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E-Discovery and Digital Evidence
Rutgers University, Newark School of Law
Hedges, Ronald J.

Hedges_E-Discovery_Spring_2013

I. INTRODUCTION TO ESI

A. Terminology

1) Bit: a binary digit; either 0 or 1

2) Byte: 8 bits

a) One word = 10 bytes

3) Kilobyte: 1,000 bytes

a) One typewritten page = 2 KB

4) Megabyte: 1,000,000 bytes

a) The complete works of Shakespeare = 5 MB

5) Gigabyte: 1,000,000,000 bytes

a) A floor of books = 50 GB

6) Terabyte: 1012 bytes

a) Library of Congress = 10 TB

B. Where to Look

1) RAM – Not considered storage under the federal rules

2) Slack Space

3) Systems Data

4) Residual Data

5) HDDs

6) PCs

7) Networked devices

a) Other computers

b) Printers

c) Fax machines

d) Network servers

8) Laptops

9) Removable media

10) Disaster recovery media

a) Tapes, hard drives, etc.

11) Third-party providers

a) Cloud backup services

12) GPS devices

13) Photocopiers

a) Copier Data Security: A Guide for Businesses (FTC: Nov. 2010)

i) Digital copiers are computers

(1) Copiers intended for business use typically have HDDs

(2) Stores data about the documents it copies, prints, scans, faxes or emails

ii) Before you acquire a copier:

(1) Include the copier in your information security policy managed by the IT staff

iii) When you buy or lease a copier:

(1) Encryption: scrambling the data with a secret code; cannot be read if HDD removed from machine

(2) Overwriting (file wiping or shredding): overwrites the existing data with random characters

(3) Lock HDD with passcode – protects the data even if HDD is removed from machine

iv) When you use the copier:

(1) Use all security features

(2) Overwrite once a month

(3) If no security features are available, place a note notifying users that the HDD must be destroyed before turn-in

v) When you finish using the copier:

(1) Contact the dealer for option on securing the HDD

(a) Merely removing the HDD can also remove the firmware required for the copier to operate

14) Smart phone images

Case: Smith v. Café Asia

Tools: A party may be required to preserve images on their smart phone and to allow a Δ to inspect images in order to allow a trial court to make a ruling on admissibility

Facts: Δ sought to be permitted to inspect and make copies of images stored on π’s cell phone

· To the extent the discovery sought is reasonably calculated to lead to the discovery of admissible evidence, it must nevertheless be balanced against plaintiff’s valid privacy concerns

15) Social media

16) Websites

17) Virtual environments

C. Why is ESI Different?

1) Non-Apparent Places to Look

a) See page 3

2) Voluminous and distributed

a) 93% of new information is now stored in digital form on magnetic media

b) McNulty v. Reddy Ice Holdings, Inc., 271 F.R.D. 569 (E.D. Mich. 2011)

i) Dispute over discovery of four terabytes or about 880 million pages

3) Fragile yet persistent

a) Can be easily corrupted but not easily deleted (permanently)

4) Capable of taking may forms

5) Contains non-apparent information

a) Metadata

i) Document properties

ii) Hidden track changes edits

6) Created and maintained in complex systems

D. What the Future may Bring

E. Big Data

1) The once and future of data

a) 2.5 quinbillion bytes of data is created every day

b) 90% of the world’s data has been created in the past two years

2) Big data spans four dimensions:

a) Volume

i) Enterprises are awash with ever-growing data of all types, easily amassing terabytes—even petabytes—of information.

b) Velocity

i) For time-sensitive processes such as catching fraud, big data must be used as it streams into your enterprise in order to maximize its value

c) Variety

i) Big data is any type of data – structured and unstructured data such as text, sensor data, audio, video, click streams, log files and more.

d) Veracity

i) Establishing trust in big data presents a huge challenge as the variety and number of sources grows.

F. Impact of ESI on Organizations

II. The Essential Case Law

1) The Zubulake Series:

Case: Zubulake v. UBS Warburg LLC (Zubalake I), 217 F.R.D. 309 (S.D.N.Y. 2003)

Tools:

· There is a distinction between accessible and inaccessible ESI

o Accessible àmust be produced

o Inaccessibleàcost shifting analysis

Facts: Discrimination case. Π moved to compel production of e-mails. By the time the suit was underway, the e-mails had been moved to backup drives. Some backup drives had been destroyed.

· Cost-Shifting Factors:

o Narrowly tailored

o Availability from other sources

o Costs

§ Relative to amount in controversy

§ Relative to party’s resources

§ Relative ability and incentive for each party to control its own costs

o Importance of the issue for the litigation

o Relative benefits to the parties in obtaining those data

Case: Zubulake v. UBS Warburg LLC (Zubulake III), 216 F.R.D. 280 (S.D.N.Y. 2003)

Tools: Attorney review costs may not be shifted, only production costs are available for shifting

Facts: π moved to compel Δ to produce all remaining backup e-mails

red on its property and that same Δ has a video camera that may have recorded the accident or incident, that Δ has a duty to obtain and preserve a copy of any relevant information recorded by that camera if a written request to do so has been made by the injured party or their representative prior to the point at which the information is lost or destroyed in the normal course of the Δ’s video operations.

· The court asked the legislature to address the issue

3) New Jersey

a) No meet and confer requirement

b) No early disclosure requirement

B. What the Federal Courts are Doing

1) Shades of the Civil Justice Reform Act of 1990 and the “balkanization” (fragmentation) of the Rules

a) Various pilot projects and local initiatives:

i) Model Order Regarding E-Discovery in Patent Cases (Federal Circuit)

(1) Rogue Satellite Comics v. Dreamworks Order:

(a) Absent good cause, general ESI production shall not include metadata other than author and recipients

(b) TIFF images are preferred format

(c) No OCR required

(d) Footer with production number required

(e) Party may request native

(f) No backup restoration is required absent good cause

(g) Voicemail and mobile phones = not reasonably accessible

(h) E-mail must be specifically requested and is not part of general production

(i) E-mail production requests limited to 10 search terms

(j) No waiver if inadvertent disclosure of privileged documents

ii) Northern District of California E-Discovery Guidelines

(1) Purpose: encourage reasonable electronic discovery with the goal of limiting the cost, burden and time spent, while ensuring that information subject to discovery is preserved and produced to allow for fair adjudication of the merits

(2) Cooperation: emphasizes the particular importance of cooperative exchanges of information at the earliest possible stage of discovery

(3) Discovery Proportionality: To assure reasonableness and proportionality in discovery, parties should consider factors that include the burden or expense of the proposed discovery compared to its likely benefit, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in adjudicating the merits of the case.