HOW TO BECOME AN ESI HERO

Transcription

1 HOW TO BECOME AN ESI HERO Taking The Mystery Out Of Ediscovery - Thank you for attending and welcome. Today we are going to talk about ESI and ediscovery, and how you can be an ESI Hero. My name is Kyle Albert. At Foxhound, we ve brought together a combination of legal and information technology experience, so we believe we are well suited to guide you through the complexities of this topic. We started Foxhound to provide top-notch ESI consulting and services to firms that can t afford to have a huge litigation support team in house, and in the process we ve seen first hand how complex litigation can become in this new world of smartphones and cloud computing. Electronically Stored Information Boo! ESI it s a term that terrifies some attorneys because of the challenges they perceive with this type of evidence. And, quite frankly, they may not understand much of the technology and jargon. And when you don t understand something, it IS scary. The best way to reduce or eliminate that fear is to gain understanding. Even today, in 2015, we have a lot of attorneys who are not as knowledgable about technology as they should be. With this presentation, we hope you will get started down the road of becoming more of a technology expert. Let s take a quick look at where we ve come from in terms of discovery.

2 But you may be asking yourself, What? I m a lawyer, not a computer geek. Why do I have to learn all this stuff about technology? Well, you don t HAVE to, but consider these points... But why do I have to learn about all this technology? It s how we communicate Increasingly, communications are electronic (text messages, , video chat, instant message, social media posts).

3 Bill Tolson said in 2011 that 97% of business generated data is electronic. We know this number has risen since then. Source: Golf and Early Case Assessments A Drama. Bill Tolson, July % of business generated data is electronic Source: Golf and Early Case Assessments A Drama. Bill Tolson, July 2011 Your client may not be able to produce relevant information in paper format And, consider this for a moment. If you don t know how to handle ESI in your case, what happens if your client simply can t produce relevant information in paper format? What if the most relevant information is stuck in text message exchanges on their smart phone?

4 And, if opposing counsel has a basic understanding and you don't, you and your client are at a disadvantage. It s not fun when your opponent has leverage over you. Opposing counsel may have that knowledge you lack Courts are requiring ESI Finally, many courts, including the Eastern District of Virginia and state courts in places like Florida, are REQUIRING ESI, so in many cases, you are simply not going to have the choice.

5 You re no longer going to be able to conduct litigation of any complexity without understanding e-discovery." And, if you still aren t convinced, then let s look at what Judge James Francis of New York s Southern District said in a recent panel discussion about technology and e- discovery: he said that he views attorneys who are unaware of the nuances of ediscovery as essentially engaging in a slow career suicide. source: magazine/article/ catch_up_with_tech_or_lose_your_career_jud ges_warn_lawyers/ Hon. James C. Francis IV U.S. Magistrate Judge, Southern District of New York However, not every judge understands the basics either; again, you can be the ESI hero So, some courts are starting to require ESI, but even when that s the case, not every judge understands some of these basics either. That s just another opportunity for you to step up and be a hero. As an example, when courts require searchable ESI, as you know, both sides can withhold certain documents under the protection of attorney-client privilege, but there is some debate amongst judges about what exactly makes up a proper privilege log; you have to provide a reasonable argument for why a certain document is privileged. The key is, you may have to be able to educate the judge on why what the other side provided as their argument isn t sufficient.

6 Offense Two ways to use ESI: Defense Something that many attorneys don t consider is that there are two ways you can use ESI: offensively and defensively. For example, in a normal ediscovery request, you want to learn the other sides rules, so you can make sure they follow their own rules. Ask the other side: how do you preserve your information? What custodians have the data? Is data destroyed periodically? Is the data backed up? On the other side of the coin (defensively) you have to make sure your client understands the rules of preservation to prevent spoliation. Gathering the information early, and then making sure you don t turn over privileged information inadvertently. Of course, you can put in a standard clawback provision in case something is turned over inadvertently, but you can t make the opposing counsel unlearn what they ve learned if you inadvertently disclosed your entire case strategy. Also, you ve got to make sure that whatever YOU are doing falls into acceptable standards for producing ESI. So clearly you are going to be expected to understand the basics of technology and know how to utilize it in all aspects of your career to help your firm, your clients, and your team. So let s talk about how you can roll up your sleeves and start learning. Where to start?

