electronic discovery_5 things you must know

7/31/2019 Electronic Discovery_5 Things You MUST Know

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Electronic Discovery: Five Things You MUST Know as a Solo.

Author: Eric Everson, MBA, MSIT-SE

2012 Florida Law Student Essay Contest


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Table of Contents

Introduction ...3

The Law Is On Your Side4

If it is Digital It is Discoverable6

Time Is Your Enemy.7

File Type Is Your Friend..8

Managing Your Own Digital Risks.9

Conclusion...12


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Introduction:

Bill Gates once revealed, Certainly when I was in high school, the computer was

a very daunting thing (Gates, 2004) Technology tends to move at an incredible

speed, which can make it feel daunting to anyone. Law practitioners are increasingly

witnessing a new breed of attorney breaching the profession, one with tech-savvy and

sleek digital devices in-hand. Effectively the Microsoft kids of the 1980s and 1990s

have arrived into the practice of law. Advances in technology are increasingly

demanding a new skill set of todays practicing attorneys, a skill set which includes

computer skills and a working knowledge of electronic discovery.

What is electronic discovery? According to PC Magazine, electronic discovery

(E-Discovery) is, Relevant evidence in a court case that resides in electronic form. It

includes all types of electronic files, including Web pages, e-mail correspondence, as

well as database, word processing and spreadsheet files. (PCMag.com, 2012) While

this is a great working definition, it should be expanded to include the notion that any

electronic medium is subject to discovery.

The days of sifting through endless stacks of paper business records have given

way to terabytes of electronic data ready to be mined. As Leonard Shustek, the

Chairman of Silicon Valleys Computer History Museum recently noted, We are living

through the time of transition, from there being no computers anywhere to there being

computers in everything that we touch. (Shustek, 2011) The time for learning E-

Discovery is upon us and as an increasing body of binding authority dictates, it is no

longer optional. As you get started, there are five things You MUST Know as a Solo:


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Do not be intimidated by the technical overtone of E-Discovery, in fact many of

the very same rules that you apply to traditional discovery continue to be applied the

same way in E-Discovery. As was so eloquently written in the 3Q2011 FLMIC Advisor

by Retired Circuit Judge Ralph Artigliere and William Hamilton, because of the

ubiquity of computers and digital media, a basic understanding of electronic discovery is

not an option for litigation, business, family law, and government attorneys: it is required

to practice. (Artigliere & Hamilton, 2011)

The Law Is On Your SideThe single most confusing aspect of E-Discovery is keeping up with the ever-

evolving plethora of rules that comprise its practice. While there are admittedly a

growing number of resources, there is one case that reigns in this area: Zubulake!

Some readers might have just experienced one of those Zubu-what kind of

moments, but for those new to E-Discovery, the single most important Supreme Court

case to date is Zubulake v. UBS Warburg, LLC 220 F.R.D. 212 (2003). To begin with,


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Zubulakedefines a key legal concept that is paramount to the practice of E-Discovery,

which is Spoilation. As spelled out in Zubulake, spoliation is the destruction or

significant alteration of evidence, or the failure to preserve property for another's use as

evidence in pending or reasonably foreseeable litigation.

Another gem of Zubulake, is that it established a Supreme Court precedent of

applying appropriate sanctions for spoliation, which gave E-Discovery a set of teeth that

would even make the Twilight cast jealous. The essence of the rule reduces down to

the notion that sanctions can be considered by the trial judge on a case-by-case basis.

Perhaps most importantly for the evolution of E-Discovery is that Zubulakefinds an

obligation to preserve evidence that arises when a party has notice that evidence is

relevant to litigation or when a party should have known that the evidence may be

relevant to future litigation. In effect, Zubulakesingle-handedly puts the law on your

side with regard to E-Discovery.

