As discussed in a recent post, there exists a dichotomy between the New York state and federal courts with respect to which party should bear the cost of producing inaccessible data
Additional coverage of this case can be found here:
article5.pdf (application/pdf Object).
Jonathan D. Frieden and Leigh M. Murray, The Admissibility of Electronic Evidence Under the Federal Rules of Evidence, XVII Rich. J.L. & Tech. 5 (2011), http://jolt.richmond.edu/v17i2/article5.pdf.
…considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted.1
This paper drives home the point that how you start your case will determine how it ends.
Plaintiffs argue that Defendants’ refusal to search and produce their archived hard-copy materials and ESI for the years prior to 2004 has resulted in large gaps in document production.
via Brokaw v. DAVOL, INC., RI: Superior Court 2011 – Google Scholar.
Common definition: the investigation of any kind of computing or digital device.
Manage-in-Place provides organizations with complete information governance while leaving the document on the source file system. This module allows our clients to search and analyze petabytes of data on disparate file servers without the need to archive that data. Our client can now use this module to search for and analyze their data at the touch of a button and to perform true early case assessment before a lawsuit has been filed or discovery requests served.
Once the documents have been searched for, analyzed and found to be potentially relevant, our new Automatic Document Collection module copies the files (with metadata intact of course) into the archive. The client does not need to ask for the IT Department’s help or hire an expensive eDiscovery vendor to perform a manual collection – now it is all automatic. And because the data is preserved for litigation so quickly there is little chance of a spoliation sanction.
Key Learning Point is that the automated collection feature in software today is increasing in popularity as legal teams and corporations look for ways to manage a defensible process.
For more on this topic look here
Identification Workflow Chart
Aim: To identify subject matter experts, resources involved, potential sources of data; to determine the depth and breadth of potential liability; to aggregate information sources for developing course of action.
Goal: Evaluate, leverage and mitigate.
via Identification Guide « The Electronic Discovery Reference Model.
This article provides a thorough overview of the current discussion and research on social media’s impact on electronic discovery.
Key Learning Points Include:
On the issue of self-collection, when the Court says not to “rely on a defendant to search their own e-mail system” and “we don’t rely on people who are defendants to decide what documents are responsive,” I believe the Court refers specifically to the practice of a client acting as document reviewer and sole arbiter of responsiveness. That is well understood to be a bad practice, so there is nothing shocking about this pronouncement.
via Self-Collection Prohibited in Delaware : Delaware eDiscovery Report.
E-Discovery project management thought leaders suggest that at a bare minimum ESI collection is completed with meaningful supervision.
Another recent blog post discusses why self-collection is increasingly not a best e-discovery management practice.
Update: one more blogger reviews a case regarding the dangers of self-collection here
PART 1
This month’s column begins a series on understanding e-mail that’s geared to the not-too-technical reader. My goal is to instill the “e-mail is a database” mindset that will help you meet the challenges of collecting, searching, reviewing and producing e-mail in electronic discovery.
via Traffic Jam.
This is an article by Craig Ball for Law Technology News.
PART 2 can be found here. Did you know that an e-mail message is a “report?”
It’s generated by an invisible query and built of select fields of information culled from a complex dataset, then presented to you in an arrangement determined by your e-mail client’s capabilities and user settings.
Gibson Dunn – 2010 Mid-Year Electronic Discovery and Information Law Update.
Law firm report reviews e-discovery trends for the first half of 2010.
Topics addressed include:
Update: Whenever a major report like this one is published, you can expect many industry experts & service providers to offer their observations and interpretations. This can be extremely valuable beyond reviewing the raw data of the report as information is translated into key trends, best practices and practical ideas for improving your e-discovery process.
The e-Discovery Team / Ralph Losey
I’m sure I’ll add a few more over the next few weeks …
