Post Process

Everything to do with E-discovery & ESI

Archive for November, 2007

Mini Primer on E-Discovery

Posted by rjbiii on November 30, 2007

Metro. Corp. Counsel has posted an article giving a nice, concise overview of the electronic discovery process, including steps to take before a dispute begins:

Establish an ESI task force comprised of members from the legal department, IT, records, outside counsel and an ESI vendor. This team should begin by comparing paper retention periods to that of electronic data. In addition, they should also familiarize themselves with the network environment and the appropriate locations to preserve and collect data when needed. The team should then focus on streamlining and minimizing the preservation and collection process, and removing personal and administrative garbage from business records.

The article breaks e-discovery down into these categories:

  • Proactive Pre-disputes Steps to take
  • Preserving Data
  • Comparison of Preservation v. Collection
  • Processing of Digital Evidence
  • Review
  • Production

It’s a solid article, given the space constraints. I might have added a bit on identifying data sources and key players, which one must do before preservation, but that’s nit picking.

Posted in Articles, Discovery | Tagged: , | Leave a Comment »

Google Search gets Personal

Posted by rjbiii on November 30, 2007

Google is adding functionality to its searches that will allow users some input into the ranking and and sorting of results:

Google has rolled out a new option in its Labs-based experimental search program which allows you to rank and re-order search results. The new experiment is reportedly showing up for select users only, but the help page says that the goal is to allow you to “influence your search experience by adding, moving, and removing search results.”

Those of us in EDD are always looking for ways to tweak searches to better fit them to our clients’ needs. It will be interesting to see how easily and effectively users are able to influence the accuracy of these searches, and how soon such technology makes it into review platforms and the like.

Posted in Articles, Search Engine Technology, Search Protocols | Leave a Comment »

Case Blurb: Parkdale; Court examines production of Lotus Notes documents for undue burden

Posted by rjbiii on November 29, 2007

According to the Plaintiffs’ briefs, the disputed emails are presently in LotusNotes format, rather than in a less accessible backup media. Although the Plaintiffs did not offer during the hearing a specific cost projection for converting and searching the subject emails, they contended in their briefs that the cost of producing Mr. Smeak’s emails was no more than $20,000, a fraction of the expense at issue in Zubulake, 217 F.R.D. at 316, where the cost of producing 5 sample disks alone was $19,000. Taking into account the factors listed in Fed. R. Civ. 26(b)(2)(C)(iii), including the amount in controversy ($3 million policy limit less $280,319.00 previously paid to reimburse Plaintiffs for a portion of their costs of defense), the parties’ apparent resources, and the importance of the proposed discovery in resolving critical factual issues, the Plaintiffs have not articulated a sufficient basis to relieve them of the obligation to produce these emails. Accordingly, the Plaintiffs’ objections to producing these documents, as expressed in their briefs and renewed in a modified fashion during the hearing, are overruled.

Parkdale America, LLC v. Travelers Cas. & Surety Co. of Am., 2007 WL 4165247 (W.D.N.C. Nov. 19, 2007)

Posted in 4th Circuit, Case Blurbs, email, Magistrate Judge Carl Horn III, Reasonably Accessible, Undue burden or cost, W.D.N.C. | Tagged: , , | Leave a Comment »

Case Blurb: Parkdale; Potential waiver of privilege

Posted by rjbiii on November 29, 2007

[E]ven if relevant, [the party claims] that the requested information and documents are protected by attorney/client and/or attorney work product privilege. Counsel for the Plaintiffs conceded, however, that at least some responsive documents generated by the Plaintiffs in the ordinary course of business may have been taken by [attorneys] Reed Smith, LLP during the antitrust investigation and remain in their possession. Some of the otherwise arguably privileged information may have also been disclosed to third parties (e.g., opposing counsel and parties in the underlying antitrust actions), in a manner which would constitute waiver, thus rendering formerly protected material presently discoverable.

Parkdale America, LLC v. Travelers Cas. & Surety Co. of Am., 2007 WL 4165247 (W.D.N.C. Nov. 19, 2007).

Posted in 4th Circuit, Case Blurbs, Magistrate Judge Carl Horn III, Privilege, W.D.N.C. | Tagged: , | Leave a Comment »

Initial steps to implement a global records management system

Posted by rjbiii on November 29, 2007

DataKos blog has posted some helpful tips on how to prepare for implentation of a global records and information management system:

There is no one-size-fits-all template for a professional services RFP, and certainly not with regards to implementing a global records and information management program. If you decide to use a template from your friends in procurement or one you find online, certain attributes should be included in an RFP when undertaking a project of importance.

