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.

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

CyberControls

Courts Unsympathetic to E-Discovery Ignorance

In a recently released analysis of this year’s judicial opinions on electronic discovery issues by Kroll Ontrack®, the dominant topics reoccurring in the 2008 judicial opinions were the importance of creating and enforcing sound document retention policies, the use of proper search terms for production, and the consequences when parties fail to properly comply with discovery requests. Of the approximately 138 reported electronic discovery opinions issued from Jan. 1, 2008 to Oct. 31, 2008, over half addressed court-ordered sanctions, data production, and preservation and spoliation issues. The breakdown of the major issues involved in these cases is as follows:

• 25% of cases addressed sanctions
• 20% of cases addressed various production considerations
• 13% of cases addressed preservation and spoliation issues
• 12% of cases addressed computer forensics protocols and experts
• 11% of cases addressed discoverability and admissibility issues
• 7% of cases addressed privilege considerations and waivers
• 7% of cases addressed various procedural issues
• 6% of cases addressed cost considerations

“It is clear that courts are no longer allowing parties to plead ignorance when it comes to ESI best practices,” said Michele Lange, director of Legal Technologies for Kroll Ontrack®. “These cases exemplify that judges can and will hand out sanctions for mishandling ESI and lack of document retention policies. Having a well-crafted document retention policy, ensuring cooperation between legal and IT departments, and partnering with an e-discovery expert can help prevent the same mishaps described in these cases, ultimately saving organizations hundreds of thousands in sanctions and reputation damages.”

The top five most significant cases from 2008 that summarized these issues included:

Court Imposes Sanctions for “Egregious” E-Discovery Misconduct

Keithley v. Homestore.com, Inc., 2008 WL 3833384 (N.D.Cal. Aug. 12, 2008).

In this patent infringement litigation, the defendants’ failure to issue a written document retention policy well after its preservation duty arose led the court to label the discovery misconduct “among the most egregious this court has seen.” The court ordered the defendants to pay over $250,000 in fees and costs associated with prior and future motion practice and expert fees, deferring additional amounts until actual fees can be determined, while also imposing an adverse jury instruction against the defendants.

Court Orders Forensic Examination and Denies Cost Shifting, Citing Producing Party’s Discovery Misconduct

Peskoff v. Faber, 2008 WL 2649506 (D.D.C. July 7, 2008).

In this ongoing contract dispute, the court followed up on its previous holding that it was appropriate to ascertain the cost of a forensic examination to determine if the cost was justified. The court found the defendant’s inadequate search efforts, failure to preserve electronically stored information and overall unwillingness to take “discovery obligations seriously” caused the need for a forensic examination. Since the problem was one of the defendant’s “own making,” the court refused to shift costs.

Court Orders Production of Text Messages

Flagg v. City of Detroit, 2008 WL 3895470 (E.D.Mich. Aug. 22, 2008).

In this ongoing wrongful death action, the defendants argued the court’s previous order that established a protocol for the production of text messages violated Stored Communications Act. The court was willing to modify the means of production and ordered the plaintiff to file a Fed.R.Civ.P. 34 production request, finding a third-party subpoena unnecessary. See also Flagg v. City of Detroit, 2008 WL 787061 (E.D.Mich. Mar. 20, 2008).

Magistrate Orders Parties to Cooperate in Production and Advised Expert Testimony May be Needed for Judicial Review of Search Methods

United States v. O’Keefe, 2008 WL 449729 (D.D.C. Feb. 18, 2008).

In this criminal prosecution, the co-defendant filed a motion to compel claiming the government did not fulfill discovery obligations. Applying the Federal Rules of Civil Procedure to this criminal action, Magistrate Judge John M. Facciola ordered the parties to participate in a good faith attempt to reach an agreement on production. The court also suggested that judicial review of search methods may require expert testimony, since for lawyers and judges to make search term effectiveness judgments are to go “where angels fear to tread.” See also United States v. O’Keefe, 2008 WL 3850658 (D.D.C. Aug. 19, 2008).