7 One thing I want to be clear about: You don t need to spend years getting the equivalent of a bachelors in information management or computer science. You just need a grasp of the basics. If you feel intimidated, remember: You are smart -- you are a lawyer! This is not too hard for you, even if you think it is. You don t have to try to remember all that we are going to cover today; we are going to provide you a cheat sheet that you can take with you to reference. You don t have to have a CS degree First a quick overview of the process, or at least, the way it usually plays out. The ediscovery Process

8 Information Management VOLUME Electronic Discovery Reference Model Processing Preservation Identification Review Production Collection Analysis Electronic Discovery Reference Model / 2009 / v2.0 / edrm.net Presentation RELEVANCE This is a handy diagram of the process developed by EDRM, an organization attempting to shape standards for ediscovery. This process flows from left to right. As you see across the bottom area, the volume of data is very high at the beginning of the process, but slowly decreases, while data relevance increases. Information management, on the far left, is what companies and individuals do day to day, regardless of litigation. Once litigation starts, or is about to start, then the process really begins with identification of custodians, keywords, systems that may hold relevant data, etc. From there, preservation of the data and collection of the data can begin. Once collected, it needs to be processed, reviewed by attorneys, analyzed, with documents marked as privileged, relevant, non-relevant, etc. Then productions can be made to hand over relevant data to opposing counsel. Finally, the presentation of the data in trial, or deposition is at the end. Source: edrm-stages-explained First, I m going to explain some of the terms you hear related to ESI Some tech terms...

9 While the exact amount of text data in a kilobyte (KB) or megabyte (MB) can vary depending on the nature of a document, a kilobyte can hold about half of a page of text, while a megabyte holds about 500 pages of text. Text in a digital file is converted to binary data that indicates letters and numbers through expressions of ones and zeros. Larger files hold more of this data, which in turn is the equivalent of more typed information. To help make data more accessible and simplified, groups of bits are joined into bytes; one byte is comprised of 8 bits. A set of 8 bits was chosen because this provides 256 total possibilities, which is sufficient for specifying letters, numbers, spaces, punctuation and other extended characters. This very sentence, for example is composed of 125 bytes because there are 125 letters, digits, spaces and punctuation marks. Keep in mind that this only represents pure text; some word processing programs include other sorts of formatting data, and therefore the file sizes become greater than just the number of characters in the file. Text The first thing there is often confusion about is data sizes (megabyte, gigabyte, etc). And the easiest way to understand data sizes is to relate it to real things. If we are talking about text, just plain text, then here is what those terms really relate to: One byte, is one text character One kilobyte is about 1/2 page of text One megabyte is about one thick book One gigabyte is about 1,000 thick books One terabyte is about 1 million thick books A 1 byte 1 kilobyte 1 megabyte 1 gigabyte 1 terabyte Now, if you are talking about other kinds of data, like video or audio, those comparisons don t hold, but usually in litigation we are dealing with text, so these are the best ones to know. Information Management Electronic Discovery Reference Model Processing Preservation Identification Review Production Collection Analysis Presentation Now that we understand the difference between a megabyte and a gigabyte, let s look at the early stages of the ediscovery process. In this phase, you are working with your client to identify the data they have that needs to be preserved and collected. But, you are also thinking through what you need to ask for from the other side, what format you want it produced in, what date ranges, keywords, and custodians are you most interested in seeing data from? VOLUME Electronic Discovery Reference Model / 2009 / v2.0 / edrm.net RELEVANCE

