e-discovery for judges01.13

GLOBAL COMPUSEARCHSpecialists in E-Discovery and Digital Forensicswww.gcsforensics.com

Presented By – Josiah P. Roloff, EnCE, CCE

Spokane, WA - 509.443.9293Palm Springs, CA - 760.459.2122Sacramento, CA - 916.760.7362

Portland, OR - [email protected]

• ESI and E-Discovery

• Valid E-Discovery Plans

• Drafting/Granting Discovery Orders

• Case Studies

E-DISCOVERY





ESI and E-Discovery

requests are becoming a

standard part of civil cases.

• Electronic Systems Information

• E-Discovery Process• Goals of Discovery0101001101110000011001010110001101101001011000010110110001101001011100110111010001110011001000000110100101101110001000000100010100101101010001000110100101110011011000110110111101110110011001010111001001111001001000000110000101101110011001000010000001000100011010010110011101101001011101000110000101101100001000000100011001101111011100100110010101101110011100110110100101100011011100110000110100001010

ESI Request

Processing the Data

Production

ESI & E-Discovery

Case Studies

Court OrdersE-Discovery Plans

ESI & E-DISCOVERY





We use the term ESI to describe any information stored on

electronics. At its core we

are talking about 0s and

1s

• The Digital Age • Electronic Hardware• Types of Information

Extracted

ESI & E-Discovery

Case Studies


Electronic Systems Info…

E-Discovery ProcessGoals of E-Discovery

ELECTRONIC SYSTEMS INFORMATION





• Paper is hard to preserve, reference and search.

• Electronic communication dominating workplace

• Handwriting is slow and it is difficult to catch errors

• Medical, financial and most other businesses moving to the paperless office.

THE DIGITAL AGEESI & E-Discovery

Case Studies




Paper is no longer the medium of

choice. Typing has replaced writing.

The Digital Age

Electronic HardwareInformation Extracted





• Desktop Computers

• Laptop Computers

• Cell/Smart Phones

• Tablets

• Phone Systems

• Video Cameras

• Digital Key Systems

ELECTRONIC SYSTEMS/HARDWA

REESI & E-Discovery

Case Studies




Offices tend to have more electronics storing data

than they have people.

The Digital Age

Electronic HardwareInformation Extracted





• Emails• Text Messages• Office Documents• Internet History• Social Media (Facebook, blogs,

tweets)• Instant Messages (Skype, Yahoo,

ooVoo)• Office Databases• Phone Conversations• Video Captures• Computer Use Logs

INFORMATION EXTRACTED

ESI & E-Discovery

Case Studies




The most requested

information involves the

Internet; emails and browsers.

The Digital AgeElectronic Hardware

Information Extracted





The process for E-

Discovery is often a give and take.

Attorney:

• Request for discovery of electronic systems information

Judge:

• Drafts or approves order to define scope and terms

E-Discovery Team:

• Identifies hardware possibly containing data

• Preserves and collects the data from that hardware

• Processes, reviews and analyses data

• Produces findings to the court

Data and Digital Forensic Specialists

• Analyze and summarize production

• Provide expert opinions and feedback

• Assist Attorneys in court

E-DISCOVERY PROCESS

ESI & E-Discovery

Case Studies




The Digital AgeElectronic HardwareInformation Extracted





• Find specific documents claimed to exist by the attorney’s client that support their position.

• Prove that their client did not have or ever have documents, emails, images, etc. that they are being accused of possessing.

• Prove the whereabouts of their client at a specific time.

• Find documents that might exist or might have been deleted by the opposition that might discredit their position.

• Show the opposition and/or client’s virtual persona in order to reinforce suspected real life activities.

GOALS OF ESI REQUESTS

The goal is to find either documents entered by either party or find logs

related to the use of the

computer or system.

ESI & E-Discovery

Case Studies



E-Discovery Process

Goals of E-Discovery





• Identifying the Hardware

• Preserving the Data

• Collecting the Data

• Processing the Collection

• Review/Analyze for Accuracy

• Production

VALID E-DISCOVERY PLANS

Recognizing a valid E-Discovery

plan is necessary to avoid pitfalls such as data corruption.

