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E-Discovery and Digital Evidence
St. Johns University School of Law
Grande, Ignatius A.

E-Discovery

Professor Ignatius

Fall 2013

I. Introduction to Electronic Discovery; Overview of 2006 Amendments, New Proposed Amendments and key issues concerning e-discovery

A. Federal Discovery Rules (pages 18-39)

1. Rule 16

2. Rule 26

3. Rule 30

4. Rule 33

5. Rule 34

6. Rule 37

7. Rule 45

B. Effect of Electronic Information on Discovery Practice (page 40)

1. Explosion of Information and Increased Sources of Information

· Explosion of Information

o Types of ESI

§ Custodian-Based

· Who controls creation, content,storage & disposition

§ Enterprise-Based

§ Organization-Specific

o Internet/ Intranet/

o Extranet

o Social Media

o Application Data

o Personal Devices

o Messaging Systems

C. Sedona E-Discovery and Information Management Glossary (p. 893)

D. Class Slides

1. ABA Amendment to Comment 6 to Model Rule 1.1 (8/6/12)

· ABA Commission on Ethics 20/20 Report (5/8/12) noted that amending comment to incorporate the noted that amending comment to incorporate the phrase “including the benefits and risks associated with relevant technology” was critical given the “growing importance of technology to modern law practice.”

o [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

2. Electronic Documents are Complex

· Many types

· Huge volume

· Dynamic

· Hidden data and metadata

· Easily alterable

3. Volume of ESI

· Volumes of electronic documents in organizations are ever growing

· 2009 Report from IDC predicts that the digital universe will be 44 times larger in 2020 than it was at the time.

· Electronic documents are scattered across e-mail, enterprise content management (ECM), enterprise resource planning (ECP), and various database and data storage systems

4. Social Media is here to Stay

· 87%of Fortune Global 100 companies used some form of social media in 2012

· 73% of Fortune 500 Companies have an active Twitter account

· More communications now occur via social networking sites than email

· By the end of 2013, half of all companies will have been asked to produce material from social media websites for e-discovery

5. Flow of E-Discovery in a Litigation or Investigation

· Litigation Hold

iew and Analysis of ESI

· Can reduce quantity of ESI by applying specific criteria. May be done before or after collection as well as before or after processing of data

· Parties may agree to specific filters to reduce the quantities of documents requiring review

· May utilize many types of filters such as keyword searching, date culling, file-type culling, etc.

· Utilize other methods of Early Case Assessment

· Predictive Coding/Technology Assisted Review

11. 2006 FRCP eDiscovery Amendments

· Rule 16 – Pretrial Conferences

· Rule 26 – Duty to Disclose

o Discovery Scope & Limits

o Protective Orders

o ** 26(f) Meet and Confer Conference

o Signing Discovery documents

· Rule 30 – Depositions

· Rule 33 – Interrogatories

· Rule 34 – Producing Documents, Electronically Stored Information (ESI)

· Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

o 37(e) – Court may not impose sanctions for failing to provide ESI lost as a result of the routine, good faith operation of an electronic information system.

· Rule 45 – Subpoenas