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Electronic Discovery
University of South Carolina School of Law
Montgomery, Sarah

Professor Montgomery

Electronic Discovery

Fall 2016

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

Subpoena Compliance
Search Warrants
Post-indictment Discovery

Common E-Discovery Issues

Locating Relevant/Responsive ESI
Preserving ESI
Collection/Requesting ESI
Culling/Filtering ESI
Reviewing/Redacting ESI
Producing 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.

E-Discovery

The net result of the computer revolution – as it relates to the law – is E-Discovery
E-Discovery Rules

Amendments to FRCP
Effective December 1, 2006 (new amendments took effect December 2015)
Apply in all federal civil suits
Ramifications everywhere
Electronically Stored Information is evidence

E-Discovery Principles May Apply

Governmental audits
Regulatory investigations
Enforcement actions
Records retention
Third-party subpoenas
Agency action
Criminal proceedings
Bankruptcy proceedings
Civil lawsuits (state and federal)
FOIA requests

ESI is Broadly Defined

All electronically stored information

E-mails
Office files
Voice mail messages (cell or office)
Test messages, instant messages
Audio/video
Access logs, surveillance tape
Digital images/ .wav files
Blogs, intranet

Wherever stored

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)
Electronic calendars
Voice mail/VOIP
Intranet/Extranet/Internet
Instant messages
Blackberry pin-pin
Text messages and phone logs (cell phones)
Proprietary systems

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)
Mobile devices
Backup media
Archives (off-site)
Third party contractors
Legacy systems

Secret #3

Know the sources of eDocs.
Some examples include:

Email and attachments
Instant messages
Backu

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.
Examples include:

Date accessed
Date modified
Word count
Company
Date created
Application
Author
Track changes
Date printed
Category
Keywords
Subject
Page count
Title
Size
Owner

Metadata Function

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.