Electronic Discovery Issues on the Internet
Clearly, we have ventured into a new electronic/cyberspace era that touches virtually all areas of law practice in one way or another. Given Lawworm.com courses are devoted, in large part, to bringing the legal community up to speed in this regard, it is important to address issues of discovery, which crossover into so many specialty areas, with this new era in mind. Start with the LawWorm.com Index page. Click on Civil Discovery. Click on Electronic Discovery Law. The Electronic Discovery Law page, published by Preston, Gates, Ellis, LLP, is an excellent website for keeping current on Electronic Discovery issues. Click on E-Discovery Case Database on the left. Click “here,” to get started. Check the box next to Cost Shifting, then click Search. Scroll down to Antioch Co. v. Scrapbook Borders, Inc. 210 F.R.D. 645. Click on “Available,” to The Right of Case Summary.” Read the Case Summary. Close the window by click on the “x” at the upper right corner of your screen.
Q. The Court opined herein that based upon its discussion of legal precedents, it is a well accepted proposition that:
a. Deleted computer files, whether e-mails or otherwise, are discoverable.
b. That there must be specific evidence alleged to have been deleted in order for such to be discovered forensically.
c. That there is no requirement of a particularized showing in order for deleted computer information to be discoverable.
d. A and B, but not C.
e. A and C, but not B.
Reminder: Always use the Lawworm.com-mcle tab on your task bar, or the Alt-Tab function to alternate between the course and Internet web pages.
Continue with or return to the page you are/were on. Click the back tab on your browser to return to the Electronic Discovery Database. Click the box next to Privilege or Work Product then click Search. Click on Atronic Int’l, GMBH v. SAI Semispecialists of AM., Inc., 232 F.R.D. 160. Read the Case Summary. Close the window by clicking the “x” at the upper right of your screen.
Q. The judge herein applied which of the following factors in determining whether inadvertent production of e-mails subsequently alleged privileged resulted in a waiver?
a. The reasonableness of the precautions taken by the producing party to prevent inadvertent disclosure of privileged documents.
b. The volume of discovery versus the extent of the disclosure issue.
c. The length of time taken by the producing party to rectify the disclosure.
d. The overarching issue of fairness.
e. All of the above.
Continue with or return to the page you are/were on. Click the back tab on your browser to return to the Electronic Discovery Case Database. Check the box next to the Lack of Cooperation/Inaccurate Representations, then click Search. Scroll down to Adams v. Gateway, Inc. No. 2:02-CV-106 TS. Click on available next to Case Summary. This is an interesting case that demonstrates how an attorney who does not respect the current laws of electronic discovery can grt into trouble. Read theCase Summary, then close the window by clicking on the “x” at the top right of your screen.
Q. The Court herein held that terminating sanctions were not appropriate because:
a. Defendant was not warned in advance of such possibility.
b. Sanctions of evidentery inference, and attornes fees and costs were more appropriate than dismisal under the circumstances.
c. That Defendant\'s conduct had not destroyed plaintiff\'s ability to make it\'s case.
d. All of the above.
We will return for a look at one more case before moving on to explore another valuable website. Continue with or return to the page you are/were on. Click the back tab on your browser to return to the electronic Discovery Database. Suppose you are corporate counsel and concerned over you duties, as well as your client’s, to take affirmative action to preserve certain computer files with the context of a pending litigation. Let’s try the search engine on this one. Type preservation into the keywords search terms field and click search. Scroll down to Danis v. USN Communications, Inc., 53 Fed. R.Serv. 3d 828 and click on “Available,” to the right of Case Summary. Read the Case Summary. Click the “x” on the right corner of the page to close the window.
Q. The Court herein fined the corporate CEO for failing to take which of the following steps, among others, toward the preservation of files relevant to the subject lawsuit.
a. Failing to direct a written, comprehensive, document preservation policy be implemented.
b. His, and in-house counsel’s failure to consult with outside counsel about how to implement a document preservation program.
c. His failure to consult, through counsel, with the opposing party as to what specific documents were to be preserved in connection with the lawsuit.
d. A and B, but not C.
e. B and C, but not A.
Let’s move on to another valuable source of information re: Electronic Discovery. Retired California Superior Court Commissioner Richard Best maintains what we feel to be the best website on the Internet devoted solely to discovery. This website has been recently updated to address electronic discovery as well as traditional. Also, the “California Discovery,” title of this page notwithstanding, much of the site’s content is equally applicable to multi-jurisdictional discovery issues.
Q. Some forms of potential evidence that does not exist in hard copy but are discoverable and retrievable through electronic discovery include, but are not limited to, the following:
Start with the LawWorm.com Index page. Click on Civil Discovery, then click on California Discovery. Click on Electronic Data. Click on "Introduction" on the topics grid. Scroll down under "Why Discover Electronic Data?"and click on "New Documents that do not Exist in Hard Copy." Review the information.
a. E-mail headers: Communication trail, information re: creation, recipients, transmittal and receipt times.
b. Instant messaging.
c. Corporation Intranets, manuals, employee suggestions.
d. Website log files re: visitors.
e. Any of the above.