While Zubulakeis perhaps the centerpiece for modern E-Discovery litigation,

Florida practitioners should also be aware of In re ELECTRIC MACHINERY

ENTERPRISES, INC v. Electric Machinery Enterprises. 416 B.R. 801 (2009). Electric

Machinery, held that Florida law did not support sanctions for spoliation of evidence for

joint venturers' destruction of documents before a subcontractor filed suit in a

bankruptcy case. To date, this is the only negative treatment that Zubulakehas

received in Florida courts, so it is important to at least be aware of Electric Machineryin

preparing E-Discovery litigation. Since it was decided by the United States Supreme

Court in 2003, Zubulakehas endured no direct negative history and has become a

centerpiece in the practice of E-Discovery.


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If it is Digital; It is Discoverable

The world as we knew has changed; in example, the past few years have given

rise to the technological explosion of social media. Social media outlets such as

Twitter, Facebook, Google+, MySpace, Pinterest, and so many more have become

household names and more importantly have become a new source of E-Discovery

litigation. A perfect example of this was most recently seen in Beswick v. North West

Medical Center, Inc. 2011 WL 7005038 (Fla.Cir.Ct.)(2011). In Beswick, the defendant

was compelled to respond to Social Media Interrogatories and an order was issued

requiring the execution of Authorization for Release of Records from Facebook.

Beswickis just one of a growing number of cases where social media has

become relevant to discovery. An important holding in Beswickfound, the Court

does not find Defendants' discovery requests to be burdensome, overly broad, or

violative of Plaintiffs' privacy rights. Cases like this only further support the emerging

adage that declares if it is digital then it is discoverable. There are a growing number

of legal support companies that offer advance digital search services and of course

expert testimony should practitioners find themselves in the midst of E-Discovery

litigation. As Bryce Whitty, founder of TechNibble.com noted, Luckily for us nothing is

ever really deleted on your computer unless something else takes its place on the hard

drive; Chances are your files are recoverable. (Whitty, 2008)

Legal support companies now employ an abundance of software tools that make

data recovery seemingly mundane. Many data recovery experts now guarantee a

100% success rate. Finding the proverbial smoking gun has never been easier than

in todays digital world. Key documents are often stored in multiple locations making a


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systematic and thorough deletion of erasure of such digital data almost impossible.

(Artigliere & Hamilton, 2011)

Time Is Your Enemy

When it comes to E-Discovery, this is not a Rolling Stones song and time is not

on your side! Perhaps closer to reality here, is that the only thing certain in todays

digital world is change. From social media updates to new software releases, data

recovery can be very time sensitive.

E-Discovery has been previously discussed with regard to social media (i.e.

Beswick), additionally the concept of spoliation from Zubulakehas been presented. In

combining such legal holdings, so far, updating ones social media site has not been

found to constitute spoliation. Hypothetically, if one were to update their Facebook

status and delete their old status, this would most likely be merely viewed as a

modification within the regular course. Depending on the user, some might update their

Facebook status many times per day, while others might update less frequently. This

highlights the time sensitive nature of such data as chasing updates made in

cyberspace can become a much more harrowing (and costly) experience compared to

traditional hard-disc data recovery. As previously noted, data is rarely ever truly

deleted, but recovery can become highly challenging as time passes.

Anyone who uses a computer understands that software is always changing.

Microsoft licensees for example may get software updates at very frequent intervals;

additionally to keep its business growing Microsoft invariably releases new versions on

a regular basis. Imagine that one has a law suit that involves a computer which has


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archive files dating back 15 years. In all likelihood, those files from 15 years ago are not

going to be compatible with modern application software and legitimately might require

the use of an Operating System that is many versions removed to access the files.

Since most litigators do not have a stockpile of previous generation computers on-hand,

this can obviously create some E-Discovery hurdles. Again, it does not mean that the

data cannot be recovered, but it is important to keep in mind that software has a shelf

life too. Recovering antiquated digital data can be very costly, so it is important to keep

this potential pitfall in mind.

One key to success in E-Discovery is understanding what kind of time constraints

you are dealing with. From social media updates to new software releases, data

recovery can be very time sensitive.

File Type Is Your Friend

Not surprisingly, when one starts tossing names like .tiff, .rtf, .odt. .xml, and a

laundry list of others around, things can get confusing very quick. No worries, a secret

that most techie types are hesitant to share is: filext.com. This easy to use website

allows you to type your file type extension into a Search box and learn all about it. The

more you work with different file types, the more comfortable you will become with them.

