1 TRIAL IN THE ELECTRONIC AGE A Primer on e-discovery for Bankruptcy Lawyers By: Chad S. Bowen, Jennis & Bowen, P.L. 1 A full 90% of all the data in the world has been generated over the last two years 2 INTRODUCTION Electronically stored information ( ESI ) is everywhere. Every document, spreadsheet, scan, and that was created or exists on a computer constitutes ESI. A technology research company estimated that as of 2011 mankind had generated 1.8 zettabytes (which is 1.8 trillion gigabytes) of information. For perspective, that is enough data to fill 57.5 billion ipads (the 32- gigabyte version) that, if stacked on top of each other, could build a Great Wall of China twice as tall as the original. That number went up to 2.8 zettabytes in 2012 and is predicted to hit 40 zettabytes by As such, chances are significant that ESI is present to some degree in almost every litigated case today. While most attorneys are probably aware ESI exists in their cases, fewer seem to be able to effectively request, produce, and ultimately use that ESI in a trial setting. Given the exponential growth of ESI in the last decade, knowing how to effectively and costefficiently conduct electronic discovery (e-discovery) is poised to become as fundamental a litigation skill as knowing how to effectively take a deposition. As a lawyer, ask yourself whether your repertoire for dealing with discovery involving ESI is limited to the following: When requesting production of ESI, you simply expand the page-long definition describing Documents to include [a]ny and all books, records, papers, [etc.] and ESI; and When producing ESI to an opposing party, you simply convert s and other documents to Adobe.PDF format and produce them on a CD or a thumb drive. 1 The author wishes to thank the Honorable Anthony Porcelli and Adam Sharp of E-Hounds, Inc. for their valuable input and contributions to this paper. The views and opinions expressed herein are those of the author and do not necessarily reflect the views of any other person or organization. 2 Åse Dragland, Big Data, for Better or Worse: 90% of World's Data Generated Over Last Two Years, SCIENCE DAILY (May 22, 2013), 3 How Much Data is Out There?, WEBOPEDIA.COM, (updated March 3, 2014)
2 If so, then you may not only be running the risk of losing your clients cases, but you may also be running afoul of your ethical duties as a lawyer and exposing yourself to malpractice risk. It has been almost nine years since the amended Federal Rules of Civil Procedure went into effect to address the issues caused by the exponential growth in electronically stored information. 4 ESI is very different than paper discovery because of, among other things, its sheer volume, the variety of sources of ESI, the ease of modifying it, ESI s dependence on a proper a hardware and software environment to be useful, and the potential for ESI to contain hidden information. Recently, some courts have noted that lawyers who have not yet moved beyond conducting traditional paper discovery are likely running afoul of their ethical obligations to their clients of competency and zealous advocacy. 5 On top of that, the penalties for mishandling ESI can range from sanctions, to adverse inferences, to an adverse judgment. This paper is intended to serve as a handy guide to assist practitioners in identifying, evaluating, and effectively managing e-discovery issues in their bankruptcy cases. 6 WHAT IS ESI AND WHY IS IT IMPORTANT? Federal Rule of Civil Procedure 34(a)(1)(A), made applicable to bankruptcy cases by Federal Rule of Bankruptcy Procedure 7034, defines ESI as including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. Common examples of ESI present in bankruptcy cases include s, documents, spreadsheets, attachments to s (such as attached Adobe.PDF files, Microsoft Word documents, and the like). In certain cases, ESI can include things such as Facebook pages, instant messaging chains, and text 4 See Federal Rules of Civil Procedure 26, 37, and 43, which were amended specifically to deal with ESI and went into effect December 1, See FLA. RULES OF PROF L CONDUCT R cmt. (2014) ( To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject. ); MODEL RULES OF PROF L CONDUCT R. 1.1 cmt. 9 ( To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. ); Martin v. Northwestern Mut. Life Ins. Co., 2006 WL , at *2 (M.D. Fla. Jan. 19, 2006) (finding that it was frankly ludicrous for an attorney to have failed to produce requested documents on the basis that he was computer illiterate and therefore incapable of compiling and producing electronically stored documents). 6 For a more thorough review of e-discovery issues in different kinds of bankruptcy cases, the author recommends readers consult: The Business Lawyer, Volume 68, No. 4, pp , Best Practices Report on Electronic Discovery (ESI) Issues in Bankruptcy Cases, ABA Electronic Discovery (ESI) in Bankruptcy Working Group, Bankruptcy Court Structure and Insolvency Process Committee (August 2013).
