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1 What is Electronically Stored Information (ESI)? August 26, 2013 Peter S. Vogel, Adjunct Copyright, Peter S. Vogel,

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4 Federal Pocket Guide for Judges, 2Ed.

5 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 How does a judge promote early consideration of ESI discovery issues? 6 What matters should be discussed at the Rule 26(f) conference? 7 What preparations for the Rule 26(f) conference should be required? 8 What continuing consultation between parties should be required? 10

6 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 Market research has found that the average employee sends or receives more than 100 electronic messages per working day, which translates into more than How does a judge promote early consideration of ESI discovery issues? 6 What matters should be discussed at the Rule 26(f) conference? 7 What preparations for the Rule 26(f) conference should be 2,400,000 required? 8 messages a year for an organization of 100 employees. What continuing consultation between parties should be required? 10

7 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 Merely opening a digital file changes How does a judge promote early consideration of ESI discovery issues? 6 information about that file, and What matters should be discussed at the Rule 26(f) messages conference? 7 may be automatically deleted after a certain period unless What preparations for the Rule 26(f) conference should be required? 8 steps are taken to avoid it. What continuing consultation between parties should be required? 10

8 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 Deleting What is an the electronic judge s role document in the discovery does of ESI? not 4 necessarily How does a get judge rid promote of it, as early throwing consideration away of or ESI shredding discovery a issues? paper 6 document would. An electronic document What matters may should be recovered be discussed from at the the Rule hard 26(f) drive or server, conference? to the extent 7 it has not been overwritten, and may What be available preparations on for the computers Rule 26(f) conference of other should people be required? 8 or on archival media or backup tapes used for disaster recovery purposes. What continuing consultation between parties should be required? 10

9 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 the How dynamic does a judge nature promote of early ESI consideration makes it vital of ESI that a litigant discovery or issues? potential 6 litigant institute a litigation hold What to matters preserve should information be discussed the that Rule may 26(f) be conference? 7 discoverable, whenever litigation is reasonably What preparations for the Rule 26(f) conference should be anticipated and that can be well before a required? 8 complaint is filed or an answer is served. What continuing consultation between parties should be required? 10

10 Data & Storage

11 Electronic Representations A character is made up a number of electronic impulses that are either: 1 = on or 0 = off Binary: 1, 0 Octal: 0, 1, 2, 3, 4, 5, 6, 7 Decimal: 0, 1, 2, 3, 4, 5, 6, 7, 8, 9 Hexadecimal: 0, 1, 2, 3, 4, 5, 6, 7, 8, 9, A, B, C, D, E, F

12 Minor Alterations of bits will change the electronic meaning 8 bits = 1 character or Byte = M = m Same representation whether on a screen, on a printer, on a disk, on a cell, or tablet

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14 Bit: A Bit is the smallest unit of data that a computer uses. It can be used to represent two states of information, such as Yes or No. Byte: A Byte is equal to 8 Bits. A Byte can represent 256 states of information, for example, numbers or a combination of numbers and letters. 1 Byte could be equal to one character. 10 Bytes could be equal to a word. 100 Bytes would equal an average sentence. Kilobyte: A Kilobyte is approximately 1,000 Bytes, actually 1,024 Bytes depending on which definition is used. 1 Kilobyte would be equal to this paragraph you are reading, whereas 100 Kilobytes would equal an entire page. Megabyte: A Megabyte is approximately 1,000 Kilobytes. In the early days of computing, a Megabyte was considered to be a large amount of data. These days with a 500 Gigabyte hard drive on a computer being common, a Megabyte doesn't seem like much anymore. One of those old 3-1/2 inch floppy disks can hold 1.44 Megabytes or the equivalent of a small book. 100 Megabytes might hold a couple volumes of Encyclopedias. 600 Megabytes is about the amount of data that will fit on a CD-ROM disk.

15 Gigabyte: A Gigabyte is approximately 1,000 Megabytes. A Gigabyte is still a very common term used these days when referring to disk space or drive storage. 1 Gigabyte of data is almost twice the amount of data that a CD-ROM can hold. But it's about one thousand times the capacity of a 3-1/2 floppy disk. 1 Gigabyte could hold the contents of about 10 yards of books on a shelf. 100 Gigabytes could hold the entire library floor of academic journals. Terabyte: A Terabyte is approximately one trillion bytes, or 1,000 Gigabytes. There was a time that I never thought I would see a 1 Terabyte hard drive, now one and two terabyte drives are the normal specs for many new computers. To put it in some perspective, a Terabyte could hold about 3.6 million 300 Kilobyte images or maybe about 300 hours of good quality video. A Terabyte could hold 1,000 copies of the Encyclopedia Britannica. Ten Terabytes could hold the printed collection of the Library of Congress. That's a lot of data.