More importantly, you will begin to develop a comfort level with the metadata that each

file type can provide.

What is metadata? In its most simple definition, metadata is aset of data that

describes and gives information about other data. Admittedly, that definition may sound

inherently convoluted, but essentially each file type stores key data such as the time


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and date of creation (this is the metadata). Other metadata may include the authors

name, file size, or even a short summary of the document. What makes file type so

exciting is that when a seasoned E-Discovery litigator identifies a certain file type

extension, they automatically know what kind of metadata they can expect to find.

Unfortunately, this is something that only comes with practice but as a quick tip, you can

Google search metadata + fill in your file type extension and you can get a pretty good

idea about what you can look for with any file type. Getting comfortable with metadata

is a key to successful E-Discovery litigation.

Managing Your Own Digital Risks

Oprah Winfrey famously says, When you know better, you do better. (Winfrey,

2005) This lesson holds true in E-Discovery too. An overall awareness about E-

Discovery allows lawyers to not only advise clients on matters of data retention and data

protection, but importantly allows lawyers to practice what they preach. Two areas that

tend to expose lawyers (and their clients) to risk include redaction and data protection;

these are two great areas where lawyers can know better and do better.

First, anyone in the practice of law has seen redacted documents; redacted

content stands out because where there should be text, the only thing that remains are

thick black lines. Unfortunately, improper redaction has become very popular since

most industries have digitized. As Adobe.com candidly points out, Improper redaction

can lead to censure and malpractice take this subject very seriously! (Adobe

Systems Inc., 2011) If you use Adobe then take a moment to review this very valuable

lesson:http://blogs.adobe.com/security/2009/12/how_to_properly_redact_pdf_fil.html .
http://blogs.adobe.com/security/2009/12/how_to_properly_redact_pdf_fil.htmlhttp://blogs.adobe.com/security/2009/12/how_to_properly_redact_pdf_fil.htmlhttp://blogs.adobe.com/security/2009/12/how_to_properly_redact_pdf_fil.htmlhttp://blogs.adobe.com/security/2009/12/how_to_properly_redact_pdf_fil.html


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Once you know that you are redacting properly, advise your clients to do the same.

This will help to prevent any exposure to risk you face due to redaction.

Next, the issue of data protection is of utmost importance. While an entire

treatise could be authored on this subject, the core of this risk area reduces down to

taking basic steps to safeguard your data. Here are some fascinating facts about data

loss:

A recent U.S. study demonstrated that 329 organizations surveyed lost more than

86,000 laptops over the course of a year.

Of those 86,000 lost laptops, fewer than 5% were recovered.

The study demonstrated financial losses of $2.1 billion.

Interestingly, the physical laptop replacement itself is not that expensive, over 80% of

the cost results from cleaning up the resulting data breach: forensics, lost productivity,

legal bills, regulatory expenses, and lost intellectual property.

(InformationWeek, 2011)

The big picture demonstrates that data protection is much less costly than data

loss in comparison. Data loss can be prevented by taking basic precautions such as

password protecting computers, using encrypted data storage solutions, limiting access

to sensitive data, encrypting thumb drives, and bolstering network security. These are

basic precautions that can be applied both by lawyers and non-lawyers. Today, law

offices are equally at risk to data loss, which can pose significant malpractice risks.

When advising clients on matters of data protection, urge them to consider

methods that can reduce both their internal and external risks; not only should clients be

advised to put internal safeguards in place, but also to bolster protection of their


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sensitive customer/supplier data. There are a growing number of law suits seeking

damages as a result of data loss due to the high prevalence of resulting identity theft

injury; it is best that law firms and their clients take precautions to mitigate such risks.

By becoming more conscientious about data loss, a central theme of E-Discovery will

inherently be looming data preservation.

Finally, there is an important distinction that should be carved between data

preservation and electronically stored information (ESI) for purposes of evidence.

