Electronic Discovery and Evidence

Just Released! Arkfeld's Best Practices Guide for ESI Pretrial Discovery-Strategy and Tactics (2008-2009)

This Guide contains strategy and tactics for handling sixteen specific ESI issues throughout pretrial discovery. Whether it is a "meet and confer" or request for production these are the critical issues to focus in requesting or producing ESI. It provides you with a valuable strategy and checklist for, and guidance on, the legal and technology issues affecting your pretrial e-discovery decisions. 

The Guide is cross-referenced and hyperlinked with the Arkfeld on Electronic Discovery and Evidence treatise and part of the CD-ROM.   The 16 issues are:

§3.1 - Nature of Claims and Defenses
§ 3.2 - Scope of Discovery
§ 3.3 - Terminology and Classification of ESI
§ 3.4 - ESI Discovery, Type and Storage
§ 3.5 - Preservation Obligation and Litigation Hold
§ 3.6 - Controlling Costs
§ 3.7 - Search Methodology and Protocol
§ 3.8 - Inspection of Computer System and Deleted ESI
§ 3.9 - Chain of Custody and Evidentiary Issues
§ 3.10 - Rule 34 and Form of Production
§ 3.11 - Work-product, Privileged ESI, Nonwaiver Agreement and Retrieval Procedure
§ 3.12 - Accessibility of ESI and Cost Allocation
§ 3.13 - Burdensome, Relevancy and Overbroad
§ 3.14 - Protective Orders - Rule 26(c)
§ 3.15 - Certification of Production Efforts and Search Methodology and Protocol
§ 3.16 - Spoliation and Sanctions

For further information click here.

This Guide contains strategy and tactics for handling sixteen specific ESI issues throughout pretrial discovery. Whether it is a "meet and confer" or request for production these are the critical issues to focus in requesting or producing ESI. It provides you with a valuable strategy and checklist for, and guidance on, the legal and technology issues affecting your pretrial e-discovery decisions. 

The Guide is cross-referenced and hyperlinked with the Arkfeld on Electronic Discovery and Evidence treatise and part of the CD-ROM.   The 16 issues are:

§3.1 - Nature of Claims and Defenses
§ 3.2 - Scope of Discovery
§ 3.3 - Terminology and Classification of ESI
§ 3.4 - ESI Discovery, Type and Storage
§ 3.5 - Preservation Obligation and Litigation Hold
§ 3.6 - Controlling Costs
§ 3.7 - Search Methodology and Protocol
§ 3.8 - Inspection of Computer System and Deleted ESI
§ 3.9 - Chain of Custody and Evidentiary Issues
§ 3.10 - Rule 34 and Form of Production
§ 3.11 - Work-product, Privileged ESI, Nonwaiver Agreement and Retrieval Procedure
§ 3.12 - Accessibility of ESI and Cost Allocation
§ 3.13 - Burdensome, Relevancy and Overbroad
§ 3.14 - Protective Orders - Rule 26(c)
§ 3.15 - Certification of Production Efforts and Search Methodology and Protocol
§ 3.16 - Spoliation and Sanctions

For further information click here.

Motion against Fort Worth judge withdrawn after racist e-mail proven fake

Motion against Fort Worth judge withdrawn after racist e-mail proven fake. DALLAS -- After everyone in the courtroom heard the evidence Thursday, it was clear: A racist e-mail purportedly sent by Tarrant County state District Judge Elizabeth Berry was a fake, and Berry had nothing to do with it. In fact, the evidence was so overwhelming that African-American defense attorney Lesa Pamplin -- who had asked to have Berry taken off 17 of her cases -- withdrew her motion. "As an African-American attorney, I had a duty to my clients to make sure it is not true," . . .

Metadata in a Lawyer's Documents

Duty to Notify? "Dealing with metadata is a reality of practicing law in today’s legal environment. Attorneys continually create and receive electronic documents. Each of these documents may contain hidden “metadata.”  Metadata, when accessed, can reveal information that was never intended to be disclosed by the author of the document. For example, metadata could identify the date an electronic document was created, authored, as well as disclose previous versions and edits to the electronic document. Notably, metadata may be found in virtually any type of electronic file including pictures, video clips, documents or other types of digital files. The effective use of metadata can give one side a distinct advantage. . . .