16 Saving a Microsoft Word File CPU Word Document Windows Carpe Diem disk Word Westlaw

17 Saving a Microsoft Word File CPU Network Word Document Windows Carpe Diem Servers Word Westlaw Disk

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19 Computer Hardware Central Processing Unit CPU Auxiliary Storage I/O {Input/Output} Disk CRT - Video Tape Printer Punch Card CPU Modem Network

20 Operating Systems *Windows 8 *Apple OS X Mountain Lion *unix/linux *IBM z/os

21 Software Applications *Office *Quicken *Oracle Database

22 Storage on a Disk Data is stored randomly on disk Address of data is stored in a Table of Contents disk

23 Storage on a Disk disk

24 TABLE OF CONTENTS Storage on a Disk Word File Address XX disk

25 Table of Contents Like a Phonebook TABLE OF CONTENTS (TOC)

26 TABLE OF CONTENTS (TOC) x Table of Contents Delete the Entry Buildings Remain

27 Deleting Data on Disk Only Removes Table of Contents TABLE OF CONTENTS Word File Address XX disk x

28 Undelete Data Software permits Table of Contents to be reconstructed Maybe not all, Portions if not written over Slack portions

29 Microchip storage

30 Data Formats Extension xml Name Source.doc.docx Word file Microsoft Word.txt Text file Microsoft Word, and other editors.xls.xlsx Excel spreadsheet Microsoft Excel.ppt.pptx PowerPoint Microsoft PowerPoint.tif Tagged Image File Fax or scanners.pdf Portable document profile Adobe Writer, Word, Wordperfect, scanners,.sql Structured Query Language Microsoft SQL, Oracle, Sybase.htm Hypertext Markup Web design software or programming language.jpg Joint Photographic Experts Group Cameras and scanners.vcf Vcard Office Outlook

31 Native Format As document, , or file is stored May be modified by recipient Metadata No Bates Number

32 Paper Files

33 Databases & Flat Files

34 SQL -Database Programming Structured Query Language (SQL) Created by IBM in 1974 Adopted by American National Standards Institute in 1986 Used by IBM, Oracle, Microsoft, Open Source, etc

35 Relational Database Vendors Oracle IBM (DB2) Microsoft (SQL) Open Source (MySQL) Informix Sybase Others

36 Relational Database

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38 Centralized Database

39 Centralized Database

40 Data Storage

41 IT Disaster Recovery Data file backups are for possible disasters Backup media most often magnetic Backup designed for disasters not discovery Generally reconstruct the entire system, not specific data

42 Mainframes 1964 IBM System/360

43 Mainframes 1964 IBM System/360 Backup Tapes

44 1970 s Minicomputers

45 1970 s Minicomputers Backup Tapes

46 Backup Tape Libraries

47 Backup Tapes

48 Magnetic Tape

49 Magnetic Tape

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51 Remote Hot Site

52 SAN (Storage Area Network)

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54 Incremental or Full Backup

55 Grandfather, Father, Son Tape Rotation

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57 Multiprotocol Label Switching (MPLS) Telecommunications Network

58 Metadata

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63 pdf

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68 Windows

69 apple

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71 linux

72 unix/linux

73 Microsoft Explorer

74 c:\ Drive

75 Metadata

76 Metadata

77 Metadata

78 Metadata

79 Metadata

80 wav file

81 wav file

82 tiff

83 tiff

84 tiff

85 tiff

86 Microsoft Access Database

87 Microsoft Access Database

88 Microsoft Access Database

89 Microsoft Access Database

90 = Hash Hash: A mathematical algorithm that represents a unique value for a given set of data, similar to a digital fingerprint. Common hash algorithms include MD5 and SHA.

91 = Hash MD5: (Message-digest Algorithm 5) A hash algorithm used to give a numeric value to a digital file or piece of data. Commonly used in electronic discovery to find duplicates in a data collection. SHA-1 and SHA-2 (Secure Hash Algorithm): for computing a condensed representation of a message or a data file specified by FIPS PUB 180.