3 messaging. Sometimes the ESI that is most pivotal in a litigated case is the metadata 7 contained in a computerized file. Why should this broadly defined scope of ESI be important to lawyers? For at least three reasons: (1) ESI is evidence and must be treated that way, (2) at the early outset of potential litigation, your clients have a duty to preserve all relevant ESI and failing to do so could cost your client dearly, and (3) lawyers have ethical duties compelling them to understand how to effectively and cost-efficiently handle discovery involving ESI. Failing to fulfill these duties can cost you cash, your client, and even the case. THE DUTY TO PRESERVE ESI, LITIGATION HOLDS, AND THE RISKS OF SPOLIATION One of the dangers of ESI is that it is arguably easier to modify and to destroy than traditional paper documents. With a few mouse clicks or keystrokes, electronic documents can be modified, or thousands of pages can be deleted in an instant. Likewise, many individuals and businesses have set up rules that automatically purge s and documents after a certain amount of time, which can lead to the destruction of relevant ESI. Admittedly, Federal Rule of Civil Procedure 37(e) contains a safe harbor, which provides that [a]bsent exceptional circumstances, a court may not impose [spoliation related] sanctions... for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. Unfortunately for lawyers and their clients, that safe harbor is not as safe as it seems. Some courts have found that the act of failing to suspend an autodelete function when litigation was imminent was, by itself, an exceptional circumstance that took a litigant out of Rule 37(e) s safe harbor protection. 8 Whether willful, reckless, or negligent, the alteration or destruction of any evidence can have dire consequences for counsel and client alike. Unlike paper documents, however, modified and deleted electronic information is often recoverable, and evidence of its alteration is readily apparent to experts in the field of computer forensics. This makes spoliation of ESI a particularly treacherous issue for clients and their attorneys. In fact, as Judge Shira A. Scheindlin (author of the seminal Zubulake decisions, 9 which set the modern standard for e- discovery) recently stated: The law does not require a showing of malice to establish intentionality with respect to the spoliation of evidence. In the context of an adverse inference 7 Metadata has been loosely defined as data about data. It can include hidden data embedded in computer files that reveals when a document was drafted, when a file was accessed and who accessed it, and other useful information that could conceivably bear on crucial issues in a case. 8 See, e.g., Disability Rights Council of Greater Washington v. Washington Metro. Transit Auth., 242 F.R.D. 139, 146 (D.D.C. 2007) (calling the defendant s failure to prevent an automatic deletion feature from deleting s during litigation indefensible, and finding that Rule 37(e) does not exempt a party who fails to stop the operation of a system that is obliterating information that may be discoverable in litigation from sanctions). 9 Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309, 322 (S.D.N.Y. 2003); Zubulake v. UBS Warburg, LLC, 220 F.R.D. 216 (S.D.N.Y. 2003).
