Post Process

Everything to do with E-discovery & ESI

Archive for September 19th, 2007

Datakos Blog: Track Litigation Holds

Posted by rjbiii on September 19, 2007

DataKos blog has posted an article seeking to persuade organizations to develop a litigation hold database:

Effective compliance with the Federal Rules of Civil Procedure and the Federal Obstruction of Justice Law is unattainable without the existence of an enforceable records and information management program.

The blogger says that initially excel or access could be used to do the job, but that ultimately an organization should look for a solution that is accessible to in-house personnel and outside counsel for both review and update. He suggests MS Sharepoint as an option.

The presence of such a tool is important for many reasons. It allows e-discovery team members and others to track the various collection and processing projects, while helping out in the resource management end by indicating to IT or Records Management when a hold is released and document retention policies can be resumed (and deletion of old records can finally occur-freeing up space). Furthermore, if the database tracks individual projects, you can also insure that vendors who have possession of what may be very important information, destroy the data in a timely fashion. This helps minimize the possibility that sensitive information could be accidentally released.

Posted in Best Practices, Data Management, Litigation Hold | 1 Comment »

State CIO Association warns members to improve e-discovery processes

Posted by rjbiii on September 19, 2007

Government Computer News has an article describing the findings of an e-discovery working group for state CIO’s:

State chief information officers need to better prepare for electronic discovery as they take on more responsibility for proper management of their states’ information assets, a new briefing from the National Association of State CIOs states.

E-discovery is an important issue for the public and private sectors as more critical business information is moved into electronic form, NASCIO officials said, adding that successful location and retrieval of electronic information can be critical to the outcome of a lawsuit.

The brief suggests that e-discovery “stakeholders” include such parties as “state archivists, legal counsel, records managers and agency business leaders.” It goes on to recommend that strengthen solutions for e-mail archiving and searching, and content management:

CIOs must also boost efforts to automate e-mail capture and federated search, which involves the simultaneous search of multiple online databases, said Peter Berkel, global solutions leader for the public sector at EMC, a leading storage and information management company. Berkel is also a member of NASCIO’s E-Discovery Working Group.

In addition, CIOs must better manage content and deploy flexible strategies to accommodate new rules, legislation and technology related to e-discovery, he added.

Pre-dispute preparation, while not the most exciting thing in the world, is far less painless than learning on the fly after a dispute has already occurred.

Posted in Articles, Best Practices, Data Management | Leave a Comment »

Case Blurb: Lorraine; Consequences of Counsel’s lack of diligence with respect to articulating all grounds for admitting ESI

Posted by rjbiii on September 19, 2007

Establishing that ESI has some relevance generally is not hard for counsel. Articulating all of what may be multiple grounds of relevance is something that is important, though not as frequently done as it should be. Accordingly, evidence that might otherwise be admitted may be excluded because the proponent put all his or her eggs in a single evidentiary basket, which the trial judge views as inapplicable, instead of carefully identifying each potential basis for admissibility. Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Ironically, however, counsel often fail to meet even this minimal showing when attempting to introduce ESI, which underscores the need to pay careful attention to this requirement. Id.

Indeed, the inability to get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation. Id.

Posted in 3d Circuit, Admissibility of ESI, Authentication, Case Blurbs, D. Md., Magistrate Judge Paul W. Grimm | Leave a Comment »

Case Blurb: Lorraine; Authenticating ESI under FRE 901(b)(9)–description of a system or process

Posted by rjbiii on September 19, 2007

Rule 901(b)(9) recognizes one method of authentication that is particularly useful in authenticating electronic evidence stored in or generated by computers.

It authorizes authentication by “[e]vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.”

This rule was “designed for situations in which the accuracy of a result is dependent upon a process or system which produces it.”

  • (References In Re Vee Vinhnee, 336 B.R. at 446 (“Rule 901(b)(9), which is designated as an example of a satisfactory authentication, describes the appropriate authentication for results of a process or system and contemplates evidence describing the process or system used to achieve a result and demonstration that the result is accurate. The advisory committee note makes plain that Rule 901(b)(9) was designed to encompass computer-generated evidence …”)).
  • (References Weinstein at § 901.12[3] (“Computer output may be authenticated under Rule 901(b)(9)…. When the proponent relies on the provisions of Rule 901(b)(9) instead of qualifying the computer-generated information for a hearsay exception, it is common for the proponent to provide evidence of the input procedures and their accuracy, and evidence that the computer was regularly tested for programming errors. At a minimum, the proponent should present evidence sufficient to warrant a finding that the information is trustworthy and provide the opponent with an opportunity to inquire into the accuracy of the computer and of the input procedures.”)).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007)

Posted in 3d Circuit, Admissibility of ESI, Authentication, Case Blurbs, D. Md., FRE 901(b)(9), Magistrate Judge Paul W. Grimm | Leave a Comment »