practicehacker

This month’s installment from Cybercontrols is about the E-Discovery Pilot Program run by the 7th Circuit Court of Appeals.  The Pilot runs from Oct. 1 ‘09 to May 1 ‘10 and is intended to motivate informational exchanges between counsel relating to electronically stored information (ESI) through a proposed standing order that select district judges, magistrates, and bankruptcy judges in the Seventh Circuit have already agreed to use. The principals set out in the proposed order go beyond the 2006 ESI amendements to the Federal Rules of Civil Procedure to include subjects such as

Zealous Representation. Principle 1.02 specifically addresses the zealous representation excuse for obstructionist behavior – the principles state that “An attorney’s zealous representation of a client is NOT compromised by conducting discovery in a cooperative manner.” (Emphasis added)

Proportionality. Principle 1.03 calls attention to Fed. R. Civ. P. 26(b)(2)(C), which permits objections to discovery requests where the burden or expense outweighs its likely benefit considering such things as the resources of the parties and the amount in controversy.

Meet and Confers. Principle 2.01 specifically references Fed. R. Evid. 502. If the pilot project can find a way to minimize the amount of attorney time spent in pre-production privilege reviews it would have made a huge contribution to achieving the overall goal of securing the “just, speedy, and inexpensive determination of every action.”

E-Discovery Liaison. Principle 2.02 contemplates the appointment of an e-discovery liaison for the purpose of meeting, conferring or attending court hearings on e-discovery issues. The liaison may be an attorney but can also be a third party consultant or an employee of the party. The liaison needs to know or have access to the people who are familiar with a party’s electronic systems and capabilities, as well as the technical aspects of e-discovery

Preservation. Principle 2.03 explicitly disfavors broad requests for preservation and encourages the exchange of specific information to help determine appropriately specific preservation agreements.

Scope of Preservation. Principle 2.04 covers the scope of preservation. 2.04(b) requires a party seeking information regarding the other party’s preservation and collection efforts to confer with the other party before initiating such discovery. 2.04(d) enumerates types of information that would NOT ordinarily be preserved, e.g. deleted, slack, fragmented or unallocated data.

Identification of ESI. Principle 2.05 encourages parties to discuss such things as treatment for duplicative ESI, filtering based on file type, date ranges, etc, and use of keyword searching, topic or concept clustering or other advanced culling technologies.

Production Format. Principle 2.06 states that ESI and other tangible or hard copy documents that are not text-searchable need not be made text searchable, meaning, evidently, that scanned paper documents would not need to be OCR’d.

Education. Principle 3.01 states a judicial expectation that counsel will be familiar with the Federal Rules of Civil Procedure governing electronic discovery. Considering that the ESI rules have been in effect for three years as of December 1, 2009, and they were much publicized prior to their adoption, that hardly seems unreasonable or overreaching.

Seventh Circuit E-Discovery Pilot Program: 7th Circuit E-Discovery Program

CyberControls E-Discovery Request Considerations: E-Discovery Request Considerations

CyberControls specializes in electronic discovery and production, computer forensics, and integration of computer technology in civil litigation. Visit www.cybercontrols.net.

Yesterday Facebook, the application that convinced a generation of soccer moms it was okay to post semi-candid pictures of themselves no matter how disturbing, bought Friendfeed, the best social application you’ve never heard of.  When I read the news I wept. No, seriously. I wept at the end of an era.

Freiendfeed makes me feel smart. Facebook makes me feel like I need a shower. Friendfeed brings out the best in users. It promotes discussions about cutting-edge topics and insights. Facebook brings out the worst in users  – many of them highly placed people who should know better – by soliciting the mundane and celebrating the average. See the difference?

I hope Facebook leaves Friendfeed alone, but I have no illusions. As it stands I’m positive that hordes of Facebook users will thunder into Friendfeed, choke it with pointless chatter, and leave it a disaster area when they move on a few weeks later.

If you find something online that’s worth keeping I hope you feel a little sad when it gets “discovered” and you know it’s about to lose its special character. That’s how you know it was worthwhile in the first place.

Legal Blog Watch wants to know ...

… Should You Work as a Paralegal, Legal Secretary, or Librarian?

