction Associates, Inc., V American Mfrs Mutual Ins Co., 2009; Keyword Searches 317Gutman V Klein, 2008; Termination Sanction and Spoliation 318Glossary 321Index 333