Released on: November 18, 2007, 3:40 am

Press Release Author: Karen Unger

Industry: Consumer Services

Press Release Summary: The Federal Rules of Civil Procedureีs recent emphasis
on producing electronically stored information requires that the e-discovery team
understands the collection and processing choices to be made and their
ramifications.

Press Release Body: The Information Management Journal/September / October 2007-
Todayีs explosion of electronic data, coupled with the December 2006
amendments to the Federal Rules of Civil Procedure (FRCP) concerning electronically
stored information (ESI), requires information and legal professionals to expand
their knowledge about handling electronic discovery. The recent changes to the FRCP
include:


* Definitions and safe harbor provisions for the routine alterations of electronic
files during routine operations such as back ups [Amended Rule 37(f)]

* Information about how to deal with data that is not reasonably accessible [Amended
Rule 26(b)(2)(B)]

* How to deal with inadvertently produced privileged material [Amended Rule 26(b)(5)]

* ESI preservation responsibilities and the pre-trial conference. [Amended Rule 26(f)]

* Electronic file production requests [Amended Rules 33(d), 34, 26(f)(3), 34(b)(iii)]

There are many opinions about how ESI should be planned for, managed, organized,
stored, and retrieved. Some of the available options are extremely costly in terms
of their required financial and time commitments. Constantly changing technologies
only add to the confusion. One area of confusion is the distinction between computer
forensics and electronic discovery; there is a significant difference. These are
described in the sidebar Computer Forensics vs. Electronic Discovery.



Making the Right Choices

Successfully responding to e-discovery within the constraints of the amended FRCP
requires organizations to make many critical decisions that will affect the
collection and processing of ESI.

Processing Choices

Because of the volume of information available in even the smallest of collections,
it becomes necessary to manage the process to control time and budget. The following
questions need to be answered:

1. Who are the key people?

The people important to a case should be identified. These key individuals include
not only executives, but also assistants and other support personnel from the
technology, accounting, sales and marketing, operations, and human resources
departments.

2. Where are the files located?

All the potential locations of electronic evidence should be identified. These
include home computers and all computers that a key person would use elsewhere (such
as a girlfriend or boyfriendีs home), cell phones, PDAs, Blackberries, and any
other digital device that might be used. It is important to note that MP3 players,
such as iPods, can also be used to store documents or important files.

3. How can the collection be culled?

Methods for limiting the number of files collected may include collecting only those
in certain date ranges or only those containing selected key words or terms. This
can be done either before or after an entire hard drive is collected forensically.
Known file filtering can also reduce the collection by removing standard application
files common to all computers (such as the Microsoft Windowsจ logo file).

4. How should password-protected/encrypted files be handled?

Encrypted files cannot be processed until the encryption is broken. In some
instances, files with exact or similar names may be available without using
passwords or encryption. File locations may also provide information about the value
decryptions provide. Decryption may require significant time. Sometimes a password
can be obtained simply by asking for it, so this should be the first step. If that
fails, using a subpoena may be successful.

5. How should duplicate and near-duplicate documents be handled?

Electronic file collections almost always include duplicates. Multiple individuals
may have the same e-mail, with the same attachments. Two or more people may have
reviewed key documents, saving them on their hard drives during the process. In
processing electronic collections, it is possible to identify exact duplicate files
and limit the number of documents that require review.

Identifying exact duplicates usually occurs during the phase in which the metadata
is identified and extracted from the files. De-duping the collection will minimally
delay the processing.

Standard de-duping involves identifying files that are exact duplicates and
eliminating them. If anything has changed within a document, including formatting
such as a change of font, it is no longer an exact duplicate and is not de-duped.

It is imperative that both sides of a case agree on what is meant by
าde-duping.ำ Many electronic discovery systems literally delete the
files so they are gone from the collection. The forensic tools used in law
enforcement, however, usually do not delete the duplicates, but merely identify them
for future use.

Discussing this definition during the pre-trial conference to ensure that all sides
of a case use the same definition is imperative to ensuring that there is not a
discrepancy in the number of files that each side later has.

A more significant portion of any collection will be าnear duplicates.ำ
This includes files that have been significantly altered or contain only a portion
of the main document. For some projects, the sheer file volume requires that near
duplicates be identified and reviewed as a group. This significantly reduces review
time and costs when compared to traditional linear review.

Identifying near duplicates requires comparing each document to every other document
or using sophisticated software applications that require additional processing
time. This technology increases consistency of review categories, reducing the
chance of near-duplicate documents being identified as both privileged and
non-privileged.

6. What form should the collection take?

The new rules state that the parties will meet and determine the format in which
they wish to receive electronic evidence. In the absence of an agreement, the format
will be that าin which it is ordinarily maintainedำ or in a
าreasonably usableำ format.

The choices a legal team has include whether each side prefers to receive the
electronic evidence in native file format, converted to TIF or PDF, or in some other
form. Often, this will depend upon the teamีs standard litigation review
system.

Such systems handle both native and converted files, with or without associated
metadata and full text. There are pros and cons for both options. Native files with
extracted metadata reflect the exact original file; however, they cannot be Bates
labeled, which is a technique to mark documents with a unique identification code as
they are processed, and are subject to inadvertent change.

Converting native files to TIF or PDF is time-consuming and is the most expensive
task in electronic discovery. Because 60 to 80 percent of the files in a collection
may be non-responsive or irrelevant, both the time and finances expended in
conversion may be counter- productive.

The best compromise involves receiving files in native format, reviewing them for
relevancy, and choosing only those that may be produced or used extensively for
conversion to image format.

Managing the vast amount of electronic files for litigation requires preparation
planning for the production, organization, and retrieval of pertinent and relevant
documents and managing both cost and time budgets. Because every case presents
unique circumstances, there are no absolute correct answers to the questions above.
But a team that understands the choices and their ramifications is prepared to make
the informed decisions that will result in the best possible outcomes for the case
and the organization.

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