The ABCs of eDiscovery topic of SBM workshop

By Roberta M. Gubbins

Legal News

"The little 'e' (as in e-discovery) puts people off," said Brett Burney opening his discussion of the ABCs of eDiscovery at the workshop sponsored by the Practice Management Section of the State Bar of Michigan. The event was held on June 27th at Lansing Community College West Campus.

While the term sounds intimidating, he noted, it is simply applying traditional discovery practices to the digital world of documents created and stored electronically on a computer which include:

* E-mail

* Word documents

* Excel spreadsheets

* Web pages

* Text messages

* Digital audio files

* YouTube videos

* Skype conversations

* Digital pictures

* Social media

Even the court rules were changed to recognize the digital world. The Federal Rules of Civil Procedure were amended to officially recognize that "electronically stored information" (ESI) is equivalent to information stored on paper.

"The use of the term "ESI," said Burney, "was a very good way to incorporate the entire general idea that the rules apply not just to tangible documents but also to electronic information.

E-discovery v traditional :

Although there has been discussion around removing the 'e' from the word discovery and calling both types simply discovery, the consensus is that it should remain so that "we can at least start to have that conversation on why other considerations are important when we talk about discovery. It also forces us to be sure that those things (i.e. e-mail, twitter, etc.) aren't just jumped over."

One of the biggest differences between electronic discovery and traditional paper discovery, he explained, is simply the immense volume of electronically stored information.

In addition to the sheer enormity of electronic information available, it is also dynamic rather than static and some ESI such as QuickBooks, might be incomprehensible when separated from the system that created it.

The "voluminous aspect of electronic information" is what has brought about the concepts of technology-assisted review where computers can help decide which messages are confidential and thus privileged.

"Why is that so important?" Burney asked. "Because if you have 10 million e-mail messages to review, how are you going to look at every single message. As legal counsel, you are responsible for looking at every message to make sure that you produce all the responsive material but nothing that is privileged."

Allowing computers to decide what is privileged is "where the cases are coming down. There is no way you can physically look" at each piece of discovery and judges are supporting the use of computer review of materials.

Then there is the issue of the dynamic nature of electronic documents, he noted. It is possible to access the metadata of a word file by clicking on properties, for example, which will reveal when the file was created, modified and last saved and by which computer or user. Just opening the file changes the metadata--the problem comes if there is a question about who had access to the file on down the line.

Burney recommends not touching the computer with the information if protection of the file's history is important.

"If you want to get a full forensic copy of the information on that computer, make sure that you have a forensic professional create a forensic image of that computer before it is turned on."

Additionally, Burney noted that electronic information is persistent. "Delete doesn't mean delete." When a file is deleted, it goes into the recycle bin first and it can be retrieved.

Electronic information is often duplicated on back up tapes, which may or may not be available. Some companies overwrite back up tapes after a period of time. Personal computers can be accessed if they have relevant information that is not privileged.

The Federal Rules of Civil Procedure also get into how the raw material should be sent. Parties can request the documents be sent in the "native form" meaning the form in which it was created or as a pdf or word or excel file. The rules also state that a party doesn't have to produce information if creates an undue burden or cost.

It has been provided that the court can't impose sanctions on a party for failure to provide ESI lost as a result of routine good faith operation of the company's electronic information system. An example would be a routine cleaning of e-mail every six months.

The discussion of Federal Rules also applies to state rules. "I think about 38 states, including Michigan, have adopted changes to their own rules that have to do with electronic discovery.

Collecting and preserving ESI

The most expensive phase in an e-discovery project, he said, is the collection of e-mail and electronic documents. It is important for a lawyer to know where the client stores that information.

Collecting the data requires input from the lawyers to determine what is relevant and from the technology professionals to explain where information is stored and how it can be exported off the system. Computer forensic professionals may be necessary to make a bit-by-bit copy or image of a computer's hard drive that will preserve all the information without making any changes to the underlying data.

Processing and reviewing ESI

Now comes the task of processing and reviewing of the electronic evidence that has been collected. If there are only a few pages of documents or e-mails, the review phase is not too burdensome. Reviewing several million bits of information can be onerous task. Burney recommends narrowing your search by filters such as date, specific custodians, file types, file sizes, etc.

Reviewing the electronic files can be done with the help of computer applications that provide search tools and allow organization of information. There are e-discovery vendors that can process, upload and host data as well as cloud-based service providers such as Lexbe, Nextpoint or Logikcull.

The perfect search tool that can find the "needle in the digital haystack by using a targeted term or phrase" is the elusive goal of e-discovery. Searching is not easy and while lawyers are familiar with searching on Google or Lexis, there are idiosyncrasies involved with digital information retrieval.

Several judges, Burney noted, have expressed their lack of confidence in the lawyer's ability to craft a successful search protocol for e-discovery and have stated that the lawyer who selected the methodology must be able to explain the method used, show that it is right for the task and used properly.

Brett Burney of Burney Consultants provides professional consulting services to corporate executives and legal professionals. Burney is a featured speaker at numerous legal technology conferences including the ABA TECHSHOW, LegalTech and ILTA. Blog: www.ediscoveryinfo.com

Published: Mon, Jul 8, 2013

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