Electronic Discovery

When databases, computer forensics, or other large collections of electronic information are at issue, discovery challenges can be best handled with hands-on assistance from a neutral party. Courts lack the time and technical capabilities to cost-effectively get the job done. We summarize the reasons why special masters can save money, and summarize the authority for their appointment.

Reliance on Boolean key word searches to reduce volumes leaves some worried that key documents are not being produced. Statistical sampling provides a means of testing and quantifying whether the keyword selections provide a complete solution.

In-house and outside counsel should be taking leadership and ownership of this area because (i) many of the underlying issues are legal and regulatory, and (ii) lawyers are responsible for most of the hidden costs when this area is handled poorly. We explain why most companies are doing a poor job in this area, and provide practical advice regarding how to address this area properly.

Since practically all business records are now computerized, it makes sense to learn about your opponent’s systems BEFORE you start to make requests. A corporate-representative deposition on electronic-discovery issues should be the very first discovery action you take. When done at the beginning of a case, senseless argument over what information exists and does not exist is avoided, because you then have the benefit of a party admission. We provide a list of records that you should be requesting in this initial deposition.

The Court in a substantial patent case found electronic discovery abuse. The client lost the case and will have to pay defendant’s legal fees and costs. In addition, the lawyers involved will likely be punished personally, including possible (i) monetary sanctions, (ii) referral to the California State Bar for appropriate investigation and possible sanctions, and (iii) counsel’s formal disclosure of this Court’s findings to all current clients and any courts in which counsel is admitted or has litigation currently pending. We provide advice to lawyers who are attempting to meet the new standard of care in this area.

Hash totals are the tool used to authenticate electronic evidence. As electronic evidence becomes more prevalent, litigators need to stop wasteful procedures that treat electronic evidence like paper. We provide a primer in this important area, and include an interactive tool that will help evaluate the replacement of manual production numbers.

In a case of first impression, a Central District of California Court ruled that Random Access Memory (RAM) information must be preserved and produced.

A recent case confirms that backup data was never automatically exempt from production. Parties need to justify why electronic data is not being produced. The defendant in this case could have avoided some adverse consequences if they followed the simple advice we provide. We also describe some misused labels in electronic discovery.

Voice mails have received little attention in electronic discovery. New unified message systems will remove some of the limitations that have caused this. We review the past limitations, and what is creating change. Smart litigators will incorporate these changes into their discovery plans.

More prevalent computerized evidence means greater chances that data has been mishandled. We review key considerations in determining whether you should attempt to exclude such evidence and, similarly, how to avoid this happening to you.

Here are the pros and cons of the four major choices that you face, ranging from paper to native electronic discovery. No answer is right in all situations, so we tell you how you should make this important decision.

Computer forensic examiners find a treasure-trove of information on used hard drives.

Computer forensics can be used to determine whether an employee violated company policies. In making these determinations, one must be careful to understand and interpret alternative explanations of what has occurred. Failure to do so can result in false accusations and related claims of wrongful termination.

Fulbright & Jaworski's recent annual study of in-house trends named electronic discovery as the number 1 litigation-related burden for companies with revenues greater than $100 million.

Redacting documents with a thick black marker does have its advantages.  Once copied to avoid bleed-through of the unwanted information, one can be certain that the undesired information is gone.  But paper has all the limitations of … well, paper.

Increasingly, lawyers are asked to review and produce metadata (also known as "embedded data") in response to legal discovery requests.  Courts throughout the U.S. have recognized the additional information that metadata provides, and have fairly consistently ordered parties to produce metadata when the issue has been raised.

Clients, courts, and opponents are becoming more savvy about the efficiencies that occur when electronic discovery is performed properly.  A recent Delaware Chancery Court decision (Instinet Group Inc. Shareholders Litigation, Consolidated C.A. No. 1289-N, December 14, 2005) provides a warning that applies to a broad range of cases.

It is astounding that employees at the highest corporate level in Philip Morris, with significant responsibilities pertaining to issues in this lawsuit, failed to follow [the] Order ... which, if followed, would have ensured the preservation of those emails which have been irretrievably lost.

The Appellate Court limited its finding by stating that this "does not mean that the demanding party must always pay all costs associated with retrieving usable data from backup tapes" but instead must only pay "its reasonable expense for a necessary translation."

Employees have a variety of inexpensive digital storage devices available to them that, when used at work, pose significant data security issues.  An employer’s data has never been less secure and harder to control.

Electronic discovery needs to be taken more seriously by many litigants.  A recent big-dollar case provides a striking example from a (presumably) sophisticated litigant.  The defendant is already accusing its legal counsel of malpractice.