E-Discovery Basics For the RIM Professional. Learning Objectives 5/18/2015. What is Electronic Discovery?

Transcription

1 E-Discovery Basics For the RIM Professional By: Andy Sokol, CEDS, CSDS Adding A New Service Offering For Your Legal & Corporate Clients Learning Objectives What is Electronic Discovery? How Does E-Discovery Pertain to Information Management? How Does the RIM Professional Monetize It? Who Is Andy Sokol and Why Am I Qualified to Speak About Electronic Discovery? 1

2 1995 Founded -Copying and Scanning Documents for Law Firms in South Florida 2014 Started Offering Basic E-Discovery Services in 2005 Due To Changes in Technology Disclaimer I am not an Attorney, and I m not giving legal advice. I m a Subject Matter Expert that is sharing knowledge about Electronic Discovery. 2

3 Let s Get Started9 What Is Discovery? DISCOVERY The pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions. 3

4 Discovery Evolves Paper Discovery Evolves - Scanning E-DISCOVERY Discovery which includes Electronically Stored Information (ESI). 4

5 ESI Electronically Stored Information Digital files including, but not limited to, s, word processing files, spreadsheets, databases, pictures, design files, and audio/video files. Also includes smart phone data and social media account files & posts. ELECTRONICALLY STORED INFORMATION (ESI) ESI includes , word processing files, databases, images, spreadsheets, design files, digital x-rays, etc. Discovery Evolves 5

6 Lets Start at the Beginning9 Electronic Data Discovery Electronic Discovery is not really a major shift in the Legal World. It is better thought of as a shift from the Paper-Based world of yesterday to the Computer-Based world of today and tomorrow. Challenges in IT The World s Information is Doubling Every Two Years Data is Growing Faster than Servers Servers are Growing by a Factor of 10, But Information is Growing by a Factor of 50 Source- 6

7 Information Management Information Management refers to the practice of selectively retaining and readying ESI for potential future needs, including regulatory investigations and Litigation. Information Management Information Management is ONLY the STARTING POINTfor the entire E-Discovery process. Information Management strategies aid organizations in the Identification, Collection, and Preservation steps of the process and can lower the number of documents that need to be reviewed and produced for any Litigation, thereby reducing costs. Records Management Policy There should be a Records Management policy in place outlining Retention and Destruction practices to support business needs, such as everyday operations and compliance audits. The Records Management policy must also respond to the Legal Requirement to retain information that may be relevant to reasonably anticipated, or actual, Litigation. 7

8 SPOLIATION The intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding. In the context of Electronic Discovery, it refers to Destruction or Deletion of Data. Data Maps Federal Rules of Civil Procedure in opposing attorneys discuss records at the beginning of civil litigation. They trade Data Maps, essentially inventories of records, along with information about the records locations and storage media. Without a Data Map, a party to a suit may be deemed in bad faith, and the party s legal standing may be compromised. The Data Map must also include Offsite Storage of ESI and Paper Documents. 8

9 Some RIM Service Providers Already Offer E-Discovery Services. 9

10 10

11 11

12 Phases of E-Discovery 1. Meet & Confer 2. Collection 3. Early Case Assessment 4. Processing 5. Review 6. Production Meet & Confer Also Known As Rule 26(f) MEET & CONFER A meeting to create an agreed-upon discovery plan. Defined under FRCP 26(f) A discovery plan must state the parties views and proposals on: (C) any issues about disclosure of discovery of electronically stored information, including the form or forms in which it should be produced. 12

13 MEET & CONFER Meet & Confer What is Accomplished in this Phase Agreement on Keywords (what kinds of document and on what topics do you want information) Agreement on Date Ranges (from when to when - date range of activity) Agreement on Custodians Agreement on Format of Production Collection Also Known As Forensic Collection, or Data Set Collection 13

14 COLLECTION The Transfer of Data from a company to their Legal Counsel, who will determine relevance and disposition of data. SCOPE OF DATA In addition to searching for discoverable material in physical locations, such as file cabinets, we are required to search and produce documents that are stored electronically. Collection What is Accomplished in this Phase Files from the correct date ranges are copied Files from the desired custodians are copied Files from the correct sources (containers) are copied Metadata is retained, undisturbed 14

15 DATA SET The collection of documents from all people (custodians) and from all storage locations (containers) that make up the information that needs to be reviewed during discovery. NATIVE FILE A digital file in the format of the program that created it (as opposed to an image of what the file looked like printed). Examples are Word (.doc,.docx), Excel (.xls,.xlsx), Powerpoint(.ppt,.pptx), CAD (.dwg), Outlook (.msg) NATIVE FILE 15

16 METADATA Information about an electronic file, such as what program created it, the date it was created, its author, when and by whom it was edited, what edits were made, and, in the case of , the history of its transmission. THE DATA ABOUT THE DATA. Why is Metadata Important? Metadata is used to group, sort, and filter information Creation date gives insight into timelines in a case Last modified date is important as evidence in and of itself Medical records Construction drawings and files Early Case Assessment 16

17 EARLY CASE ASSESSMENT An Optional Phase of Electronic Discovery where the Data Set is Reduced via Culling & Filtering. Costs of Litigation Review can be determined. KEYWORD A word or search term that can be used for search or filtering. Also Keyword Phrases. CULLING Picking out only what you want to keep. This can be done by selecting (for example) file attributes including date ranges, custodians, file types, languages, and server domains. In addition, keyword lists can be used to find and keep documents that are hits. 17