4 analysis, there is no analytical distinction between destroying evidence in bad faith, i.e., with a malevolent purpose, and destroying it willfully. 10 When does the duty to preserve ESI arise? While there are open questions regarding parties duties with respect to the preservation of ESI under Florida state law, 11 in federal litigation the duty to preserve ESI has been more clearly articulated. The majority of federal courts agree that [t]he obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation. 12 This duty to preserve ESI not only includes the obligation to implement a defensible litigation hold to protect potentially relevant ESI, but also the obligation to affirmatively suspend any routine that would automatically purge relevant ESI. In the context of bankruptcy cases, this preservation obligation may arise long before the bankruptcy petition date in situations where, prior to the bankruptcy being filed, the client develops a reasonable expectation that there may be civil litigation involving a particular claim. Of course, unique to the bankruptcy case itself, a preservation obligation arguably arises in the context of preparing to file a bankruptcy petition, filing a claim against a debtor, challenging exemptions, and determining what constitutes property of the estate, as well as determining a debtor s entitlement to a discharge and dischargeability of debts. If a lawyer fails to adequately inform her client of the preservation duty in connection with reasonably foreseeable litigation, it is the client who will likely suffer the consequences in that litigation (with the lawyer possibly becoming the target of the client s malpractice lawsuit later). What is a lawyer to do? How does a lawyer develop and implement a defensible litigation hold? One of the first steps a lawyer should take when being retained by a client is to determine whether ESI could be a significant issue in the case. If so, then the lawyer should immediately ascertain the type of relevant ESI involved, the location of that ESI (sometimes called a data map ), and the specific people associated with the client that have access to and control of that ESI. The nature, scope, and timeframes that define what constitutes relevant ESI will vary with the issues in each particular case. A good way of assessing those ESI related issues is to ask the client to complete an ESI Questionnaire. An example of this kind of questionnaire is included as Attachment A to this article. Also, as discussed below, lawyers should be able to recognize when their case will require the services of an e-discovery consultant. When those circumstances arise, the attorney should involve an e-discovery consultant as early as possible to assist with, among other things, formulating and implementing a defensible ESI preservation protocol. To avoid the unpleasant allegations and the potential consequences of failing to properly preserve ESI, lawyers and their clients should always be prepared to defend their efforts to comply with the preservation duties regarding ESI. After ascertaining the type, location, and 10 Sekisui Am. Corp. v. Hart, 945 F. Supp. 2d 494, 506 (S.D.N.Y. 2013) (reversing a magistrate judge and imposing sanctions on a plaintiff for spoliation of ESI). 11 See William F. Hamilton, Lindsay M. Saxe, and Stephanie Moncada, STREAMLINING AND MODERNIZING FLORIDA S PRE-LITIGATION PRESERVATION STANDARD: MODERN TECHNOLOGY DEMANDS A MODERN SOLUTION, Florida Bar Journal, Volume 88, No. 5, at 18 (May 2014). 12 Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (citations omitted)
5 custodians of relevant ESI, prudent lawyers should discuss and develop an appropriate litigation hold protocol with their client (and perhaps the client s IT staff). Generally speaking, an appropriate preservation methodology includes the following seven (7) components: 1) Identify Sources of ESI. As discussed previously, it is important to survey the range of sources and locations of relevant ESI once it is determined that a preservation duty has arisen. Lawyers must help their clients understand the factual and legal issues giving rise to the litigation hold obligation, and the clients in turn should help the attorneys identify both the physical location of relevant ESI (on-site, off-site, on servers, workstations, thumb drives, cell phones, etc.), as well as the key personnel have access, custody, or control of relevant ESI (i.e. custodians). Likewise, it is important for the attorneys to advise corporate clients and individual clients alike to appropriately suspend automatic deletion, automatic purge, or similar programs that would otherwise modify or delete relevant ESI. 2) Provide written notice of litigation hold. To be most effective, attorneys should provide their clients with a set of clear written instructions that can be transmitted to the appropriate set of custodians. The instructions should provide the custodians with an appropriate level of detail regarding the purpose for the litigation hold, the relevant factual and legal issues, examples of the types of ESI that might be in the custodians control that should be preserved, and the consequences of a failure to properly preserve ESI. The notice should also address suspension of any policies, practices, or programs that would otherwise result in the automatic deletion or modification of relevant ESI, as necessary. 3) Distribute written litigation hold notice to selected custodians likely to have relevant information. It is important to effectively distribute a written litigation hold notice. Send it to too many people, and it gets ignored. Send it to too few, and it does not have its desired effect. Distribution should be by a means that is reliable and verifiable. In today s modern environment, that often means the litigation hold notice gets sent by . 4) Require custodians acknowledgment of receipt and understanding of written litigation hold notice. Although it may not be necessary, it is a good idea to require custodians receiving litigation hold notices to affirm both their receipt of the notice, and that they understand (through some communication method that can be tracked) the information contained therein. The object is to demonstrate appropriate custodians were provided with the notice and indicated not only that they had received the notice but also that they read and understood it. 5) Conduct interviews with at least the key custodians. Again, while not necessary, it is prudent to conduct follow-up interviews with at least the key ESI custodians to ensure their understanding and to fully effectuate the intent of the litigation hold. Explaining the purpose of a litigation hold, the types of ESI subject to the hold, and answering any questions the custodians may have can potentially eliminate or minimize problems later and creates a more defensible litigation hold strategy.