You can probably see that for anyone concerned over, or interested in, e-discovery – and virtually every practicing attorney should be – this is a website that must be studied diligently in its entirety. For purposes of this course, however, we will continue on to highlight and view several more of the important areas of relevant subject matter. Continue with or return to the page you are/were on. Scroll down further and review the information under New Sources of Information of Documents That Might Otherwise Have Been Destroyed.
Q. Documents that have been deleted from one database or memory may be discovered and retrieved on other hardware or storage areas such as:
a. Sender’s or recipient’s e-mail server.
b. Diskettes, magnetic tapes, Jazz and Zip drive backups.
c. Buffer memories in fax machines, printers and digital copies.
d. LAN with document saved on server.
e. Any of the above.
Continue with or return to the page you were on. Click the back tab on your browser to return to the blue Electronic Data Topic grid. Click on Evidence Admission. In obtaining electronic discovery it becomes very important to be aware of the steps necessary in the process in order to assure the fruits of your efforts are admissible. Review the information under Admission of Evidence.
Q. The Court in In re: Vee Vinhee, 2005 WL 3609376 (9th Cir.) referred to a foundation for the admissibility of computer records consisting of how many elaborated steps?
Let’s gain some exposure to one more important category of information before leaving this excellent website. Continue with or return to the page you are/were on. Click the back tab on your browser to return to the blue electronic data topic grid. Click on Privileges & Privacy. Scroll down and review the information under the headings of Work Product and Privacy.
Q. Based upon the decision in Haynes v. Kline (Kan D.C. 12/23/03, Case No. 03-4209-RDR., employees allowed to use their work computers for private communications have no expectation of privacy in doing so.
Notwithstanding the comprehensive information available on the website you have just worked with, it is never wise to place all your eggs in one basket when there is such a wealth of information available on most legal subject matter on the Internet. One never knows when a particular website, no matter how comprehensive, has overlooked something that may be of value to you. You might even look at checking other websites containing relevant subject matter as a form of “Sheperdizing,” the information you have already obtained. In this regard, let’s take a look at another very good website containing electronic discovery content offered free through LexisNexis. (Yes, you read correctly. We did say free. Actually, let’s be nice to our friends at Lexis and West as they do provide some valuable free services over the Internet, eg., see our course on Free Case Law Research on the Internet.)
Q. Under Rule 34 (a) & (b), a responding party may be required to produce electronically stored information in a form:
Start with the LawWorm.com Index page. Click on Civil Discovery. Click on Applied Discovery (LexisNexis). Read the information under Law Library, then click on Court Rules on the left. Scroll down and review F.R.C.P. Rule 34(a) & (b).
a. Which is ordinarily maintained.
b. Which is ordinarily useable.
c. In more than one form if reasonably requested to.
d. A or B, but not C.
e. A or B, and C.
Note: The white papers offered by this service are excellent sources for information and strategies relevant to electronic discovery. They should be reviewed in their entirety as future time allows by any attorney who has interest in this burgeoning area of law and practice.
We would be remiss if we completed this course without introducing you to an omnibus website on Electronic Evidence and Discovery that opens the door for you to virtually every website on the Internet on the subject matter. Start with the LawWorm.com Index page. Click on Civil Discovery. Click on Electronic Evidence and Discovery Overview. Okay, so you are about to enter into the world of electronic discovery with little or no experience in this area. You have done what any good lawyer would do under the circumstances, that is, diligently reviewed and studied as much available authority on this area as possible. You now know the law, what you can or cannot, or should or should not do. But let’s be real, you are not a computer geek and thus do not have a clue about how to actually implement your knowledge. You do not want to drive your secretary or paralegal to offering a letter of resignation. So, where do you turn for help in going forward with what you must accomplish? Here is where you turn. Scroll down to Vendors of Computer Forensics and Data Recovery Services. Here you will find a comprehensive listing of companies offering such services throughout the country. We have no affiliation with, nor do we endorse any of these entities. But let’s arbitrarily choose one to get a sense of what these services offer. Click on ADR-DSTX Computer Forensics… US. Scroll through the page and note the services offered.
Q. This company offers services relative to electronic discovery and data management, including but not limited to, the following:
a. Litigation support.
b. Non Invasive Data Acquisition.
c. Investigation and Discovery Litigation programs.
d. Expert witness service.
e. All of the above.
Continue with or return to the page you are/were on. Click the back tab on your browser to return to the “Legal Resources,” page. Sample pleadings that address Electronic Discovery are very convenient. Let's have a look. Click on Sample Documents on the left. Click Sample E-Discovery. Click on Sample Interrogatories. Note the number of pages for this document. Close the pdf document by clicking the "X" at the upper right of your screen. Return to course.
Q. How many pages of sample interrogatories does this document contain?