The post discusses hiring a consultant for a gaps analysis, and offers some excellent project management tips.

Posted in Articles, Data Management | Tagged: | Leave a Comment »

Post Process is blawg of the day at Inter-Alia

Posted by rjbiii on November 28, 2007

Inter-Alia, a blog about researching legal issues on the net, features us today as their blawg of the day. Many thanks!

Posted in Site News | Leave a Comment »

PC World article discusses data management

Posted by rjbiii on November 21, 2007

Although the main theme of the story is about the challenges of data management, it begins with the statement that many don’t trust the technology behind EDD and document management:

But Robert Eisenberg, vice president of e-discovery consulting at Capital Legal Solutions of Falls Church, Virginia, raised concerns about technologies such as software that manages document retention and litigation workflow. “I don’t want to sound like a Luddite, but I actually think there’s a danger on relying on tools that are supposed to be doing things that you’re not monitoring,” he said.
Many companies are looking for the Holy Grail of technology that takes care of e-discovery issues without much human intervention, but often what’s needed when a company is facing a lawsuit and needs to track down information is face-to-face contact, Eisenberg said. “The convergence we need is a convergence of grey matter, the way people think of an existing technology, rather than looking for that Holy Grail,” he said. “There’s a danger in even looking for it.”

There are a couple of points I’d like to make here. First, I agree that automating the process as much as possible is an important goal, but I don’t consider it the holy grail. That title, in my humble opinion, is reserved for actually processing files (all file types, thank you) correctly. I’ve seen applications that can’t reach embedded files, I’ve seen some that can’t handle contained files (files within zip files, for example); I’ve seen databases dismissed without being searched; etc…etc…etc…

Get the processing down while you’re traveling the yellow brick road to automation.

There are those progressives who think that the Mr. Eisenbergs of the world need to get with the program:

[Orca Tech co-founder Herbert] Roitblat also made a pitch for tools that search and group documents when corporations are required by courts to save information. “The days of going through page by page by page … those days are gone,” he said. “Nobody can afford it.”

It is true that so-called linear review is often unmanageable in many cases, but I am, nevertheless, sympathetic to those attorneys who want their eyes on every document…after all, they are dealing with the very evidence from which they will build their case in court.

[HT: Information Governance Engagement Area]

Posted in Articles, Data Management, Document Retention | Leave a Comment »

Case Blurb: Scotts Co.; Forensic Copies not required by amended FRCP

Posted by rjbiii on November 19, 2007

The 2006 amendments to Rule 34 of the Federal Rules of Civil Procedure simply clarify “that discovery of electronically stored information stands on equal footing with discovery of paper documents.” Fed.R.Civ.P. 34 Advisory Committee’s Note on 2006 Amendments. Consequently, without a qualifying reason, plaintiff is no more entitled to access to defendant’s electronic information storage systems than to defendant’s warehouses storing paper documents.

The discovery process is designed to be extrajudicial, and relies upon the responding party to search his records to produce the requested data. In the absence of a strong showing that the responding party has somehow defaulted in this obligation, the court should not resort to extreme, expensive, or extraordinary means to guarantee compliance. Imaging of computer hard drives is an expensive process, and adds to the burden of litigation for both parties, as an examination of a hard drive by an expert automatically triggers the retention of an expert by the responding party for the same purpose. Furthermore, as noted above, imaging a hard drive results in the production of massive amounts of irrelevant, and perhaps privileged, information. Courts faced with this inevitable prospect often erect complicated protocols to screen out material that should not be part of discovery. See, e.g., Playboy Enters., 60 F.Supp.2d [1050, 1054 (S.D.Cal.1999) (appointing court’s expert to conduct examination). Again, this adds to the expense and complexity of the case.
This court is therefore loathe to sanction intrusive examination of an opponent’s computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information. Such conduct is always a possibility in any case, but the courts have not allowed the requesting party to intrude upon the premises of the responding party just to address the bare possibility of discovery misconduct.

The Scotts Co. v. Liberty Mutual Ins. Co., 2007 WL 1723509 (S.D. Ohio June 12, 2007) (quoting with approval Diepenhorst v. City of Battle Creek, 2006 U.S. Dist. LEXIS 48551, *10-11 (W.D. Mich. June 30, 2006).)

Posted in 6th Circuit, Case Blurbs, Computer Forensics, Data Collection, Magistrate Judge Norah McCann King, S.D. Ohio | Tagged: , | Leave a Comment »