10 Digital Forensics aka Computer Forensics Acquisition (aka imaging) Analysis Reporting Once identification has been completed, you start with preserving and collecting the data from your client, and that is where digital forensics come in. You are probably familiar with forensic methods, so you can make a great guess what digital forensics refers to. To quote Wikipedia: The goal of computer forensics is to examine digital media in a forensically sound manner with the aim of identifying, preserving, recovering, analyzing and presenting facts and opinions about the information. In most cases, when dealing with civil or commercial litigation, the term refers to three main activities: acquisition, analysis, and reporting on data that is potentially relevant. Sometimes, the acquisition of the data involves what is called imaging. Imaging just refers to making an exact duplicate, or a mirror image of a given media. You can image an entire hard drive, but often, that is overkill and is going to drive the costs up. Usually, collecting a forensically sound copy of the custodian s user folder on their computer, or preserving their account, is sufficient. Hosting - storing data and secure access You ve now gotten your ESI collection expert to help you collect all the potentially relevant data from your client now, where should you store it? This is where the term hosting often enters the picture. Someone, either your firm (if you handle your ediscovery in house) or your ESI vendor, can host the data for you on servers, which would allow your reviewers to access that data from multiple computers, possibly even remotely over the web. If you have a small enough data set, you could simply load it on a single computer in your office, and forgo the hosting option, which would be cheaper, but for any ediscovery process that will involve more than a very small amount of data, you will probably want multiple reviewers to be able to access the data at the same time. Hosting can get you that option.

11 At this point, you are moving into the processing, analysis, and review phase. Electronic Discovery Reference Model Processing Preservation Information Management Identification Review Production Presentation Collection Analysis VOLUME Electronic Discovery Reference Model / 2009 / v2.0 / edrm.net RELEVANCE Processing Identify the data in hand Capture info Reduce Index Before review can begin, the data has to be processed. There are specialized software applications that are built just for this purpose, and some of the steps can be automated, but a surprising amount of human effort is involved with processing the data. Compressed files must be uncompressed, duplicates should be identified, all the data should be indexed (which will allow text searches to be run on it), and more. If this step is done thoroughly, it can greatly decrease your review costs, as you will have weeded out much of the nonrelevant files before review even begins.

12 At this point, many people ask about Predictive Coding, or as it is sometimes called, Technology Assisted Review. Predictive Coding aka Technology Assisted Review What is it? Specialized computer programs Utilize advanced algorithms Seed documents What is Predictive Coding: Predictive Coding is simply a term used to describe what some argue is a reliable method to avoid having a human review each and every document in an ediscovery matter. Specialized software and advanced search algorithms to attempt to find relevant documents. It involves the use of a seed set of documents. The attorney reviews a sampling of the documents to create a code set of search words. This set of documents is used to create a seed set, that the computer application can analyze the words and characteristics of those documents to automatically attempt to find relevant documents.

13 Better than simple keyword searches? The experts disagree Many experts say that predictive coding is simply a fancy way to dress up the same techniques of using keyword searching. The only different being, you train the computer to look for certain keywords, and to exclude certain other keywords. Amongst TAR experts, there are two camps, who disagree strongly about the best methods for effective TAR: Random Samplers and Multi-Modulars. Confusion reigns in this space. The classically legally vague test is simple: if the use of predictive coding is challenged in a case before me, I will want to know what was done and why that produced defensible results. (Judge Peck Search, Forward, L. Tech. News, Oct ) In Judge Peck s opinion, computer-assisted coding should be used in those cases where it will help secure the just, speedy, and inexpensive Bottom line: It is coming, but it won t make ediscovery easy The bottom line is that this will very likely not be the holy grail that some are trying to make it out to be. It is an absolute must that counsel will need to become educated in this emerging area. It is equally important to partner with a competent ESI company while ensuring that company is not over billing the client.