6 6) Periodic follow-up. Periodically following up with ESI custodians that are the subject of a litigation hold ensures that any new and relevant ESI is properly preserved and serves to remind the recipients that they remain under the obligation to preserve relevant ESI throughout the pendency of the (potential) litigation. 7) Issue a release notice. Often forgotten, releasing a client from a litigation hold can be as important as issuing the hold. Litigation holds create stress and expense for clients and their personnel. Failing to release litigation holds, particularly in a business that has multiple pending litigation matters, can overwhelm the corporate client and its staff, and cause them to take pending litigation holds less seriously. PREPARING FOR E-DISCOVERY One size does not fit all. At the outset, it is important to recognize that ESI is not going to be a central issue in every case. For example, Federal Rule of Civil Procedure 34(b)(2)(E)(ii) contemplates the production of electronically stored information in a form or forms in which it is ordinarily maintained [a.k.a. native format ] or in a reasonably usable form or forms. However, in some civil cases, the parties may agree that paper printouts of s will be adequate. Similarly, some cases will focus on computer forensics rather than e-discovery. 13 In most business bankruptcy cases, however, e-discovery will be an important and necessary tool. Intelligently discussing these issues and collaborating with opposing counsel early in the case may determine whether e-discovery becomes manageable or becomes a monster. Communication and cooperation are crucial. Addressing ESI issues cooperatively and early in a case is not only prudent, but can be required of the parties if a Rule 26(f) conference is held in a case. Federal Rule of Civil Procedure 26(f)(3)(C) states in relevant part that [a] discovery plan must state the parties views and proposals on... any issues about disclosure or discovery of electrically stored information, including the form or forms in which it should be produced. Well prepared lawyers will be ready to discuss at the Rule 26 conference the role relevant ESI will play in the litigation, proper preservation of relevant ESI, production format, redaction issues, claw backs for inadvertent disclosure of privileged documents, 14 estimated cost and proportionality of e-discovery, and related ESI issues. Even if counsel cannot agree on every aspect of e-discovery in a particular case, taking seriously Rule 26 s meet and confer mechanism can significantly narrow the areas of dispute involving e-discovery and save time, 13 Generally, e-discovery focuses on the identification, preservation, and processing primarily of s and electronic documents. Computer forensics, on the other hand, focuses on a more thorough review that involves analysis of the specific data on the hard drives, finding deleted files, uncovering evidence of deletion attempts, and locating hidden documents and files. While counsel should be able to recognize the difference between the two, issues relating to computer forensics are beyond the scope of this article. 14 It is widely recognized that producing vast amounts of ESI increases the chance of inadvertently producing privileged documents. Importantly, Federal Rule of Evidence 502 provides that by court order or by agreement among the parties, privileged materials that are inadvertently produced (particularly in the context of an ESI production), can be clawed back upon a proper showing, without having inadvertently waived the applicable privilege or protection. Counsel should carefully consider obtaining an agreement or court order governing such inadvertent productions prior to commencing e-discovery.