With associate positions hard to come by, new graduates — desperate to find a paying job in the legal profession — are applying for work as paralegals, legal secretaries and law librarians, according to Long Island Business News. The story sites one new grad, Jessica Sparacino, who secured a job as a paralegal at Jackson Lewis, but that was only because she’d been working in that position through law school. For the most part, law firms and other employers aren’t willing to hire JDs for non-lawyer positions. [Read the article]

We're the ABA Damnit! We own you!

This was my 10th year at ABA Technology Show in Chicago. This year was particularly cool.  Here’s why:

Meeting The Heavies: To me, seeing people like Dennis Kennedy, Tom Mighelle, Bob Ambrogi, Jim Calloway, Kevin O’Keefe, Brett Burney, Andy Atkins, Jay Foonberg (!) and the rest of my pretend blog friends … I mean pretend LinkedIn friends … is like reconnecting with long lost relatives. Exciting and a little intimidating. But all of them were really great and down to earth. Except that Kennedy. Such a prima donna. I kid, I kid.

Meeting Canadians: Who can forget meeting the Great Librarian of Upper Canada! Beat that. Then there was Phil of the Future (my name for him), Steve Matthews (nice guy), Brett Burney (I think he’s Canadian), Dominic Jaar (vive la Quebec libre!), the boys from Clio (or as I called them, the Booth Babes), and a host of other talent from the Great White North. It was great to meet you all: now go back where the ice doesn’t melt until July.

Technology Becoming Accepted: This year for the first time in memory I noticed a preponderance of grey hairs and the careful gait of partners scoping out potential buys for their offices.  This was not the brash, flash-in-the-pan TechShow of the late-90’s in which the Internet was decried as a fad.

SaaS, Saas, and more Saas: Software as a service was all over the place, and by next year it will be pervasive. This year I was knocked out by the number and variety of kick-ass SaaS providers at the show including Clio, RocketMatter, and VLO Tech. Clio was my hands-down favorite for a number of reasons – I intend to use it in my own practice. Whatever your cup of tea, the idea of throwing away the IT department in favor of the Cloud is gaining traction fast.

Less is … Less: One lamentable fact about this  year’s show – there was less of it than I’ve seen in a long time. Another casualty of the economy I’d say, but we shouldn’t overlook the fact that many legal technology vendors have been slaves to profit instead of boosters for innovation and the slow economy is making it painfully apparent what a royal screw job they’ve been giving lawyers all these years. Many players couldn’t make it ? Good riddance to bad company.

Other than that however, it was a great experience as always and one that I heartily recommend to one and all. If you haven’t been to TechShow, go there. If you have, come back. A splendid time is guaranteed for all.

For more coverage see my SmallLaw Column in TechnoLawyer.

Check out Twitter coverage of TechShow.

As always, I’d love your thoughts. E-mail me at mhedayat[at]mha-law.com or tweet me @practichacker.

ttyl

AI – Advanced IT/Security
CR – Client Relationships
ED – E-Discovery
GG Going Green
IN – Internet
LF – Large Firm / Corporate Counsel
LT – Litigation
MA – Mac Track
MO – Microsoft Office
MT – Mobile Technology
PO – Paperless Office
RM – Records Management
RT – Roundtables
SSI – Solo / Small Firm I
SSII – Solo / Small Firm II
SM – Show Me How

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Cybercontrols, LLC

FRCP Rule 34 provides that the requesting party can "inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control … any designated documents or electronically stored information – including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations – stored in any medium from which information can be obtained …".

Generally, the producing party will provide disclosure of responsive data to the requesting party’s ESI production request by physically transferring the data by CD-ROM, DVD, or other storage media. However, amended FED. R.CIV. P. 34 allows testing, sampling, or in some instances for entry onto the property of an adverse party for the purpose of inspecting the property. Depending on the circumstances, Rule 34 has been interpreted to permit an inspection of an individual or corporate computer system by performing searches on computer data or by creating a forensic or "bitstream" image copy of the storage media for later analysis. Under certain circumstances direct seizure of a computer is permitted.

FED. R. CIV.P.45 authorizes similar options for the inspection of ESI of a nonparty.

One of the most fundamental issues about electronic discovery is how a court should respond to requests for electronic materials that have been "deleted." Courts consistently have held that discoverable ESI includes files that have been "deleted". Courts consistently have held that discoverable ESI includes "deleted" files. If restored, this information could be invaluable for exposing patterns of conduct, behavior or motives surrounding its deletion. However, it usually is necessary to present evidence of the relevance and "specific facts" justifying a request for the "deleted" data or the courts may label the request a "fishing expedition".

