Electronic discovery
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Electronic discovery (or e-discovery) refers to discovery in civil litigation which deals with information in electronic format also referred to as Electronically Stored Information (ESI). Electronic information is different from paper information because of its intangible form, volume, transience and persistence. Also, electronic information is usually accompanied by metadata, which is not present in paper documents. However, paper documents can be scanned into electronic format and then manually coded with metadata. The preservation of metadata from electronic documents creates special challenges to prevent spoliation.
Electronic discovery was the subject of amendments to the Federal Rules of Civil Procedure, effective December 1, 2006.[1] shows the changes, the complete Rules, where in particular rules 16 and 26 are of interest to electronic discovery, are at [2]
Examples of the types of data included in e-discovery are e-mail, instant messaging chats, documents (such as Microsoft Office documents files), accounting databases, CAD/CAM files, Web sites, and any other electronically-stored information which could be relevant evidence in a law suit. Also included in e-discovery is "raw data" which Forensic Investigators can review for hidden evidence. The original file format is known as the "native" format. Litigators may review material from e-discovery in one of several formats: printed paper, "native file," or as TIFF images.
Native format is increasingly the preferred choice for document review and involves the review of documents in their original file formats. This can require installation of the native applications, such as Microsoft Word in order to open a Microsoft Word document. Because there are hundreds of possible electronic file types, installing every application type could be a real challenge for reviewers. TIFFing involves the conversion of native files into an image format that does not require use of the native applications. If the native file contains multiple pages, then an electronic discovery vendor can convert each page into TIFF images (for example 10 images for a 10 page Microsoft Word document) for use in a discovery review database. More frequently, review applications now utilize special viewers, called embedded native viewers, that avoid the need to install native applications and also avoid having to convert native files into TIFF images, which can require significant storage space for large data sets. Documents that are produced are often numbered using Bates numbering.
Individuals working in the field of electronic discovery commonly refer to the field as Litigation Support.
[edit] Electronic Message Archiving
Quite often, discovery evidence is either delayed or never produced, many times because of the inaccessibility of the data. Backup tapes can not be found, or are erased and reused. This kind of situation reached its apex during the Zubulake v. UBS Warburg LLC lawsuit. Throughout the case, the plaintiff claimed that the evidence needed to prove the case existed in emails stored on UBS' own computer systems.
Because the emails requested were either never found or destroyed, the court found that it was more likely that they existed than not. The court found that while the corporation's counsel directed that all potential discovery evidence, including emails, be preserved, the staff that the directive applied to did not follow through. This resulted in significant sanctions against UBS.
In 2006, the U.S. Supreme Court's amendments to the Federal Rules of Civil Procedure created a category for electronic records that, for the first time, explicitly named emails and instant message chats as likely records to be archived and produced when relevant. The rapid adoption of instant messaging as a business communications medium (See Instant Messaging section on business use) during the period 2005-2007 has made IM as ubiquitous in the workplace as email and created the need for companies to address archiving and retrieval of IM chats to the same extent they do for email.
With electronic message archiving in place for both email and IM it becomes a fairly simple task to retrieve any email or IM chat that might be used in e-discovery. Some archiving systems apply a unique code to each archived message or chat to establish authenticity. The systems prevent alterations to original messages, messages cannot be deleted, and the messages cannot be accessed by unauthorized persons.
Also important to complying with discovery of electronic records is the requirement that records be produced in a timely manner. The changes to the Federal Rules of Civil Procedure were the culmination of a period of debate and review that started in March 2000 when then Vice President Al Gore’s fundraising activities were being probed by the United States Department of Justice. After White House counsel Beth Norton reported that it would take up to six months to search through 625 storage tapes, efforts began to mandate timelier discovery of electronic records.
Modern message archival systems allow legal and technology professionals to store and retrieve electronic messages efficiently and in a timely manner.
The formalized changes to the Federal Rules of Civil Procedure in December 2006 and in 2007 effectively forced civil litigants into a forced compliance mode with respect to their proper retention and management of electronically stored information (ESI). The risks litigants face as a result of improper management of ESI include spoliation of evidence, adverse inference, summary judgement, and sanctions. In some cases, such as Qualcomm v Broadcomm, attorneys can be brought before the bar and risk their livelihood.
[edit] See also
[edit] External links
- Federal Judicial Center: Materials on Electronic Discovery
- The Electronic Discovery Reference Model -- an industry group working on standards