14 Review Where attorneys spend the most time Digital WarRoom Even in cases where you use technology assisted review, it is likely that the review phase is where the attorneys are going to spend the most amount of time with ESI. At this phase, your choice of review platform becomes supremely important. When we say platform, we mean the software application (or set of applications) that will allow you to manage and review the documents. The choice of ediscovery platform will affect the workflow that you and your team develop, and it can affect how efficient you will be. It also dictates to some extent what kinds of documents you can review and what format data should be produced in from the opposing counsel. These are all things you should consider before selecting an Discovery vendor, if you choose to go that route. This is a screenshot of the ediscovery platform that Foxhound uses, called Digital WarRoom, just so you can see an example of how a review tool might work. In the main area you can see a list of the documents for review, and on the bottom is a document preview that allows the reviewer to examine the original document. On the left are various filters you can set to show or hide different documents, or conduct text searches.

15 Electronic Discovery Reference Model However your team has identified relevant documents, you have to produce them to deliver them to opposing counsel. Processing Preservation Information Management Identification Review Production Presentation Collection Analysis VOLUME Electronic Discovery Reference Model / 2009 / v2.0 / edrm.net RELEVANCE Productions Delivering relevant ESI Once review is complete, and you ve marked documents as responsive, or privileged, or whatever system you ve come up with to classify the data, at some point you are going to have to deliver the responsive documents to the adverse party. This is where productions come in. But, you aren t going to deliver box after box of paper documents remember, this is the digital age! Not this kind of delivery

16 More like this Instead, you will deliver the data on you guessed it, digital media. The exact method and format of delivery is something you MUST negotiate in your meet and confer, so make sure you address it. Otherwise opposing counsel is not going to make it easy for you. Productions But now we get into some more of those confusing terms when people start talking about ediscovery productions, they refer to image or native productions, or sometimes TIFF or near-native. What the heck to all those mean? Native versus Image or TIFF or Near-Native

17 First, let s think back to where else we heard the term image. Isn t that what we were discussing when we talked about forensic data collection? How is a forensic image of media different than an image production? Forensic Image of media vs. Image Production Not quite the same... Well, they aren t really the same, but they do both involve making a copy but, both involve making a copy

18 Native = Original Image or TIFF = Converting original to picture file Near Native = Not imaged, but not original So, first let s define what we mean by Native. Native refers to the original form of the file. If the original file was an Excel spreadsheet, then in a native production, the produced document will still be an Excel spreadsheet. Not so if we image, or TIFF the file. In that case, we are converting the original native document into a picture, similar to what happens when you fax a document. The fax machine makes a picture out of the document to transmit it to the fax machine on the far end. Near native is a slightly harder one to understand it s not a picture like the image production, but it isn t in its original form, either. Usually it means it has been converted to HTML, which for some file types, produces a copy that is very close to the original format. TIFF = Tagged Image File Format Let s look a little closer at this image term, and TIFF. TIFF stands for Tagged Image File Format. TIFF just means the file is a picture, similar to a JPEG if you are familiar with that file extension. Most digital cameras take pictures in JPEG format. TIFF is very similar. So, again, if you are making an image production, you are taking that original file format, converting it like a scanner or fax machine does, and making an image of that file. Most often, in ediscovery productions, TIFF is the format of that image.

19 Example of TIFF page Here is an example of a TIFF image. If you ve ever scanned in a document, or received one from someone via , then you have a good idea of what a TIFF image document looks like. Note that you can see the handwriting here from the original document. So, why are there these different production options? Why don t we just use one all the time, for everything? Why have different production options?