7 frustration, and expense that could otherwise exist for the duration of the case. Included as Attachment B to this article is a helpful checklist (from the Northern District of California) that can be used to guide discussions of ESI at the Rule 26 Conference (or at a similar meeting among counsel early in the case). 15 Counsel should be prepared to discuss with the Court unresolved e-discovery issues at the Rule 16 pre-trial conference. Production of ESI from non-parties can often be a challenge. It is governed by Federal Rule of Civil Procedure 45 (made applicable to bankruptcy cases by Federal Rule of Bankruptcy Procedure 9016). Rule 45 governs the issuance of subpoenas to nonparties, and requires the production of ESI by non-parties in a manner that is very similar to that required among litigants under Rules 26 and 34. There are, however, differences that can create problems. First, there is no meet and confer requirement under Rule 45. While a collaborative approach to e-discovery is desirable, it is less likely to occur without a meet and confer obligation analogous to that of Rule 26. Counsel requesting e-discovery from a nonparty should also take heed of Rule 45(d)(1) s requirement to take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena [or face] an appropriate sanction which may include lost earnings and reasonable attorney s fees on a party or attorney who fails to comply. A nonparty opposing a subpoena can also file a written objection to, among other things, being required to produce electronically stored information in the form or forms requested [if] served before the earlier of the time specified for compliance or 14 days after the subpoena is served. As with production among parties, under Rule 45(e)(1)(D) the producing nonparty need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. Those issues can lead to the need for judicial intervention to address resulting motions for protective orders and motions to compel. Whether e-discovery involves parties or nonparties, if ESI is going to be a key issue, it may be prudent for counsel and their respective clients to retain e-discovery consultants early in the case. Those consultants can assist counsel and their clients to formulate and implement a defensible litigation hold, develop powerful and precise discovery requests for relevant ESI, and assist the client in meeting its obligations to identify and produce relevant ESI in response to discovery requests from the opposing side. To save costs for all litigants, it may be possible to jointly agree with cooperative opposing counsel to employ a single e-discovery consultant to develop and evenly implement proper e-discovery protocols for all parties to the litigation. In the event e-discovery matters and disputes take a turn for the worse and become a case within the case, bankruptcy courts may also consider sending the parties to mediation or appointing an e- discovery examiner who can provide the bankruptcy court with a report and recommendation for resolving troubling e-discovery issues. Proportionality, Cost Sharing, and Cost Shifting. The idiom, Don t use a sledgehammer to kill a gnat applies to e-discovery. In the e-discovery context, this concept is often referred to as proportionality. Proportionality is a cornerstone of fashioning effective, cost-efficient e- discovery. The presiding court has the power to limit discovery of non-privileged information 15 In the bankruptcy context, absent voluntary exchange of information bearing on e-discovery, it may be possible to obtain some of the ESI related information at the meeting of creditors under Bankruptcy Code Section 341 or through an examination under Federal Rule of Bankruptcy Procedure 2004.
8 relevant to any claim or defense of any party under Federal Rule of Civil Procedure 26(b)(2)(C), if the court determines that, among other alternative grounds, the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Further, Rule 26(b)(2)(B) provides specific limitations on the discovery of ESI. That rule states: A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (emphasis added). In other words, even if ESI is relevant and non-privileged, the benefit of retrieving it may not be worth the cost of doing so. For example, the costs of retrieving newer, active data from a few local computers should generally be easier (and less expensive) than retrieving archived data from a large number workstations stored on remote backup tapes. If that hard-to-get information is not critical to the case, a proportionality analysis may militate against compelling production of that ESI. Even if a data source is determined to be not reasonably accessible, the inquiry is not over. That data may nevertheless have to be produced if the party seeking the discovery shows good cause. As one might expect, courts determine whether good cause exists under Rule 26(b)(2)(B) by considering a number of factors in a variety of factually specific scenarios. 16 One important factor suggested by the Committee Notes to Rule 26(b)(2)(B) is whether the source of data was not reasonably accessible due to the acts or omissions of the producing party. Courts sometime require parties to share the costs of e-discovery, although it runs afoul of the American Rule under which parties bear their own legal fees and costs in ligation. In extreme cases, courts can shift all of the costs associated with certain e-discovery tasks from the producing party to the requesting party. However, most courts agree that [c]ost-shifting should only be considered when discovery imposes an undue burden or expense that outweighs the likely benefit of the discovery, such as cases involving large amounts of ESI or ESI that is not 16 See, e.g., Murray v. Coleman, et al., 2012 WL (W.D.N.Y. September 12, 2012)(holding that production of paper documents in lieu of the requested ESI did not comply with discovery requirements, and compelling the producing party to file an affidavit to provide factual support for factors the Court would consider in determining whether the requested ESI was not reasonably accessible ).