EFF Sues DoJ for Stonewalling on Google Hire

Click here for the full story.  "There may be no reason for concern that the woman who served as the DoJ's top privacy lawyer during its tug of war with Google over users' search queries later went to work for Google. The Electronic Frontier Foundation wants to know whether she had any official conversations with the search giant during the ruckus, though, and it's suing Justice for failing to respond to its request. The Electronic Frontier Foundation  has filed a lawsuit against the U.S. Department of Justice for not responding in a timely manner to a request it made six months ago under the Freedom of Information Act. The organization had asked for any communications between former DoJ attorney Jane Horvath and Google (Nasdaq: GOOG) . . . . "

Workers Fired for Internet and E-mail Abuse

2007 Electronic Monitoring & Surveillance Survey: Over Half of All Employers Combined Fire Workers for E-Mail & Internet Abuse.  "NEW YORK - (Business Wire) From e-mail monitoring and Website blocking to phone tapping and GPS tracking, employers increasingly combine technology with policy to manage productivity and minimize litigation, security, and other risks. To motivate compliance with rules and policies, more than one fourth of employers have fired workers for misusing e-mail and nearly one third have fired employees for misusing the Internet, according to the 2007 Electronic Monitoring & Surveillance Survey from American Management Association (AMA) and The ePolicy Institute. . . . "

E-Discovery Ensures Evidence Can't Hide

E-Discovery Ensures Evidence Can't Hide.  "If you think you can hide evidence in the deep recesses of your computer system, you might want to talk to Jim Hennenhoefer. The San Diego area family law attorney is one of many in his field turning to "e-discovery," an emerging discipline that helps investigators locate just about anything tucked away in electronic files -- text, images, appointments, databases, Web sites and more. In a divorce Hennenhoefer recently handled, e-discovery efforts led to evidence of pricey commercial real estate one spouse carefully had kept off the other's radar. Electronic sleuthing uncovered a trail of shell companies that led to the husband's ownership of a $9 million building in Los Angeles. . . "

Europe's Data Protection Day

DATA PROTECTION DAY - 28 JANUARY - An initiative of the Council of Europe with the support of the European Commission. "A 2003 Eurobarometer survey on the protection of privacy in the European Union showed that 70% of European citizens feel they know little about what is done in their country to protect their personal data. However, data protection issues are central in citizens’ lives: at work, in their relations with public authorities, in the health field, when they travel or surf the internet. The right to data protection is also the prerequisite for the exercise of other fundamental rights, such as the right to freedom of speech or conscience. Therefore, in 2007, for the first time, the Council of Europe celebrated the Data Protection Day on 28 January. This was the occasion for European citizens to become more aware of personal data protection and of what their rights and responsibilities are in that regard. . . . "

E-discovery Product Purchase Considerations

E-discovery product purchase considerations. "As data volumes grow, it's increasingly difficult to locate relevant data. Data must be retained longer, and storage users cannot be counted upon to intuitively locate documents, spreadsheets or other data. This is a problem when dealing with electronic discovery (e-discovery) requests that impose a legal obligation to locate relevant data in a timely manner or face fines and possibly adverse judgments. Today, e-discovery tools provide powerful search capabilities that can quickly process and index billions of files based on keywords and other common metadata. The tools can also present search results in forms that are easy to understand and often deliver results in a form that is directly compatible with litigation management tools. . . . "

E-Discovery Law Firm and Vendor Lawsuit

How a White Shoe Law Firm Disputes a Bill. "Electronic discovery, the phrase that refers to the mountains of electronic data that could land at issue in a corporate lawsuit, is now at the heart of one such suit for the first time.

For years, newly minted J.D.s at big law firms have complained about the mind-numbing task of staring at computer screens sorting through this data--all in an effort to get those 2,000 billable hours for their $160,000 salaries.

Meanwhile, the partners overseeing these cases fret over whether they have complied with new federal rules governing the responsibilities of lawyers for making sure that all electronic documents actually get to the opposing side.

