10 Critical Decisions For Successful E Discovery Part 2

10 Critical Decisions For Successful E Discovery Part 2



10 Critical Decisions for​ Successful E-discovery Part 2
The Information​ Management Journal/September / October 2018- Todayีs explosion​ of​ electronic data, coupled with the December 2018 amendments to​ the Federal Rules of​ Civil Procedure (FRCP) concerning electronically stored information​ (ESI), requires information​ and​ legal professionals to​ expand​ their knowledge about handling electronic discovery .​
The recent changes to​ the FRCP include:
* Definitions and​ safe harbor provisions for​ the routine alterations of​ electronic files during routine operations such as​ back ups [Amended Rule 37(f)]
* Information​ about how to​ deal with data that is​ not reasonably accessible [Amended Rule 26(b)(2)(B)]
* How to​ deal with inadvertently produced privileged material [Amended Rule 26(b)(5)]
* ESI preservation​ responsibilities and​ the pre-trial conference .​
[Amended Rule 26(f)]
* Electronic file production​ requests [Amended Rules 33(d), 34, 26(f)(3), 34(b)(iii)]
There are many opinions about how ESI should be planned for, managed, organized, stored, and​ retrieved .​
Some of​ the available options are extremely costly in​ terms of​ their required financial and​ time commitments .​
Constantly changing technologies only add to​ the confusion​ .​
One area of​ confusion​ is​ the distinction​ between computer forensics and​ electronic discovery; there is​ a​ significant difference .​
These are described in​ the sidebar Computer Forensics vs .​
Electronic Discovery.
Making the Right Choices
Successfully responding to​ e-discovery within​ the constraints of​ the amended FRCP requires organizations to​ make many critical decisions that will affect the collection​ and​ processing of​ ESI.
Processing Choices
Because of​ the volume of​ information​ available in​ even the smallest of​ collections, it​ becomes necessary to​ manage the process to​ control time and​ budget .​
The following questions need to​ be answered:
1 .​
Who are the key people?
The people important to​ a​ case should be identified .​
These key individuals include not only executives, but also assistants and​ other support personnel from the technology, accounting, sales and​ marketing, operations, and​ human resources departments.
2 .​
Where are the files located?
All the potential locations of​ electronic evidence should be identified .​
These include home computers and​ all computers that a​ key person​ would use elsewhere (such as​ a​ girlfriend or​ boyfriendีs home), cell phones, PDAs, Blackberries, and​ any other digital device that might be used .​
It is​ important to​ note that MP3 players, such as​ iPods, can also be used to​ store documents or​ important files.
3 .​
How can the collection​ be culled?
Methods for​ limiting the number of​ files collected may include collecting only those in​ certain​ date ranges or​ only those containing selected key words or​ terms .​
this​ can be done either before or​ after an​ entire hard drive is​ collected forensically .​
Known file filtering can also reduce the collection​ by removing standard application​ files common​ to​ all computers (such as​ the Microsoft Windowsจ logo file).
4 .​
How should password-protected/encrypted files be handled?
Encrypted files cannot be processed until the encryption​ is​ broken .​
in​ some instances, files with exact or​ similar names may be available without using passwords or​ encryption​ .​
File locations may also provide information​ about the value decryptions provide .​
Decryption​ may require significant time .​
Sometimes a​ password can be obtained simply by asking for​ it, so this​ should be the first step .​
if​ that fails, using a​ subpoena may be successful.
5 .​
How should duplicate and​ near-duplicate documents be handled?
Electronic file collections almost always include duplicates .​
Multiple individuals may have the same e-mail, with the same attachments .​
Two or​ more people may have reviewed key documents, saving them on​ their hard drives during the process .​
in​ processing electronic collections, it​ is​ possible to​ identify exact duplicate files and​ limit the number of​ documents that require review.
Identifying exact duplicates usually occurs during the phase in​ which the metadata is​ identified and​ extracted from the files .​
De-duping the collection​ will minimally delay the processing.
Standard de-duping involves identifying files that are exact duplicates and​ eliminating them .​
if​ anything has changed within​ a​ document, including formatting such as​ a​ change of​ font, it​ is​ no longer an​ exact duplicate and​ is​ not de-duped.
It is​ imperative that both sides of​ a​ case agree on​ what is​ meant by าde-duping.ำ Many electronic discovery systems literally delete the files so they are gone from the collection​ .​
The forensic tools used in​ law enforcement, however, usually do not delete the duplicates, but merely identify them for​ future use.
Discussing this​ definition​ during the pre-trial conference to​ ensure that all sides of​ a​ case use the same definition​ is​ imperative to​ ensuring that there is​ not a​ discrepancy in​ the number of​ files that each side later has.
A more significant portion​ of​ any collection​ will be าnear duplicates.ำ this​ includes files that have been significantly altered or​ contain​ only a​ portion​ of​ the main​ document .​
for​ some projects, the sheer file volume requires that near duplicates be identified and​ reviewed as​ a​ group .​
this​ significantly reduces review time and​ costs when compared to​ traditional linear review.
Identifying near duplicates requires comparing each document to​ every other document or​ using sophisticated software applications that require additional processing time .​
this​ technology increases consistency of​ review categories, reducing the chance of​ near-duplicate documents being identified as​ both privileged and​ non-privileged.
6 .​
What form should the collection​ take?
The new rules state that the parties will meet and​ determine the format in​ which they wish to​ receive electronic evidence .​
in​ the absence of​ an​ agreement, the format will be that าin​ which it​ is​ ordinarily maintainedำ or​ in​ a​ าreasonably usableำ format.
The choices a​ legal team has include whether each side prefers to​ receive the electronic evidence in​ native file format, converted to​ Tif​ or​ PDF, or​ in​ some other form .​
Often, this​ will depend upon​ the teamีs standard litigation​ review system.
Such systems handle both native and​ converted files, with or​ without associated metadata and​ full text .​
There are pros and​ cons for​ both options .​
Native files with extracted metadata reflect the exact original file; however, they cannot be Bates labeled, which is​ a​ technique to​ mark documents with a​ unique identification​ code as​ they are processed, and​ are subject to​ inadvertent change.
Converting native files to​ Tif​ or​ PDF is​ time-consuming and​ is​ the most expensive task in​ electronic discovery .​
Because 60 to​ 80 percent of​ the files in​ a​ collection​ may be non-responsive or​ irrelevant, both the time and​ finances expended in​ conversion​ may be counter- productive.
The best compromise involves receiving files in​ native format, reviewing them for​ relevancy, and​ choosing only those that may be produced or​ used extensively for​ conversion​ to​ image format.
Managing the vast amount of​ electronic files for​ litigation​ requires preparation​ planning for​ the production, organization, and​ retrieval of​ pertinent and​ relevant documents and​ managing both cost and​ time budgets .​
Because every case presents unique circumstances, there are no absolute correct answers to​ the questions above .​
But a​ team that understands the choices and​ their ramifications is​ prepared to​ make the informed decisions that will result in​ the best possible outcomes for​ the case and​ the organization.




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