Evidence preservation, compared to data preservation, is a duty to retain information

subject to litigation regardless of whether the information would ordinarily be purged

under a data preservation policy. This allows litigants to gain access to the ESI they

require in the course of their E-Discovery litigation. The duty mentioned, generally

stems first from a discovery request and if needed then from a motion to compel or a

protective order.

The Federal Rules of Civil Procedure (FRCP) actually address the preservation

of electronically stored information in FRCP 26(b)(2)(B). Here ESI need is not required

to be produced if the responding party can persuade the court that the information is not

reasonably accessible as a result of undue burden or cost. The duty to preserve does

not end merely at a partys determination that ESI is not reasonably accessible.

Comments to FRCP 26 indicate that the responding party shall provide the requesting

party with the ability to assess the burden and cost of production. Next, the requesting

party will be encouraged to seek the information from accessible ESI. If such a search

fails to satisfy the discovery request, then the parties shall confer in attempt to resolve

the issue prior to filing the motion to compel or a protective order.


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As a generalization, when an event occurs which is reasonably likely to result in

litigation, ESI should be preserved. Taking preventative measures such as proper

redaction techniques and instituting a data protection policy can reduce significant

liabilities that arise as a result of technology use in the workplace. Propelling data

protection policies forward is an emerging development in E-Discovery which involves

the ancient documents hearsay exception found within the Federal Rules of Evidence:

Rule 803 (16), (where statements contained in ancient documents are admissible as

against the hearsay objection). Here documents (or ESI) gain their reliability by being

virtually untouched for 20 years; this remains an unsettled area of law with regard to E-

Discovery, yet as the ubiquity of computers continues into the future, this old rule may

again become a very relevant hearsay exception in E-Discovery litigation.

Conclusion

E-Discovery is growing in popularity and as a result of the technologies involved,

some unique rules and characteristics have emerged. By first developing a basic

understanding of the principles of E-Discovery, the average practitioner is sure to pick

up on the distinguishing subtleties therein. It has been said that a basic understanding

of electronic discovery is not an option for todays practitioner.

The reality that practitioners must face is that computers are here to stay and

developing a comfort with E-Discovery will help propel client interests as well as

mitigate potential liability that practitioners might encounter in the practice of law.

Inevitably where E-Discovery is on the cutting edge of law today, it shall become


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second nature to the practice of law as the ubiquity of computing prevails. Today E-

Discovery is the stepping stone into tomorrows practice of law; after all, if it is digital

then it is discoverable!


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References:

Adobe Systems Inc. (2011, Februray). Acrobat for Legal Professional. Retrieved 2012

February, from Redaction Part Two: Something Else You Shouldnt Do:

http://blogs.adobe.com/acrolaw/2006/02/redaction_part/

Artigliere, R., & Hamilton, W. (2011, July). Electronic Discovery is Here! Florida Lawyers

Mutual Insurance Company - 3rd Quarter Newsletter, pp. 1-3.

Gates, B. (2004). Quote. Urbana, Illinois: The University of Illinois Urbana-Champaign.

InformationWeek. (2011, April). Lost Laptops Cost $1.8 Billion Per Year. Retrieved

February 2012, from InformationWeek Security:

http://www.informationweek.com/news/security/mobile/229402043

PCMag.com. (2012). PC Magazine Encyclopedia. Retrieved January 17, 2012, from E-

Discovery Definition from PC Magazine Encyclopedia:http://www.pcmag.com/encyclopedia_term/0,2542,t=e-discovery&i=58505,00.asp

Shustek, L. (2011, January 11). Computers Get Permanent Hall of Fame. Retrieved

January 2012, 2012, from NYTimes.com:

http://www.nytimes.com/2011/01/14/us/14museum.html

Whitty, B. (2008, September 28). How to Recover Accidently Deleted Files. Retrieved

February 7, 2012, from TechNibble.com: http://www.technibble.com/how-to-recover-

accidently-deleted-files/

Winfrey, O. (2005, October). Oprah's Top 20 Moments. Retrieved February 2012, fromwww.oprah.com: http://www.oprah.com/oprahshow/Oprahs-Top-20-Moments

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