ESI & E-Discovery

Case Studies








Home Environment

• Home Computers

• Mobile Devices

• Online Accounts/Social Media

• Internet Service Provider Data

Office Environment

• Central Servers that Store Data

• Backup Systems

• Desktops/laptops

• Mobile Devices

• Video/Voice and other recording devices

IDENTIFYING THE HARDWARE

Additional copies and backups of

data on hardware may be

discovered through the

review stage.

ESI & E-Discovery

Case Studies

Court Orders

E-Discovery PlansIdentifying the

Hardware

Production

Review/Analyze

Processing

Collecting

Preserving





• Placing the data on hold

• Freezing the data in time

• Seize hardware with no warning

• Require shut down of system till matters are resolved

• E-Discovery Team in “Read Only” mode

• No Insert, Update or Delete instructions by team

PRESERVING THE DATA

Preserving the data’s integrity

requires a precise plan

and clear documentatio

n

ESI & E-Discovery

Case Studies

Court Orders


Hardware

Production

Review/Analyze

Processing

Collecting

Preserving





Copy the Data Bit by Bit

• Every “a” = 01100001 is copied perfectly to another drive as 01100001

• Bits are verified as accurate by copy software

Collected Data verified to be accessible

Original data (hard drives) never used in processing

Data can be collected live or offline

COLLECTING THE DATA

The data from the

hardware is copied using

trusted forensic tools and software.

ESI & E-Discovery

Case Studies

Court Orders


Hardware

Production

Review/Analyze

Processing

Collecting

Preserving





• Search the drive for keywords, word patterns and/or date ranges

• Use common data tools to find data in structured data files

• Flag discovered data with ID Numbers

PROCESSING THE COLLECTED DATA

Processing the data

requires the use of

automated software combined

with skilled query writers

ESI & E-Discovery

Case Studies

Court Orders


Hardware

Production

Review/Analyze

Processing

Collecting

Preserving





• Look for irrelevant data flood

• Evaluate completeness of data, possible oversights

• Review the readability of the collection

• Look for hidden or encrypted data

REVIEW/ANALYZE FOR ACCURACY

This requires knowledge of

data structure and

a clear unpartisan

review of the data’s

relevance and

completeness.

ESI & E-Discovery

Case Studies

Court Orders


Hardware

Production

Review/Analyze

Processing

Collecting

Preserving





• Index all discovery for court use

• Produce in standard formats like; PDF, TIFF and at times, print

• Production as seen by the software used to create the file

• Organize the production in logical sequences for readability

PRODUCTION

The production need to be

well organized,

indexed and in context to the software

used to create the

data

ESI & E-Discovery

Case Studies

Court Orders


Hardware

Production

Review/Analyze

Processing

Collecting

Preserving





• Defining a scope

• Common Pitfalls

• Abuses of the System

DRAFTING/GRANTING DISCOVERY ORDERS

The order must

carefully balance

ensuring that all relevant data can be found with limiting the flood of data

produced and costs

incurred on both sides.

ESI & E-Discovery

Case Studies

Court Orders


Hardware

Production

Review/Analyze

Processing

Collecting

Preserving





• Define possible related data

• Eliminate specific hardware parameters

• Set timeframe for stages of completion

• Define expected output format

• Determine number of production copies needed

• Plan for Intellectual Property and confidential information filtering

DEFINING A SCOPE

The scope narrows down the details of

what is to be collected and produced. It clarifies the task for the E-Discovery

team to respond to.

ESI & E-Discovery

Case Studies

Court Orders

E-Discovery Plans

Defining a Scope

Abuses of the System

Common Pitfalls





• Cost of production and “low ball” bids

• Time delays caused by unorganized E-Discovery teams scrambling to learn as they go through due process.

• Hardware and software errors

• Uncooperative I.T. staff from the other party, evasive disclosure.

COMMON PITFALLS

Pitfalls can be reduced

by clear communicati

on and expectations

set in the order and

well organized E-

Discovery teams.

ESI & E-Discovery

Case Studies

Court Orders

E-Discovery Plans

Defining a Scope


Common Pitfalls





E-Discovery Trolls

• Similar to patent trolls, their goal is to force settlements by threatening “shut down” of business critical systems.

Data Flooding

• The goal is to flood the opposite party with so much unreadable data that it masks the relevant data

Greedy E-Guess

• These are IT based individuals who may undercut valid E-Discovery companies to entice unsuspecting lawyers into a “good deal”. Later in the process they continually request more and more finances and eventually break the client’s finances with little or no accurate production to show for it.