92 = Hash Hash Coding: To create a digital fingerprint that represents the binary content of a file unique to every electronically-generated document; assists in subsequently ensuring that data has not been modified.

93 = Hash Hash Function: A function used to create a hash value from binary input. The hash is substantially smaller than the text itself, and is generated by the hash function in such a way that it is extremely unlikely that some other input will produce the same hash value.

94 Disk Fragmentation Delete v. Undelete Copying over all files Slack space

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97 Terms Microsoft Outlook Exchange -pst Lotus Notes (Domino Server) Apache POP (Post Office Protocol) IMAP (Internet Message Access Protocol) SMPT (Simple Mail Transfer Protocol)

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103 Microsoft Exchange

104 .pst Mailbox Inbox Outbox Deleted Sent Junk Drafts Contacts Calendar Archive

105 Finding ESI (Electronically Stored Information) Correspondence & drafts Financial data Databases Legacy systems

106 Saving a Microsoft Word File CPU Word Document Windows Excel disk Word Westlaw

107 Saving a Microsoft Word File CPU Network Word Document Windows Excel Servers Word Westlaw Disk

108 Cloud Use of Microsoft Word CPU Word Document Windows Browser Excel Westlaw Microsoft Cloud

109 Cloud Computing on the Internet

110 Cloud Issues Format of your data at the end of the agreement. Guarantee deletion of data at termination. Define back-up process and verification as part of audit. Define where data resides

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133 4.2 Other Security and Backup. You are responsible for properly configuring and using the Service Offerings and taking your own steps to maintain appropriate security, protection and backup of Your Content, which may include the use of encryption technology to protect Your Content from unauthorized access and routine archiving Your Content. AWS log-in credentials and private keys generated by the Services are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.

134 8.1 Your Content. As between you and us, you or your licensors own all right, title, and interest in and to Your Content. Except as provided in this Section 8, we obtain no rights under this Agreement from you or your licensors to Your Content, including any related intellectual property rights. You consent to our use of Your Content to provide the Service Offerings to you and any End Users. We may disclose Your Content to provide the Service Offerings to you or any End Users or to comply with any request of a governmental or regulatory body (including subpoenas or court orders).

135 11. Limitations of Liability. WE AND OUR AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH:.

136 11. Limitations of Liability., (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SLAS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS;

137 11. Limitations of Liability. (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (c) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS;

138 11. Limitations of Liability. ; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA.

139 11. Limitations of Liability.. IN ANY CASE, OUR AND OUR AFFILIATES AND LICENSORS AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.

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147 6. Services disruptions and backup We strive to keep the services up and running; however, all online services suffer occasional disruptions and outages, and Microsoft isn't liable for any disruption or loss you may suffer as a result. You should regularly backup the content that you store on the services. Having a regular backup plan and following it can help you prevent loss of your content.

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150 No Reference to Backup

151 Your Content in our Services Some of our Services allow you to submit content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.

152 Liability for our Services WHEN PERMITTED BY LAW, GOOGLE, AND GOOGLE S SUPPLIERS AND DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES. TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF GOOGLE, AND ITS SUPPLIERS AND DISTRIBUTORS, FOR ANY CLAIM UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO USE THE SERVICES (OR, IF WE CHOOSE, TO SUPPLYING YOU THE SERVICES AGAIN).

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154 ediscovery from the CIO/CTO Rule 30(b)(6) witness Assistance with responding to Requests for Admissions Requests for Production Interrogatories

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156 (D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form or if no form was specified in the request the party must state the form or forms it intends to use.

157 (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form.

158 (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form.

159 (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form.

160 (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form.

161 Texas Rule of Civil Procedure 196

162 196.4 Electronic or Magnetic Data. To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot - through reasonable efforts - retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. If the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.

163 196.4 Electronic or Magnetic Data. To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot - through reasonable efforts - retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. If the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.

164 196.4 Electronic or Magnetic Data. To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot - through reasonable efforts - retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. If the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.

165 196.4 Electronic or Magnetic Data. To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot - through reasonable efforts - retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. If the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.

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169 What is Electronically Stored Information (ESI)? August 26, 2013 Peter S. Vogel, Adjunct Copyright, Peter S. Vogel,

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