9 reasonably accessible. 17 Courts considering cost-sharing or cost-shifting look at a number of factors such as (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, compared to the amount in controversy; (4) the total cost of production, compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the information. 18 Even when courts are asked to intervene in an e-discovery dispute, rather than immediately shifting all costs to the requesting party, many judges first adopt incremental approaches to determine if ESI is truly not reasonably accessible and if cost shifting is appropriate. Examples of such incremental approaches include data sampling, first requiring searches of similar information from more reasonably accessible sources, or ordering limited discovery to better ascertain the burdens and costs of obtaining the allegedly not reasonably accessible data. 19 Although the cost of e-discovery has decreased in recent years (as technologies and techniques have improved), the threat of cost shifting should encourage parties to work together to consensually agree to proportional and effective e-discovery protocols, and to agree on whether certain ESI is not reasonably accessible such that cost-sharing appropriate. As with other aspects of e-discovery, counsel, clients, and their e-discovery consultants should openly communicate and confer with each other regarding whether certain information is not reasonably accessible and why it is not reasonably accessible. In some instances, there may be more accessible information from alternative sources, or the parties may agree that the target information is really not that important to the core issues of the case (i.e., the juice is not worth the squeeze ). CONDUCTING E-DISCOVERY The precise methods of conducting e-discovery can vary depending on the particular case at issue. As mentioned before, one size does not fit all. For example, it may be sufficient in a case with simplistic ESI issues that opposing counsel simply agree amongst themselves to have the clients produce Outlook s in.eml format, Excel spreadsheets in.xls format, and scanned images in Adobe.PDF format. A more complex case may necessitate retaining one or more e-discovery experts who will use specialized techniques and computer programs to acquire and process the ESI, like Intella or EnCase. Regardless of what form production of ESI is agreed upon (or imposed by the Court), the basic steps of an effective e-discovery protocol are largely constant. They are: 17 See, e.g,. Couch v. Wan, 2011 WL , at *4 (E.D. Cal. June 24, 2011) reconsideration denied, 2011 WL , at *4 (E.D. Cal. July 20, 2011) (concluding under the facts of that case that the discovery requests imposed a burden on the responding party that was sufficient to warrant cost-sharing). 18 Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309, 322 (S.D.N.Y. 2003). 19 Barbara J. Rothstein, Ronald J. Hedges, and Elizabeth C. Wiggins, Managing Discovery of Electronic Information: A Pocket Guide for Judges (Second Edition), Federal Judicial Center (2012). Importantly, the burden of proving responsive ESI is not reasonably accessible is on the producing party.
10 (1) Identification of ESI sources and custodians. The first step to developing an effective e-discovery protocol is to understand the types of data being sought, the places where that data resides, the custodians of that data, and the magnitude of the data. This first step can be accomplished through interviews with the client, discussions with the client s IT professionals, discussions with the data custodians, and a physical review of the client s technology platform. (2) Proper acquisition of the data. Proper acquisition of ESI can be accomplished through a number of minimally disruptive methods. Of primary concern is ensuring the integrity of the ESI acquired. Simply copying files to a thumb drive may not be appropriate, since that action modifies the metadata in the copied files, which could constitute spoliation. In cases that require an e-discovery professional, all or some portion of a hard drive containing relevant ESI will be imaged onto a separate, removable hard drive known as a forensic capsule. To ensure that the forensic capsule contains a verbatim copy of the original target ESI, the acquisition program uses an algorithm to generate a hash value (a string of numbers and letters unique to a particular dataset) or some other similar digital fingerprint. If even one bit of data differs between the original target drive and what is on the forensic capsule, the digital fingerprint of the original drive and the forensic drive will not match. This method of acquiring drives is standard industry practice and can be an important aspect of establishing the authenticity of ESI at trial. (3) Processing the data (which includes deduplication, denisting, and other culling methods). In cases that require the assistance of an e-discovery consultant, once the target data has been acquired, it must be processed. Processing of ESI includes deduplication (removing duplicate copies of files, for example, multiple copies of the same ), denisting (removing certain standard programs and executable files that are been