ABUSES OF THE SYSTEM

Watch for broad

requests that will cripple the opposite party with cost and excessive

data to cause review time

delays.

ESI & E-Discovery

Case Studies

Court Orders

E-Discovery Plans

Defining a Scope


Common Pitfalls





• Wrongful Termination

• Company terminated employee for not completing and sending a critical email and attachment to VIP customer.

• Former employee claims the computer system must have lost the email because he sent it on time.

CASE STUDY

With so much information stored on

computers, its no wonder

just about every type of

case can involve ESI requests.

ESI & E-Discovery

Case Study

Court Orders

E-Discovery Plans

Defining a Scope


Common Pitfalls





• Request is made by the former employees attorney to disclose electronic data related to the email and the attachment in question.

• The goal: show that the client did send the email and attach the critical document

• No specific hardware is named

• Requested that all possible relevant electronics be placed on hold.

WRONGFUL TERMINATION

The case of the lost

email. Was it computer

error or the employee not doing their

work?

ESI & E-Discovery

Case Study

Court Orders

E-Discovery Plans

The Request

Data Specialist Report

E-Discovery Production

The Order




Portland, OR - [email protected] TERM…

THE ORDER

Narrowing the scope

and ordering the discovery of ESI. Refer

to the handout for a complete list of items to be

covered in the order

ESI & E-Discovery

Case Study

Court Orders

E-Discovery Plans

The Request



The Order

• Electronics that store email and files that the former employee had access to during the timeframe in question.

• Email systems and file data storage systems where the attachment and emails would have been processed or saved according and active during the timeframe in question.

• Data may be live collected from active servers or offline collected.

• If additional electronics are identified as possibly containing data during the e-discovery process. Those electronics may be placed on hold as an amendment to this order.

• Data may be collected from in-house e-discovery storage as long as the collection process is validated by both parties e-discovery teams.

• The emails and files produced are limited to data created between 1/1/2001 to 1/15/2001

• Both parties agree to the allowance of the e-discovery team to act as expert data analysts to give opinion pertaining to the history and existence of that email and attachment in question.





Identifying and Preserving• E-Discovery Team identifies electronics

• former employees desktop, the email server, the file server and the email filter device as possibly containing relevant data.

Collection• Drives are collected and copied offline, onsite and put back

into use.

Processing

• Keywords used in the email, recipients names, senders name, emails sent around the time in question, documents containing keywords all discovered.

Review/Analyze• Other files in containing folders and versions of files found

are reviewed

• Alternate email logging systems are reviewed for search ability

• Email found with search parameters was recorded as successfully sent by the company email server. Recipients server and intended client electronics data requested to verify receipt.

Production• PDF, TIFF and Printed Copies are made for 5 recipients

WRONGFUL TERM….E-DISCOVERY PROCESS

The E-Discovery

team identifies

valid hardware, collects the data, and

produces the requested

output

ESI & E-Discovery

Case Study

Court Orders

E-Discovery Plans

The Request



The Order




Portland, OR - [email protected] TERM….

DATA SPECIALIST REPORT

• The Data Specialist places the data in context and creates a time-line chart show the history of the file and email in question.

• The chart show the file being created and edited before and after the date and time the email and another similar to it was generated.

• The first email was successfully sent to the client but did not contain the completed attachment. The attachment was named the same as the final document but was blank.

• The client’s email server removed the blank attachment as spam and placed the invalid email on hold

• The full email was also created on the employees machine with the attachment but was simply copied to the sent items folder and though the email showed it having been done earlier that day, metadata shows the file was created late that evening, after the deadline.

• Conclusion, the former employee failed to complete the attachment and attempted to cover up the error by sending a blank attachment email and later trying to falsify a completed email at a later time.

The specialist places all the

produced data in

context and paints a

picture of the history of the

email and attachment

ESI & E-Discovery

Case Study

Court Orders

E-Discovery Plans

The Request



The Order





• ESI and E-Discovery

• Valid E-Discovery Plans

• Drafting/Granting Discovery Orders

• Case Studies

E-DISCOVERY

e-discovery for judges01.13

Documents

ediscovery esi

ediscovery requests

digital forensicswww

palm springs

electronic communication

term esi

workplace handwriting

civil cases