But in nearly every case, law firms hire outside . . . "

Don't Forget the Text Messages

Text messages are shortcut for investigators in teacher-student cases. "Private text messages between lustful school teachers and their student paramours are undoing many furtive liaisons. Parents and police are discovering evidence of the illegal sexual activity through text messages, and prosecutors increasingly are using the messages sent via cell phones to win convictions.

"People think it's a much more secret form of communication," said Todd Stefan, executive vice president of a Los Angeles-based security company that provides electronic forensic services. "Often times, we see parents monitor their children's computer use, but cell phones often fall through the cracks."  Not always. . . . "

Discovery of Employee-Owned Computer Equipment

Discovery of Employee-Owned Computer Equipment.  "Whether they are large or small, businesses struggle with the question of whether discovery requests served on the company also extend to home computers, cell phones, and other equipment personally owned by employees of the company. In a time when many corporate e-mail systems offer web access and telecommuting is increasingly common, this is not a simple analysis. Courts, too, have struggled for some time to find consistent rules for resolving this issue, and this is one situation where the amended Federal Rules of Civil Procedure have not provided significant additional guidance. A number of simple tests, however, can often suggest how many requests should be resolved, both at the enterprise level and with respect to specific individuals? I. Has the personal equipment been used for business purpose . . ."

RFID poised for the big time in 2008

Greater integration between mobile devices and consumer electronics.  "Next year will witness the spread of RFID applications into familiar, everyday settings, while consumer electronics, wireless technologies and security requirements will continue to benefit from the integration of RFID. These are just some of the predictions from AIM Global, the worldwide industry trade association and self-proclaimed authority on automatic identification and mobility solutions.

Practical RFID applications will find their way into familiar settings, including sporting events, the latest toys and food safety, according to the trade association. Next year's Beijing Olympics will see RFID applications being used to track marathon runners to ensure race time accuracy, watched by sports fans holding tickets authenticated by the same technology. . . ."

TorrentSpy Loses Case Due to Destruction of Evidence

TorrentSpy Loses Case Due to Destruction of Evidence.  "Electronic Discovery or eDiscovery in just a few short years has become a most powerful weapon for all sides in a court case. It is so important that ever updated guidelines are pouring out of court precedent as to what files you can or cannot purge as well as to how long is reasonable before files, emails or any other type of data can be destroyed. If you erase the wrong file or backup tape too soon a court may penalize you. Such penalties can and have included forfeiture of the case itself.

That is just what happened to TorrentSpy in its case against the major film studios. Stating that TorrentSpy hid and destroyed evidence that made a fair trial impossible a federal judge ruled against the indexing service in court. "Although termination of a case is a harsh sanction appropriate only in 'extraordinary circumstances' ... the circumstances in this case are sufficiently extraordinary to merit such a sanction" wrote U.S. District Court judge Florence-Marie Cooper. "Defendants' conduct during discovery in this case has been obstreperous", the court continued. 'They have engaged in widespread and systematic efforts to destroy evidence and have provided false testimony under oath in an effort to hide evidence of such destruction.' . . ."

NEWLY REVISED FEDERAL RULES OF CIVIL PROCEDURE, EFFECTIVE DECEMBER 1ST, 2007

Arkfeld's Electronic Discovery and Evidence Alert, December 17, 2007

WHAT ARE THE EFFECTS OF THE NEWLY REVISED FEDERAL RULES OF CIVIL PROCEDURE, EFFECTIVE DECEMBER 1ST, 2007, ON ELECTRONIC DISCOVERY?

Answer: The newly revised federal rules effective December 1st, 2007, are primarily stylistic in form.  However, it is important to know that key numbering and captioning for the federal rules, including e-discovery amendments, have changed. For example, former rule 37(f) has been changed to 37(e) and entitled:

(e) Failure to Provide Electronically Stored Information.

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

For a complete copy of these new revised federal rules effective December 1st, 2007, please visit Cornell Law School - Federal Rules of Civil Procedure; at http://cfr.law.cornell.edu/rules/frcp/index.html#toc.

US firms in the dark over data retention.