20 Some files are better kept native But native files can t be individually numbered or endorsed Can t redact Well, there are advantages and disadvantages to the different options. First of all, some files don t convert well to image at all large, complex Excel spreadsheets are a good example. But, leaving them as native means you probably can t stamp a bates number or other endorsement on each page. Also, you won t be able to redact certain portions of the document. Finally, native files might require some exotic, expensive proprietary application to open them and see the contents May require proprietary software to open Imaging takes more time On the other hand, imaging each file takes MUCH longer. And because of that, it means an image production can be much more expensive. Today, native is preferred for time and cost reasons, but often people take a hybrid approach where some documents are native and some are imaged. This is something to consider up front at the beginning of the case. And, more money

21 Finally, you may have to present the ESI in court, or in depositions. Electronic Discovery Reference Model Processing Preservation Information Management Identification Review Production Presentation Collection Analysis VOLUME Electronic Discovery Reference Model / 2009 / v2.0 / edrm.net RELEVANCE The Presentation Workflow We don t have time to delve into the details of presentation, but again ERDM.net has some useful information on this part of the process, and an ESI expert can really help here. From ERDM.net

22 I said earlier we weren t going to talk in great detail about the review process, but I do want to say a bit about privilege logs. A few thoughts on privilege If you ve ever had to manually generate and track a privilege log, you know this can be a painful and tedious process to say the least. The Old Way

23 A good review software package can greatly streamline that process. The platform we use, Digital WarRoom, has a nice tool built in for capturing information on privileged documents. You can enter key information when you mark an item as privileged. It will automatically track that info for you as you go through your review, and then build your priv log for you at the end, making the whole experience much faster and more accurate. The New Way So, do you know enough now to be an ESI hero? Do you know enough now, after everything we ve covered, to consider yourself an ESI hero?

24 Well... maybe a sidekick could help Maybe you need a sidekick ediscovery cases are more expensive but, you don t have to get ripped off ediscovery cases often are more expensive, but that doesn t mean you have to spend a fortune or feel like you ve been ripped off by a sleazy vendor

25 A trusted ESI expert can help Finding the Right Consultant - They need to understand the law - They also need to understand the technology - You want to bring this person in as early as possible, because they can help you navigate the issues - What are the information systems we are dealing with for our client? - How much ESI do we have? What types? - What types of ESI do we request of the other side? - Different service providers will use different pricing models - Some providers charge on a per GB basis for some services - This makes smaller data sets very expensive, so see if they will provide a fixed-fee bid - A trusted ESI expert can help you understand the nature of the data and how to judge how many GB of data to expect Some things that will affect the budget: How much data will there be? How many custodians? How will the data be collected? How many reviewers need to access the data? How long will collection/analysis/review take? Here are some things to consider that will affect your budget. How much data will there be? How many custodians? How will the data be collected? How many reviewers need to access the data? How long will collection/analysis/review take? The more of these questions you can answer upfront, the fewer surprises you ll have when you get well down the road

26 Things to ask an ediscovery provider: Do they charge per GB for any services? If so, which services? Do they provide fixed-fee bids for smaller cases? Do they measure data size before processing or after? Do they charge for data hosting? Do they charge for each user who needs access? Standby or hold rates for reviewers? Ask these kinds of questions of any potential vendor. It will help you determine if they are going to be upfront and transparent, or if they are the kind of vendor who will try to muddy the waters to squeeze more money out of you. Some metrics to help you prepare your budget when looking for an ediscovery vendor (Courtesy of GGO) Useful Metrics to Help You Budget Courtesy of GGO, LLC

27 PDF/Office Other 2% is about 80% of all custodian data; PDF and Office documents, 18%; Other 2% 18% Custodian data 80% Average review speed: unique documents/hour Average review speed: 100 to 150 unique documents per hour

28 Only about 30% of data collected is reviewed Reviewed Only about 30% of data collected is reviewed Between 7% and 14% of data collected is produced Produced Between 7% and 14% of data collected is produced

29 So, to wrap this up, you can set yourself apart from other attorneys by embracing the future and becoming an ESI hero. Once you embrace the future, you can start to look at social media, text messages, and how you can use such ESI to help your client. We ve brought some reference sheets that you can keep handy and you can look up what you need. These are included in the handout materials. Remember, you don t have to memorize all these terms and concepts, just be familiar with them, and know where you can read more. Thank you for your attention. We d be happy to take questions now. info@fxhnd.com

