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- Why are electronic documents important?
- What is the difference between electronic
and paper documents?
- What makes this case different so
that the traditional discovery methods cannot be relied upon?
- Why can’t the company's Information
Technology department fulfill the discovery motion?
- Why don’t traditional searches
used by companies and their employees work?
- How much paper is produced when
a gigabyte of text data is printed?
- What is the alternative to electronic
discovery?
- Who do the electronic discovery
consultants work for?
- If an outside consultant must be
used for electronic discovery how can the parties be assured that
its privileged documents are protected?
- What is the general process undertaken
when a qualified computer forensics professional completes the
electronic discovery process?
- How is relevant data found?
- How are these search tools different
than the “Find” command in Windows® products?
- How is relevant data produced?
- Does this process change or alter
the data?
- How many ways are there to accomplish
the electronic discovery task?
- How much do electronic discovery
services cost?
- Is using electronic discovery technology
too expensive?
- What is the risk if electronic
discovery is not used?
- Do the courts view electronic files
as documents?
- What are the common arguments that
are made against allowing electronic discovery?
- What are the common arguments that
are made for allowing electronic discovery?
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Why are electronic documents important?
In 1998, an article in the New York Law Journal
estimated that 30% of all corporate data existed solely in electronic
formats. Because of the acceptance of email by society since this
time, this percentage is estimated to be well in excess of 50%.
In order to conduct a comprehensive electronic discovery,
this information needs to be reviewed. Otherwise, the potential
exists that over 50% of all potential evidence may be left unexamined.
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What is the difference between electronic
and paper documents?
The biggest difference between electronic and paper
documents are found in the history of the document itself.
If someone hands you a paper document there is a
certain amount of information that you cannot determine, such as
who the author is, when it was created, were any drafts created
prior to the finalized copy, etc.
When you are in possession of a electronic document
all of these details are possible to determine as well as addition
information.
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What makes this case different so that the
traditional discovery methods cannot be relied upon?
If the evidence in the legal matter is anything
other than verbal communication, electronic discovery should be
considered.
With the exception of handwritten notes, every document
either was or is found in electronic format on a computer. Important
information about its origin and authentication can only be determined
by looking at the electronic copy.
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Why can’t the company's Information
Technology department fulfill the discovery motion?
There are a number of reasons why trying to perform
electronic discovery in-house is problematic:
- Modern electronic discovery methods require specific,
extensive, and continual training.
- To correctly extract data from a broad range
of sources requires specialized equipment and technology.
- There is a potential lack of objectivity and
the ability to testify as a disinterested 3rd party.
- Most IT managers are not knowledgeable in or
responsible for all of the potential data sources.
- The number one (1) priority of IT is to keep
systems running and available. Everything else is secondary and
requires a change in organizational priorities.
- Members of IT departments normally don’t
understand the legal standards and ramifications associated with
gathering and analyzing electronic records.
Why don’t traditional
searches used by companies and their employees work?
Current industry averages estimate
that traditional discovery methods uncover less than 15% of the
relevant documents found through electronic discovery methods.
The fact is that most documents used
in business have never been printed and exist only in electronic
format. In addition traditional discovery methods are far more time
consuming than modern methods especially in terms of identifying
privileged and confidential documents that need to be isolated.
Finally, as electronic discovery becomes
more prevalent in the litigation process the bar will be raised
and the demands for faster and more comprehensive discovery will
become the norm.
Those who rely
solely on traditional discovery methods will be at a distinct disadvantage.
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How much paper is produced when a gigabyte
of text data is printed?
One gigabyte of text information can yield a stack
of paper 85 feet tall.
It is common to capture one terabyte of information
during the electronic discovery process. One terabyte of data equals
1,000 gigabytes, which can yield as much as 85,000 feet of paper.
That volume of documents is a critical challenge even for the largest
organizations.
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What is the alternative to electronic discovery?
Using traditional methods of conducting discovery
is an alternative although it has its limitations.
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Who do the electronic discovery consultants
work for?
Typically one of the parties in litigation retains
an electronic discovery expert or company to handle its own discovery
effort and or to process the opposing side's electronic data.
Another increasing trend is that electronic discovery
experts are hired by both parties in conjunction with a Special
Master.
While one or the other parties are paying for the
expert, the expert really is working for the court system as a trustee
or custodian of the electronic records. Their first and foremost
priority should be on maintaining the integrity of the data so that
it is accepted by the courts.
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If an outside consultant must be used for
electronic discovery how can the parties be assured that its privileged
documents are protected?
There are a number of things that are used to protect
both attorney-client privileged and confidential documents during
electronic discovery.
The most robust and powerful means is to employ
a “Mutual Protocol of Discovery” agreement between both
parties. This can outline what is to be searched for; how it will
be searched; a provision to allow the opposing party to review results
and label a document “Attorney-Client Privileged” or
“Confidential," production of a Privilege log; Non-disclosure
provisions and what format the data will be produced in.