identified by the National Institute of Standards and Technology), and indexing the ESI. Processing the acquired ESI significantly reduces the mass of data that must be searched for responsive ESI and also makes the data easier to search. Once the ESI has been fully processed and indexed, it is typically loaded on a review platform (like a remote server) that can then be accessed by counsel for the producing party. (4) Developing keywords and other search methods. Once ESI has been acquired, processed, and loaded onto a review platform, it must be searched for ESI responsive to the pending e-discovery request. The most common method of searching ESI is for producing counsel, in cooperation with both opposing counsel and an e-discovery consultant, to develop a set of keywords that are designed to best capture documents sought in the various requests for production. Keyword searches of ESI are similar to the Boolean logic-based searches on Westlaw and Lexis, with which many attorneys are familiar. Most e-discovery programs accommodate keyword searches using so-called wildcard characters to account for various prefixes and suffixes, are able to exclude certain words, and offer similar flexible search capabilities. Once again, cooperation between opposing counsel is a critical component of this step in the e-discovery process. Often the first attempt to run a keyword search derived from a particular request for production will generate a number of false positives and misses. That is why counsel should work together cooperatively to refine the keyword search through trial and error, sometimes referred to as an iterative feedback loop. Ultimately, the keyword search will generate both a high level of recall (a large number of relevant documents out of the total
11 universe of ESI searched) and a high level of precision (high number of relevant documents in the resulting set). There are emerging technologies that can assist the search process. These are sometimes referred to as Computer Assisted Review ( CAR ) or Technology Assisted Review ( TAR ). Both CAR and TAR use computerized logic algorithms, samples of responsive documents, and some user input to learn what kind of documents are being sought (this is sometimes called predictive coding ). In theory, technology assisted document review largely automates the review process. Although CAR and TAR technologies are improving and gaining favor, it is a still new approach to handling e-discovery, and some e-discovery experts have concerns about its reliability, particularly in the areas of recall and precision. 20 (5) Reviewing the ESI. Once proper searches of the ESI have been completed, the resulting document set should be a significantly slimmed-down subset of the original ESI that was acquired. Those documents are then typically reviewed by attorneys and paralegals to confirm their responsiveness, remove documents from the production set that should be withheld on the basis of some privilege, and prepare the appropriate privilege log, as required under the applicable procedural rules. (6) Production. The last step in the process is to produce the documents to opposing counsel in the format previously agreed upon (or mandated by the court). E-discovery programs typically have the ability to export an indelible copy of responsive ESI in its native format and use unique identities in naming exported files (similar to Bates tamping paper discovery). This permits the receiving party to review the responsive document, its metadata, and other fields (which is particularly useful in the case of Excel spreadsheets, for example), without the fear of unintentionally adulterating important data in the electronic document. CONCLUSION Trials in this electronic age increasingly involve electronically stored information. Lawyers are charged with the duty to remain competent in their field of practice by maintaining the requisite knowledge and skill to stay abreast of changes in the law in its practice. Lawyers who fail (or stubbornly refuse) to adapt to a world where litigation is inundated with ESI are arguably failing their clients and the court. Those attorneys who are able to conduct appropriate e-discovery will have a distinct advantage over those who are not able to do so. Similarly, judges must also familiarize themselves with the realities of modern e-discovery in order to better manage their cases and dispense efficient and effective justice to the public. As Bill Clinton once said, The price of doing the same old thing is far higher than the price of change. 20 In Moore v. Publicis Groupe, 287 F.R.D. 182, (S.D.N.Y. 2012), Magistrate Judge Andrew Peck was one of the first judges to judicially recognize that the use of predictive coding, also referred to as computer-assisted review, can be an acceptable way to search for relevant ESI. Other courts are slowly starting to follow suit. See Fed. Hous. Fin. Agency v. HSBC N. Am. Holdings Inc., 2014 WL , at *3 (S.D.N.Y. Feb. 14, 2014) (noting that [t]he literature the Court reviewed... indicated that predictive coding had a better track record in production of responsive documents than human review. ).
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