30 ESI Resources Useful web sites and articles to reference or just increase your knowledge. Keep this document handy for future use! Learning more about ESI and ediscovery General sites to keep up the technology issues facing attorneys File Extension Reference

31 The Electronic Discovery Reference Model (this information comes from the EDRM.net web site) The EDRM diagram represents a conceptual view of the e-discovery process, not a literal, linear or waterfall model. One may engage in some but not all of the steps outlined in the diagram, or one may elect to carry out the steps in a different order than shown here. The diagram also portrays an iterative process. One might repeat the same step numerous times, honing in on a more precise set of results. One might also cycle back to earlier steps, refining one s approach as a better understanding of the data emerges or as the nature of the matter changes. The diagram is intended as a basis for discussion and analysis, not as a prescription for the one and only right way to approach e-discovery. Below are summary explanations of each EDRM stage. More detailed information can be found at " Identification Phase Aim: In the identification phase the legal team develops and executes a plan to identify and validate potentially relevant ESI sources including people and systems.

32 Identification is used to identify potential sources of relevant information. These sources may include business units, people, IT systems and paper files. Learning the location of potentially discoverable data is necessary to issue an effective legal hold. Identification should be as thorough and comprehensive as possible. Conduct interviews with key players to identify what type of records they have that may be relevant. Interviews with IT and records management personnel may be used to identify how and where the relevant data is stored, retention policies, inaccessible data and what tools are available to assist in the identification process. The scope of data potentially subject to preservation and disclosure may be uncertain in the early phases of a legal dispute. The nature of the dispute itself and the individuals involved may change as the litigation progresses. The identification team should anticipate change and have a procedure in place for capturing any newly identified information. Identification requires diligent investigation and analytical thinking. The very short time frames typically imposed by litigation are not likely to be met without an internal champion who can authorize and direct internal experts and custodians to treat identification as a business priority. Preservation Phase Aim: When duty to preserve is triggered, promptly isolate and protect potentially relevant data in ways that are: legally defensible; reasonable; proportionate; efficient; auditable; broad but tailored; mitigate risks. Goal: Mitigate risks.

33 Collection Phase The collection methodology for acquiring ESI in litigation matters, governmental inquiries, and internal investigations in a legally defensible manner. Collection is the acquisition of potentially relevant electronically stored information (ESI) as defined in the identification phase of the electronic discovery process. The exigencies of litigation, governmental inquiries, and internal investigations generally require that ESI and its associated metadata should be collected in a manner that is legally defensible, proportionate, efficient, auditable, and targeted. The process of collecting ESI will generally provide feedback to the identification function which may impact and expand the scope of the overall electronic discovery process.

34 Processing Phase Aims: Perform actions on ESI to allow for metadata preservation, itemization, normalization of format, and data reduction via selection for review. Goal: Identify ESI items appropriate for review and production as per project requirements. At a point in the e-discovery lifecycle following preservation, identification and collection it often becomes necessary to process data before it can be moved to the next steps of the lifecycle. Some primary goals of processing are to discern at an item-level exactly what data is contained in the universe submitted; to record all item-level metadata as it existed prior to processing; and to enable defensible reduction of data by selecting only appropriate items to move forward to review. All of this must happen with strict adherence to process auditing; quality control; analysis and validation, and chain of custody considerations. Data may arrive at the processing stage in various formats which then need to be restored before subsequent work can be done (tapes, backups, etc.); individual files and may need to be extracted from container files (PST, NSF, zip, rar, etc.); and certain types of data may need to be converted to facilitate further processing (legacy mail formats; legacy file formats). During these processing stages individual items are cataloged and their associated metadata is captured. Rarely is it necessary to review all items that are submitted for processing. A number of data reduction opportunities are usually available. Processing is further broken into four main subprocesses, namely: Assessment; Preparation; Selection; and Output. Assessment may allow for a determination that certain data need not move forward; Preparation involves performing

35 activities against the data which will later allow for specific item-level selection to occur (extraction, indexing, hashing, etc.); Selection involves de-duplication; searching; and analytical methods for choosing specific items which will be moved forward; Output allows for transport of reviewable items to the next phases of the lifecycle. Analysis Phase Aim: For litigation teams to be able to make informed decisions about strategy and scope through reliable methods based on verified data. While Analysis may appear on the EDRM Framework after Review, it is really deployed in many phases of discovery as well as pre-discovery. For this reason, the second level framework Analysis Phase Diagram, shown above, reveals all of the phases of the EDRM Framework under the Analysis components.

