Electronically Stored Information

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1 Electronically Stored Information The Complete Guide to Management, Understanding, Acquisition, Storage, Search, and Retrieval David Robert Matthews DRFS, CSFA fc Croup, business feook

2 Foreword Preface Acknowledgments The Author xv xvii xix xxi Chapter 1 What Is Electronic Information, and Why Should You Care? Introduction Electronically Stored Information (ESI) and the Federal Rules of Civil Procedure Changes to the Federal Rules of Civil Procedure 3 Rule 16 (b)(5) and (6) Pretrial Conferences; Scheduling Management Rule 26 General Provisions Governing Discovery; Duty of Disclosure Rule 37 Safe Harbor Rule 34 (b) Producing... 13

3 vi Contents Rule 33 (d) Interrogatories to Parties Rule 45 Subpoena Form Federal Rules of Evidence FRE FRE Case Law Examples Bass v. Miss Porter's School (D. Conn. Relevancy Crispin v. Christian Audi0er, Inc. (CD. Information Romano v. Steelcase (NY. Sup. Q. 2010) Another Social Media Privacy Case Spoliation Examples Inc. v. Vanaire, Inc. (W. D. Ky. to Reasonably Expect Litigation Olson v. Sax (E. D. Wis. Harbor Rule Spieker v. Quest Cherokee, LLC (D. Kan. Is the Practice 27

4 Electric Sys., Inc. v. Cleveland Die and Mfg. Co. (E.D. Mich. of Evidence as Requested in Meet and Confer Takeda Pharm. Co., Ltd. v. Teva Pharm. USA, Inc. (D. Del. Reasonably Accessible? O'Neill v. the City of Shoreline (Wash. Are Data and Home Computers Are Williams v. District of Columbia "Claw-Back" Rules Can You Pacific Coast Steel, Inc. v. Leany (D. Nev. Privilege Kipperman v. Onex Corp. (N.D. GA. Textbook Case Pippins v. LLP (S.D.NY. Much Data Do You Really Have to Keep Chen v. Dougherty (W.D. WA. 7/7/09) Attorney Gets a Slap for Incompetence 33

5 United Central Bank v. Fashions, Inc. (N.D. 9/21/11) Spoliation Sanctions That Hurt the Party but Not Their Attorney Pension of Univ. of Montreal Pension Plan v. Bank of Am. LLC (S.D.N.Y 1/15/10) Holmes v. Petrovich Development Company, LLC (CA Court of Appeals, October, Sent from Work Not Privileged Lester v. Allied Concrete Company (Circuit Court VA, September, 2011) Original Award Reduced Due to Withholding of Facebook Evidence The Rulings of Judge Pension, and National Day Labor Other Federal Rules That Affect Electronic Data The Problems with ESI as Discoverable Evidence 45 Why and How This Affects the Practice of Law How This Affects Business Organizations Effects on Government Entities What This Might Mean to You as an 57

6 ix Chapter 2 Translating Geek: Information Technology versus Everyone Else Introduction The Role of Information Technology 62 The Information Technologist's Perspective Information Technology as an Ally Translating Geek 77 Chapter 3 Where is Electronically Stored Information? It's Everywhere! Introduction The Basics Database Systems Systems File and Print Servers Messaging Services Mobile Devices Physical Access Records Telecommunications Cellular Devices Video Internet or Online Data Storage Media Desktop Computer Facts Metadata and Other Nonapparent Data Conclusion 167 Chapter 4 Who's in Charge Here? Allies, Owners, and Stakeholders The (Long) List of Stakeholders Information Technology Professionals Legal Staff Records Managers 174

7 x Contents Auditors Department Heads, Vice Presidents, and Executives Physical and Information Security Personnel Ownership of Data Data Control Considerations Required Skill Sets and Tools 185 Chapter 5 The Hunt: Recovery and Acquisition Introduction Where Oh Where Has My Data Gone? Applications as a Vital User Interface Hidden or Restricted Access Data Encrypted Data Deleted or Corrupted Data Proprietary Data or Data Stored on Obsolete Media Privileged, Sensitive, and Inaccessible Data Management Proving Ownership and Integrity Marking Time Is Recorded and Ensuring Integrity Legal and Sound Acquisition 233 Chapter 6 Keeping Your Treasures: Preservation and Management Introduction Securing the Data Access Control and Management Organization and Management Techniques Organization 252

8 xi Management of Data over Response to Litigation or Audits 258 Safe Storage Issues and Considerations Litigation Hold 267 Loss of Relevant Data Automated Technical Solutions 272 Chapter 7 Sharing Is Good: Dissemination and Reporting Introduction Format or Usable? Mediums for Transfer Creating Readable Reports Tips for Depositions and Expert Witness Conclusion 290 Glossary 293 Appendix Links and References for More Information 329 Appendix B: Forms and Guides 335 Appendix C: Links to Technical Software Solutions Index 357

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