Court Denies Motion to Retract Privileged Documents Finding Lack of Reasonable Precautions Taken

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008).

In this copyright infringement case, the plaintiff sought a ruling that 165 electronic attorney-client privileged and work-product protected documents produced in discovery were discoverable. Determining the defendants did not take reasonable precautions by relying on an insufficient keyword search to prevent inadvertent disclosure, the court found the defendants waived their privilege. The court noted several measures could have helped prevent this waiver, including a clawback (or other non-waiver) agreement the defendants voluntarily abandoned and/or complying with the Sedona Conference Best Practices for use of search and information retrieval.

CyberControls is made up of 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. To discuss a specific issue you may be facing as a respondent or requesting party in a commercial litigation matter call us at 847-756-4890 or visit www.cybercontrols.net.

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Contrary to the old phrase, “…be careful of what you ask for you just might get it”, commercial litigators need to be alert to the fact that electronically stored information (ESI) encompasses far more than just e-mails, documents, photos and instant messages. The problem for a requesting party is that a producing party, unless otherwise directed, will only concern itself with identifying, collecting, reviewing and ultimately producing readily accessible “active” files. The yield from this routine approach may not be even close to a full representation of the full extent of the available ESI that relates to the case and the actions of persons of interest while they used the computers in their custody. Computer forensic examiners refer this lesser known category of useful ESI as computer artifacts.

Short of a full computer forensic examination, a requesting party may want to consider including in their initial e-discovery production requests that a number of computer artifacts be included with the

responding party’s production. These artifacts may include:

1. Each computer’s Windows registry history to include all installed software, and external hardware devices connected to each computer of interest.
2. Each computer’s Master File Table (MFT), which will clearly identify the complete file structure including distinct folders on each computer for future reference.
3. Each computer’s Internet History Files, which will disclose the Internet activities of each computer custodian.
4. Produce all link files (.lnk) from each custodian’s computer, which may show the usage of relevant files that are stored on external storage devices.

This approach has the potential of avoiding a full fledged fight that a computer forensic examination request would surely foster. But, a reasonable request for some of the items listed above would help to eliminate concerns and suspicions that relevant ESI was being withheld. The Windows registry would help establish whether any scrubbing software might have been installed on a particular computer or not.

It also would help identify if any external media devices were connected to the computer-if so, did the producing party conduct their e-discovery on all of those devices for relevant ESI or not?

The Master File Table of each computer will provide a complete road map of the user’s file structure and the folders in which data files were stored. If the Internet activities of certain persons of interest are rerevant, these activity files may prove to be crucial to the requesting party.

Finally, the link files (.lnk) are often the most irrefutable means in which to determine the date and time when specific data files were last accessed and/or modified by the user of a computer whether those files were located locally on the computer or on a network’s file server.

CyberControls has dubbed this added element to the e-discovery production request as the “Computer Artifacts Report.” It’s important to note that a producing party is obligated to take the necessary precautions when collecting these computer artifacts not to modify, alter or corrupt the data itself. An e-discovery or computer forensics specialist can provide the necessary instructions and/or support for this.

Computer artifacts can also prove to be quite helpful to a responding party when counsel is searching for additional elements to help bolster aspects of a case where the production of documents or e-mails is insufficient. Such artifacts can also help to stead off a more intrusive and costly computer forensic examination initiated by the requesting party.

CyberControls is made up of experienced specialists in electronic discovery, They can be reached at 847-756-4890 or on the web at www.cybercontrols.net.

Cybercontrols

Drive-By Rule 16 Conferences

Over the past year, CyberControls has shared its perspective on the importance for all commercial litigators to develop a heightened awareness and mastery in preparing for the inevitable challenges associated with electronically stored information (ESI) in their cases. Whether you represent the producing party or requesting party, the vast majority of e-discovery related disasters are easily traced back to inadequate pretrial planning, preparation and effective communication with the client and opposition.

