Introduction to Civil E-Discovery & History of the Rules
E-Discovery, also known as Electronically Stored Information (ESI), Electronic Data Discovery (EDD), E-Docs, Native Files, Electronic Files, Electronic Documents, Electronic Evidence.
Computer files in litigation – electronic “documents” and associated metadata.
Why E-Discovery Matters to Civil Suits
93% of ESI never printed to paper
7% of all information is in paper form
If you do not produce or request ESI, you are missing 80-80% of potential evidence
May be malpractice not to request this information
Failure to understand E-Discovery has resulted in substantial sanctions
E-Discovery issues are increasingly becoming outcome determinative
Why E-Discovery Matters to Criminal Suits
Civil E-Discovery case law is shaping Criminal Practice
Common E-Discovery Issues
Locating Relevant/Responsive ESI
Authenticating and Admitting ESI
Records are constantly evolving
Records have always been in revolution, and that’s not a new concept. It’s actually a common theme throughout history.
The earliest business records were permanent, single copies. They were hard to create, hard to duplicate. Only the most important information was recorded.
Over time, we invented new ways to create records. Inventions such as the typewriter, were intended to improve efficiency and collaboration. Invented better ways to make copies.
The purpose of successive advances in technology was to make records easier to produce and more readily available for business use.
The Computer Revolution
Early computers were big. They weren’t considered to be a factor in practical, everyday, business records management.
PCs – personal computers. Offered amazing potential for communication and sharing information. Their purpose was to make paper records easier to generate.
Over time, better, smaller, faster computers were developed. Operating systems and software became more stable and more powerful.
Data storage devices got bigger and cheaper. Eventually, computers became the tool of choice for both generating AND storing business records.
By the mid-1990s, before most people even realized it, the transition from paper to data was well underway.
The net result of the computer revolution – as it relates to the law – is E-Discovery
Amendments to FRCP
Effective December 1, 2006 (new amendments took effect December 2015)
Apply in all federal civil suits
Electronically Stored Information is evidence
E-Discovery Principles May Apply
Civil lawsuits (state and federal)
ESI is Broadly Defined
All electronically stored information
Voice mail messages (cell or office)
Test messages, instant messages
Access logs, surveillance tape
Digital images/ .wav files
Active online, nearline, offline, archive, backup
Office and home (individual employees)
ESI Initial Focus
What to look for:
E-mail and attachments
Business documents (word processing, spreadsheets, powerpoints)
Databases (financial, document management, human resources)
Text messages and phone logs (cell phones)
Where to look
PC/laptop hard drives (office and home)
Portable media (floppies, CDs, DVDs, flash drives, external hard drives)
Servers (file and print, e-mail, databases)
Third party contractors
Know the sources of eDocs.
Some examples include:
Email and attachments
is used by computers to organize and categorize files. For example, its used to tell the computer which program to use to open a particular file. Some of it’s used by the operating system to retrieve files – like filename. And some is used by applications or users to describe files. Most metadata is stable, but some is fragile and can be changed by simply opening a file. You might be surprised, but metadata is not a new concept. A perfect example is the library card catalogue. It contains information about the location of a book, the title, the author, the date of publication, the number of pages, etc. In a similar manner, metadata is used by a computer to organize it’s library or documents. Our goal is to – very carefully – extract and use that information to aid in review and analysis of electronic files.
E-docs are like Containers.
Electronic files are not just digital pieces of paper. They’re like containers. Note that none of this information is available on a printed document. It’s hidden. Its stored WITH the file. And some of it is stored IN the file. But it’s all relatively easy to access with the right tools.
Assists with computer search
Used to de-duplicated (MD Hash)
May contain important information
Can be confusing
Must be reviewed (along with document’s content)
Discoverable, if relevant
“Today, it is black letter law that computerized data is discoverable if relevant.” Anti-Monopoly, Inc. v. Hasbro, Inc. This principle applies to all E-discovery cases.