US firms in the dark over data retention. Half of companies have no data retention policy. "A year after the launch of the revised Federal Rules of Civil Procedure (FRCP), more than 65 per cent of US businesses remain unprepared to meet strict court requirements for the discovery and handling of electronic evidence, new research claimed today. The revised rules set "aggressive timelines" for the discovery of electronic information such as email, and strict penalties for the destruction of evidence.  They also include 'safe harbour' provisions to protect organisations that implement standard retention policies for electronically stored information. The rules were drafted by the Supreme Court and approved by Congress and the US Judicial Conference, and have already had a profound effect on how the US legal system handles electronic evidence including emails and digital files. . . ."

E-Discovery of Drug Prescriptions

"PHARMACY SOFTWARE VENDORS DECLARE SUPPORT FOR E-PRESCRIBING.  Thirteen of the leading pharmacy software companies in the U.S. declared their support today for electronic prescribing and detailed efforts to connect more independent pharmacists to the Pharmacy Health Information Exchange. . . .  The announcement comes on the heels of new research that tracked the number of prescriptions received by pharmacies before and after physicians began using electronic prescribing. The research showed an 11 percent increase in new prescriptions filled after physicians began e-prescribing.  Conducted by SureScripts and Walgreens using prescriber data from IMS Health, the research links a physician prescribing electronically, or "e-prescribing", to more of that physician?s prescriptions making it to the pharmacy. . . ."

E-Discovery Law a Boon for Lawyers.

E-Discovery Law a Boon for Lawyers.  "New regulations governing the storage and management of electronic data that might be needed in federal court actions has an increasing number of organization turning to outside counsel for help, according to a new study. An annual survey about litigation matters asked 303 corporate lawyers about the impact of the e-discovery law that went into effect last year. The e-discovery law is an amendment to the Federal Rules of Civil Procedure related to finding and managing electronically stored information that might be relevant in a legal dispute in federal court. The new law requires processes and technologies . . ."

The New E-Discovery Financial Burden - The New Rules in Action

The new e-discovery burden.  Rather than streamline and limit litigation, a rule change adds a new financial burden, Internet attorney Eric J. Sinrod says, "Almost a year ago the Federal Rules of Civil Procedure governing the discovery of electronic data were amended. While the changes were designed to reduce litigation costs, we've seen just the opposite.  The amendments broadened the definition of items subject to legal discovery, ranging from "documents" or "data compilations" to include all electronically stored information. Parties in a lawsuit can now demand from each other word processing documents, e-mails, voice mail and instant messages, blogs, backup tapes and database files. Failure to comply with these sundry electronic production obligations can lead to serious sanctions, sometimes to the tune of millions of dollars. In the aftermath of all the changes in the e-discovery landscape, let's take a closer look at how recent rulings are shaping the legal terrain. . . . "

Retrieving Electronic Evidence in the Courtroom.

Complex cases often depend on electronic evidence organizers. "Deborah Burk showed how effective litigation support technology can be in a dramatic “gotcha” moment during the 17th day of the Peregrine Systems fraud trial, a Tuesday morning in May. VideoTrack owners Deborah Burk and Shayne Davidson stood in the mock courtroom where lawyers practice presentations. The control room has a one-way viewing window for observers.  Under questioning by a prosecutor, Peregrine's former assistant controller, Denise Mastro, described how she helped others . . . "

Used Smartphones and PDAs for Sale on eBay Reveal Massive Volume of Sensitive Data

Used Smartphones and PDAs for Sale on eBay Reveal Massive Volume of Sensitive Data. " Used smartphones and PDAs for sale on eBay are loaded with sensitive personal and corporate information ranging from banking records to text messages and corporate emails that can be easily retrieved by hackers and data thieves, according to a sampling by mobile security software provider Trust Digital.
Trust Digital engineers recovered nearly 27,000 pages of personal, corporate, and device data from nine of 10 mobile devices purchased through eBay for the project, including a smartphone sold by an employee of a major corporation. The salvaged data included personal banking and tax information, corporate sales activity notes, corporate client records, product roadmaps, contact address books, phone and Web logs, calendar records, personal and business correspondence, computer passwords, user medication information, and other private, competitive or potentially damaging material. . . "