With so much being written about the 2006 amendments to the Federal Rules of Civil Procedure in the past eighteen months, is it any wonder why the level of e-discovery disputes in courts is on the rise? In the June issue, Law.com posted an article “E-Discovery From The Bench,” by Jason Krause, which is a well researched collection of comments from a wide array of jurists weighing in on all aspects of electronic discovery, such as:

“You see a lot of wasted opportunities in many cases coming out of the Rule 26 meet and confer and the Rule 16 conference with the court,” says Judge Lee H. Rosenthal of the U. S. District Court for the Southern District of Texas. “In many cases lawyers treat the Rule 26 conference like a drive-by conference and there is no meaningful attempt to address these issues.”

Mr. Krause’s article goes on with . . . Judges say the No. 1 problem is that lawyers come to the Rule 16 meeting without having learned anything about the electronic records that will be in dispute in many cases. “You can’t come to the judge and just say ‘I don’t know.’ The fact is you need to know what you don’t know,” says Chief Magistrate Judge Paul Grimm of the U.S. District Court for Maryland. “But more than that, you have to know what is reasonable to ask for. You can’t come to the judge and ask for everything and a pony.”

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.

CyberControls welcomes the opportunity to discuss any specific issues that you may be facing as a respondent or requesting party in a commercial litigation matter at 847-756-4890 or visit our cyber site at www.cybercontrols.net.

Tags: e-discovery,electronic discovery,cybercontrols,computer,forensic,FRCP,Rule 16,Federal Rules of Evidence

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As state and the federal courts continue to weigh in on the infinite possibilities surrounding electronic discovery, the universe of electronically stored information (ESI) demands to be defined. A producing party’s duty to preserve relevant evidence is not the issue. The confusion comes from what types of ESI do these preservation obligations refer to? From a requesting party’s perspective, is there any doubt that relevant evidence pertaining to their case may well go beyond the boundaries of certain documents and e-mail communications? As you read through the recent preservation of evidence order below, you will see just how extensive the universe of ESI preservation can be.

United States District Court, N.D. California, Oakland Division.

In re FLASH MEMORY ANTITRUST LITIGATION.

No. C-07-00086-SBA. April 22, 2008.

Joseph Cotchett, Steven Williams, Cotchett, Pitre & McCarthy, Burlingame, CA, for the Indirect Purchaser Plaintiffs.

ORDER REGARDING PRESERVATION OF EVIDENCE: SAUNDRA B. ARMSTRONG, District Judge

*1 IT IS HEREBY ORDERED THAT:

All parties and their counsel are reminded of their duty to preserve evidence that may be relevant to this action. The duty extends to documents, data, and tangible things in the possession, custody and control of the parties to this action, and any employees, agents, contractors, carriers, bailees, or other non-parties who possess materials reasonably anticipated to be subject to discovery in this action. “Documents, data, and tangible things” shall be interpreted broadly to include writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes, electronic messages, voice mail, E-mail, telephone message records or logs, computer and network activity logs, hard drives, backup data, removable computer storage media such as tapes, discs and cards, printouts, document image files, Web pages, databases, spreadsheets, software, books, ledgers, journals, orders, invoices, bills, vouchers, check statements, worksheets, summaries, compilations, computations, charts, diagrams, graphic presentations, drawings, films, charts, digital or chemical process photographs, video, phonographic, tape or digital recordings or transcripts thereof, drafts, jottings and notes, studies or drafts of studies or other similar such material. Information that serves to identify, locate, or link such material, such as file inventories, file folders, indices, and metadata, is also included in this definition. Until the parties reach an agreement on a preservation plan or the Court orders otherwise, each party shall take reasonable steps to preserve all documents, data, and tangible things containing information potentially relevant to the subject mater of this litigation. In addition, counsel shall exercise all reasonable efforts to identify and notify parties and non-parties of their duties, including employees of corporate or institutional parties, to the extent required by the Federal Rules of Civil Procedure. *Slip Copy, 2008 WL 1831668 (N.D.Cal.)

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. Call 847-756-4890 or visit www.cybercontrols.net.

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.