36 As e-discovery tools and processes have matured, sophisticated analytics methods have been put to use in aid of more and more of the phases of discovery, depicted in the EDRM framework. When the model was originally conceived, the focus was on the analysis of the collected documents to make it easier to cull documents and provide increased productivity during the review step. More recently, all types of analytics are being used to increase productivity through the whole process. The Analysis Phase Diagram attempts to show, in very broad terms, the areas in which analysis is used within the context of discovery and pre-discovery. Review Phase Aim: To gain an understanding of document content while organizing them into logical subsets in an efficient and cost effective manner. Develop facts, reduce risk, reduce cost, leverage technology, facilitate collaboration and communication. Document review is a critical component to most litigation and is used to identify responsive documents to produce and privileged documents to withhold. It is the time where the legal team can begin to gain a greater understanding of the factual issues in a case and where legal strategies can emerge and begin to develop based on the type of information that is found in the collection of documents. There will inevitably be different strategies implemented for reviewing documents in preparation for production versus documents produced by opposing counsel, however the common thread is the need (a) to understand the scope of the review, (b) to put in place supervision and procedures for managing the reviewers and (c) to select the appropriate vendor, tools and platform for the review. Electronic discovery, with its enormous volume of data, can seem daunting. The good news is that significant improvements in data storage, database and search technology, and review application functionality are providing increasingly efficient options for handling the volume of

37 data and streamlining the review process. In addition, emerging search technologies that use methods like concept-based searching, linguistic pattern recognition and other areas that move beyond traditional keyword searching are now being used for initial culling of data as well as to provide supplemental search capabilities for different stages of the document review. A general knowledge of tools and trends has become an important part of the job responsibilities for those charged with preparing for a document review. Production Phase Aim: To prepare and produce ESI in an efficient and usable format in order to reduce cost, risk and errors and be in compliance with agreed production specifications and timelines. With the unprecedented increase in the amount of electronically stored information (ESI) that is being created and stored in the corporate community, there has been a corresponding increase in focus on how the data that has been collected and reviewed is ultimately produced in civil litigation and regulatory investigations. Because of the complexity, the potential costs and the significant risks associated with producing ESI, the topic has been addressed in a growing number of articles, white papers and judicial opinions. As a measure of the significance of the topic, production of ESI is addressed directly in the Federal Rules of Civil Procedure which were amended effective December 1, For example, Rule 26(f) sets an expectation that the method and format by which ESI is to be produced should be considered and negotiated by the parties early in the discovery process. The production of ESI continues to present challenges in the discovery process even though specific rules have been drafted, commented on, redrafted and approved to address the issues.

38 Presentation Phase Aim: Displaying ESI before audiences (at depositions, hearings, trials, etc.), especially in native & near-native forms, to elicit further information, validate existing facts or positions, or persuade an audience. Goal: Develop facts, leverage technology, facilitate communication and persuade. The presentation of electronically stored information can be a challenge for attorneys and paralegals. In the past exhibits were presented in paper form and still are in many cases today. Technology has developed over the last decade making it easier to present exhibits in nearpaper or image format. Due to the nature of electronically stored information and the advent of native and near native document productions, some cases now require the legal team to present exhibits in native format. The diagram above provides guidelines for presenting electronically stored information at depositions, arbitrations or at trial. There is a great deal of commonality in presenting exhibits for any of these situations but where needed, special considerations for depositions, arbitration or trials have been included and designated as such.