Electronic Discovery refers to the discovery of electronic documents and data…including e-mail, web pages, word processing files, computer databases, and virtually anything that is stored on a computer or electronic device.

The Sedona Conference(www.thesedonaconference.org)

Best Practices, Recommendations & Principles for Addressing Electronic Document Production(2004)

The Sedona Principles

The Sedona Principles

eDiscovery Why is this important…because greater than 48%

of all corporate communications never appear in paper format…and over 92% of all information is electronically created…estimated that within 2 years electronic evidence will replace paper as the primary source of discovery in commercial litigation.

so after five years of discussion and public comment the proposed amendments took effect on December 1, 2006…specifically changing language in six rules…Rule 16, 26, 33, 34, 37 and 45…with particular attention to electronic discovery issues…or “discovery of electronically stored information (ESI)”.

eDiscovery …obtaining information in electronic format allows

for the capture of metadata…Metadata is the electronic information that is often hidden in an electronic file…”smoking gun”?...perhaps…but the emails, office memos and other communications can also support the factual basis of your clients case.

Unique characteristics of

electronic data..

eDiscovery …most corporations and law firms continue to

struggle with the electronic component of discovery…continuing to only deal with the paper side and never seeing emails, etc….as this changes it will be very important for law firms to have the right tools for review and production of electronic information…and it will require the law firm to have a clear understanding as to the technical information flow within their client or opponents data systems…

eDiscovery Unique characteristics of electronic data..

informal nature…email = conversation…mostly unguarded remarks

preservation…electronic data is easily changed by simple routine tasks…a “hold” on electronic information requires a corporation to have a plan in place and to anticipate possible action

deletion…not necessarily…hitting the delete key only deletes the pointer to the file, not the file itself

eDiscovery Unique characteristics of electronic data..

storage locations…can be stored anywhere in the world..from local drives to mainframes thousands of miles away…to USB drives carried on a key chaindisorganized…seldom in specific locations…so over the years one person did it this way and another did it this way, etcvolume…10 employees, 30-60 emails per day = 300-600 emails = 60,000-120,000 per year….1,000 employees?…docs? Calendars? Spreadsheets?

eDiscovery Unique characteristics of electronic data..

redundancy…daily, weekly, monthly backup tapes…someone may think they have destroyed something, but it may live forever on backup archives of their company or the “to:” company

costs…edata is already searchable, sortable, and with the right software…manageable…vs paper?

accuracy…no degradation with the 20th file copy

alterations…perhaps impossible to detect in docs, pictures or audio

eDiscovery - the processFor paper discovery…

an attorney would visit their clients office and walk through to determine people, file cabinets, record centers, employee files, off-site storage and any other relevant place documents may be filed…typically , you can be comfortable that you have located all the documents that have been relevant to the discovery request.

eDiscovery - the processFor electronic discovery…

an attorney will need to walk through the computer infrastructure with their client…understanding where documents are created, stored, printed, backed up, exchanged, etc….in the relevant parties work computers, and personal computers…it will be the law firm and their clients duty to “know or reasonably know” that the electronic data is preserved and where. Attorneys will need to know technical terms to communicate with their client

eDiscovery - the processFor electronic discovery…

costs to locate, recover, review, and produce relevant information for a small corporation could be staggering…and it will be your job to find cost effective ways to handle this for your client and defend the results…

be proactive, help your clients understand the need for strong document retention policies and encourage the use of them

eDiscovery - electronic structureComputers – hardware storage

units of measure…bits and bytes

smallest unit of measure on a computer is a bit(0’s and 1’s)…a byte is about 8 bits

a Kilobyte(KB) is = to 1024 bytes

a megabyte(Mb) is = to 1,048,576 bytes

a gigabyte(Gb) is = to 1,073,741,824 bytes

a terabyte(Tb) is = to 1,099,511,627,776 bytes

a word processed test page is 2K or about 2,000 bytes

1 terabyte = 50,000,000 million pages

PerspectiveAverage Volume: 12GbGigabyte: 1,073,741,824 bytesSubtotal: 12,884,901,888 bytesPage size: 3000 bytesPages: 4,294,967Ream: 500 pagesReam height: 2”Total Height: 17,180”Total Height in feet: 1431’ 8”Sears Tower (Chicago): 1450’

eDiscovery - electronic structureComputers - software

Application Software – MS Office, databases, etc

Internet Software – browsers, listservs, chatrooms

Email – corporate, web(Yahoo), InstantMessenger

Operating Systems – Windows 95/98, 2000, XP, Linux, Apple OS, etc.

Audit Trails, Internet Service Providers

eDiscovery - electronic structureComputers – LANS, WANS and Internet

Local Area Network – contained within one office connected by wire or wireless…

Wide Area Network – multi office environment within the corporation

Off site – redundant disaster recovery system

data could be stored anywhere….

eDiscovery - electronic structureOther pieces…

PDA’s – IPhones, Blackberrys

Laptops

USB storage devices

Security systems

Telephone systems and voice mail

Cell phones

Digital Cameras

Copiers and Faxes…etc, etc, etc….

eDiscovery - requestsBe careful what you ask for…

you may get it…

And chances are the other side is going to ask for the same thing in many instances…

Are the courts savvy to all this?

For instance:

Zubulake v.UBS Warburg, 217 F.R.D. 309 (S.D.N.Y 2003)

A dispute involving employment discrimination allegations

Ultimately the court concluded that UBS

willfully deleted relevant emails…

The court granted an adverse inference instruction to the

jury…

The court also noted that

defense counsel was partly to blame because

they failed in its duty to locate, preserve and timely

produce the emails…

In April 2005, the jury awarded Ms. Zubulake

damages of

$29,000,000.00