A Special Master can also be utilized to oversee
the process and direct the consultant in conducting the search for
privileged and confidential documents.
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What
is the general process undertaken when a qualified computer forensics
professional completes the electronic discovery process?
The computer forensics professional’s task
is to capture and preserve all potentially relevant information,
systematically extract unwanted information & identify the relevant
data, finally producing the data in a format that the parties can
use throughout the discovery phase.
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How is relevant data found?
Relevant data is found using a number of different
methods. Using hardware and software, a systematic process is established
to find particular pieces of data by searching for documents created
or modified on certain dates, keywords within documents, by author
or even document types.
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How are these search tools different than
the “Find” command in Windows products?
The most common search tools found in software today
are limited to looking at the file name only or searching within
a single document.
The “Find” command in Windows® is
limited in its application because of the length of time to return
its results, inability to conduct complex searches and its method
of returning the results.
The search tools that computer forensics professionals
use are fast and efficient, allow for complex search using GREP
or Boolean capabilities and provide the results in a usable format
without changing the metadata, (defining terms and attributes) of
the document.
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How is relevant data produced?
Relevant data can be produced in a number of formats
depending on the end user. The data should be converted into an
image format to protect the integrity of the document and labeled
with a unique code for identification.
Once in a image format, the data can be printed
(Blowback), imported into a Case Management System such as Summation,
Concordance, etc. or be placed into electronic folders and viewed
with an Internet browser.
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Does this process change or alter the data?
While this process does change the format of the
document, it preserves the metadata from the original document to
maintain its integrity. This process does not change the original
document and if necessary the original document can be called upon
to authenticate the image.
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How many ways are there to accomplish the
electronic discovery task?
Different forensic tools and methodologies provide
many different ways to accomplish electronic discovery. A computer
forensics professional should provide options that maximize results
and minimize the cost.
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How much do electronic discovery services
cost?
Specific discovery requests that have a limited
scope tend to result in lower cost. The typical way electronic discovery
costs are calculated are based on time and expenses.
For non-specific electronic discovery requests,
costs vary by the volume of data and the process used to complete
the task.
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Is using electronic discovery technology
too expensive?
In the January 27, 2002 article, E-Discovery:
A Common Term That is Little Understood in the New
York Law Journal author Greg McPolin does an excellent
comparison of the cost of paper versus electronic discovery.
In his article he estimates that a manual review
process cost an average of $2.20 per page with scanning and coding
costs in the $1.34 per page range. Conversely, the cost of electronic discovery, while it does vary between service providers, is uniformly
under 25 cents per page. In addition, by partnering with an outside
vendor, the company avoids the cost of building and maintaining
a litigation support infrastructure.
Your electronic discovery firm should be an active
partner in the cost containment process by ensuring that you are
taking full advantage of all available technology and industry best
practices.
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What is the risk if electronic discovery
is not used?
There are risks, which must be considered when choosing
not to perform electronic discovery:
- The cost of an incomplete discovery process
and its impact to the outcome of the matter.
- Loss of strategic advantage because of having
incomplete data.
- Increased cost of traditional paper-based discovery
as a result of having a human review paper documents.
- Human error in either overlooking data that
should be identified as relevant or not being properly labeled
as “Attorney-client privileged” or “Confidential”
documents.
Those who rely solely on traditional
discovery methods will be at a distinct disadvantage.
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Do the Courts view Electronic files as documents?
On numerous occasions the courts have recognized
that electronic files are considered documents.
Federal Rule of Civil Procedure 34 - commentary
states that the term “Document” was designed to evolve
with changing technology. In the matter of Lunney v. Prodigy Services,
Co., 1999 WL 1082126 (NY) the courts described e-mail today as “Evolutionary
hybrid of traditional telephone line communications and regular
postal service mail.”
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What are the common arguments that are made
against allowing electronic discovery?
The typical arguments against electronic discovery
and the potential remedy are as follows:
- Request is over-broad
and a fishing expedition – Discovery motion can
be written to be specific in it request. Interrogatories and Person
Most Knowledgeable deposition or the use of 30(b)(6) rule can
help clarify the discovery motion.
- Electronic discovery will
drive up litigation cost – The only thing cheaper
than actually conducting electronic discovery is doing no discovery
at all.
In the matter of Linnen v A.H. Robins Co., 1999 WL 462015 (Mass.
Super.) many courts view the cost as a necessary and foreseeable
business expense, which a party assumes the risk when deciding
to utilize electronic data.
- Confidential and Attorney-Client
Privileged records might be exposed – Certain processes
and safeguards can be implemented to protect records that are
considered Confidential or Attorney-Client Privileged.
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What are the common arguments that are made
for allowing electronic discovery?
- Large amount of potentially relevant data make
it a necessity.
- It can be used to control cost and find discoverable
information faster.
- To verify or authenticate the time, origin,
or author of electronic documents.
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