18 CULLING FILTERING Removing what you do not want. This would include removing system files (NIST list file types), other specified file types (audio/video/design), documents that aren t hits on a list of desired keywords, for example. FILTERING 18

19 Processing Also known as Data Extraction & Imaging PROCESSING Native Files are loaded into a system where extraction of text and metadata is done. Deduplication, de-nisting, and Filtering can also be done if no early case assessment was done. DATA EXTRACTION The process of retrieving information on a collection of files in preparation for review. The data extracted is known as metadata, which gives a lot of information on the files so they can be searched and grouped more effectively. 19

20 IMAGING The conversion of Native Files to Paper-Like Format (such as PDF or TIFF) to allow for easier redaction, bates-labeling, and production in Legal Software. Imaging is also the conversion of Paper Discovery to Electronic Files (via Document Scanning) OCR Optical Character Recognition The electronic conversion of scanned documents or images of typewritten or printed text into machineencoded/computer-readable text. OCR enables searching of the contents of imaged documents or images. DE-DUPLICATION The removal of an identical file that is stored more than once. This is most often done with s, where more than one person (custodian) has the identical . It is also done with loose files. A good software review tool will identify nearduplicates so they can be reviewed together. 20

21 INDEXING Creation of a data structure that improves the speed of data retrieval operations in a database table. Processing What is Accomplished in this Phase System files are removed (de-nisting) Data is extracted (metadata and text) Embedded files are extracted Indexing is completed Files are de-duplicated can be done by custodian or by case Processing What is Accomplished in this Phase Reports are generated showing how many files were not reviewed/produced for defensibility File types that can t be viewed natively should be imaged at this point (graphics, CAD, etc) Some file types are placeholdered, disclosing that the files were there, but there is nothing to produce (audio or media files) 21

22 Review REVIEW Reading of Documentsto determine responsiveness, privilege, or issues. With good review software, documents can be searched, grouped, and categorized for more efficient review. Review What is Accomplished in this Phase Documents are tagged for responsive or non-responsive for privilege for issues HOT DOCUMENTS identified Expert set 22

23 TAGGING After reading a document, selecting a category to apply to a document example: responsive/nonresponsive, privileged, work product, etc. Tags become searchable metadata. TAGGING Review What is Accomplished in this Phase Document Coding is also done at the same time Classify paper documents Add privilege reasons Add attorney notes 23

24 Review What is Accomplished in this Phase Redactions are completed Notes and highlights can be added to the images REDACTION Covering privileged information or work product so that it can t be read by opposing counsel after production. Note: Good review software also removed the extracted text that was covered. REDACTION 24

25 NATIVE FILE REVIEW The review of files in their Native Formats (the format from the program that created the file) as opposed to reviewing an image of what the file looked like printed. The reviewer would launch every program (Word, Excel, etc) to view the file as it was on the computer from which it was collected. Production Also Known As Document Production PRODUCTION Documents are turned over to opposing counsel, based on agreed-upon specifications. Often this production is accompanied by a load file, which is used to load documents into a document review platform. 25

26 LOAD FILE A flat database file that enables review software to match documents with their images, OCR text, metadata, native files, and Bates Numbers (if applicable). Without this file, your data set is a jumble of files. Required for importing data into Legal Software. Production What is Accomplished in this Phase When Review is complete, you would produce items to Opposing Counsel that are: not previously produced responsive not privileged Production What is Accomplished in this Phase Re-OCR redacted documents - remove redacted text All documents not already imaged are imaged Redactions are burned onto the images The production is Bates Numbered Native files also produced if requested / required Placeholders will show up in the production where applicable 26

27 PRODUCTION FORMAT Documents can be Produced either as Native Files, or in a petrified format (PDF or TIFF), alongside Metadata with Load Files for Legal Software. BRANDING Applying a unique number or alpha-numeric indicator to each page of a production. Also known as Bates Labeling, Bates Numbering, Bates Stamping, E-Bates Labeling, E-Labeling, Electronic Branding. Additional messages, such as Confidential, can be branded on each page, or the beginning of each document. 27

28 BRANDING PRODUCTION BEFORE E-DISCOVERY AFTER E-DISCOVERY Monetizing E-Discovery How RIM Professionals Can Participate 28

29 Monetizing E-Discovery Consultation on Records Management Data Mapping Creation of Retention Policies Cloud-Based Storage & Backup Employee Training Developing Litigation Readiness Plan Monetizing E-Discovery Litigation Scanning Litigation Scanning requirements are different from Archiving or Scan-on-Demand File breaks by staple, clip, etc. OCR Load File Creation Monetizing E-Discovery Data Collection Collection of Records and Files when Litigation occurs (Hard Drives, Back-Up tapes, Network Shares, Cloud, Computers, and Mobile Devices). NOTE Forensic Collection is a SPECIFIC SKILL. Get yourself a Competent Partner. 29

30 Monetizing E-Discovery Data Set Processing Processing of Records and Files when Litigation occurs. NOTE Processing is a SPECIFIC SKILL and requires SPECIAL SOFTWARE. Get yourself a Competent Partner. Monetizing E-Discovery Data Hosting & Review Platform Host the Data Set for your customer Provide SaaS for Document Review & Production NOTE This requires SPECIAL SOFTWARE. Get yourself a Competent Partner. QUESTIONS? Andy Sokol Andy.Sokol@CopyScan.com www. CopyScan.com 1230 S. Andrews Ave Ft. Lauderdale, FL