Forensic images of a hard drive or other storage media can be created to preserve the data for later searching and analysis. The images can then be searched for deleted or altered files, unauthorized copies of software, or other artifacts.

It is normal to allow a party and/or their expert to be present during the imaging process.

Generally, courts hesitate to grant the requesting party on-site access to conduct the actual search because of the risk that data may be inadvertently altered. If access is permitted to the computer system, the producing party’s IT staff or a neutral third party such as a forensic expert is usually retained to perform the necessary computer tasks.

While a sizeable portion of a computer inspection may include conducting a keyword search to locate relevant documents and e-mails, a computer forensic examination of computer hard drives and other storage media has the potential of uncovering a vast amount of lesser known electronic "facts" pertaining to the case that would otherwise never surface. For examples of these ESI artifacts and how they might contribute to a case matter, click on the "Beyond the Smoking Gun" link below.

CyberControls is not a law firm. We are experienced specialists in the in the field of electronic discovery and production, computer forensics and the integration of computer technology and the rules of discovery. Our professional services teams are comprised of pretrial litigation consultants and field technicians and forensic experts. CyberControls’ expertise in computer forensics and investigative experience has proven to be an invaluable resource to hundreds of legal professionals across the country. Visit CyberControls at www.cybercontrols.net.

LITIGATION HOLD DIRECTIVES ISSUED BY COUNSEL TO CLIENTS

Generally speaking litigation hold directives issued to Clients are protected from discovery as work product or attorney-client privilege. But there are exceptions …

The Courts have held that litigation hold directives issued by counsel to their clients are protected as privileged communications or work product. Gibson v. Ford Motor Co., No. 06-1237, 2007 U.S. Dist. LEXIS 226, at *19-20 (D. Ga. Jan.4, 2007); Rambus, Inc. v. Infineon Technologies AG, 220 F.R.D. 264 (E.D. Va.2004).

With so much attention on electronically stored information (ESI) in the discovery stage of civil litigation, a requesting party often times feels compelled to request a copy of all written directives issued by an attorney to their client when it comes to implementing the litigation hold of all relevant ESI, or to establish if such directives even were issued. This approach however, has been proven to be ineffective in court.

Behind this thin veneer of inquiry however, is a significant issue that if approached from another direction will successfully get to the heart of the matter. A number of critical questions need to be addressed when formulating a strategy to get the answers to issues that are connected with electronic evidence:

1. At what precise date did the client actually implement a litigation hold on all sources of ESI?

2. What reasoning was used to identify and inventory the specific electronic systems that would be subject to the litigation hold?

3. What if any prior existing litigation hold was in effect at the time of this new imminent civil case that involved some of the same systems or ESI?

4. What specific policies and procedures were already established to implement an effective litigation hold on electronic systems and all ESI pertaining to a civil lawsuit if any?

5. What are the names of the specific individuals who are assigned with litigation hold related responsibilities within the organization?

6. What are the reporting procedures within the organization to supervise all litigation hold activities throughout the duration of a case?

7. What if any operational constraints exist in the implementation of a litigation hold situation?

8. What specific procedures are implemented with any third-parties who have access to or responsibilities to service, maintain, program or otherwise interact with systems or ESI that has been identified to be subject to a litigation hold?

While it may be important to learn whether or not a producing partys counsel provided sufficient advice to their client to implement an effective litigation hold, ultimately it will all flush out once the answers to questions like those listed above are collected. Attorneys will soon learn that a form letter to their corporate clients advising to implement generic litigation hold procedures is insufficient to safeguard the client or themselves from spoliation accusations.

At CyberControls, our team of pretrial litigation consultants work at assisting commercial litigators in identifying effective avenues of inquiry to identify areas of inadequate litigation hold practices for a requesting party as well as providing recommendations to implement a rock solid litigation hold for commercial clients to be in compliance with their preservation obligations.

CyberControls, LLC is a computer forensics and e-discovery firm that provides pretrial consultancy support and conducts searches and examinations of electronically stored information for commercial litigation matters. Contact them by calling 847-756-4890 or visiting them online at www.cybercontrols.net.

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