Rule 26 Blog
The Need for Practical E-Discovery Standards
Written by Eric P. Blank   
Tuesday, 05 January 2010 10:56

In recent years, there has been a great deal of discussion about standards in electronic discovery, most of which has focused on the big-picture issues of scope, cost and cost shifting.  These are important questions eloquently argued in the courts.  Teams of attorneys and e-discovery support organizations are also making headway against the most pressing e-discovery concerns, such as when, if ever, to search backup tapes.

In my view, though, what has been noticeably missing from this debate is discussion of the mundane, pick-and-shovel e-discovery concerns that affect every case.  I mean the elementary technical issues and practical challenges involved in extracting data from electronic storage media, processing the data and its metadata into document review software applications, and supporting the review and production of the data as discovery or evidence.  We need to agree on the best way to do all of these, with the equipment available to us today.  We also need to agree on the best way to document the process.

The Electronic Data Extraction Network (EDEN), a nationwide community of e-discovery service providers founded and sponsored by BLT, is developing its EDEN Standards to provide members and electronic discovery vendors best-practices guidance in the identification, extraction, preservation, processing, search, review and production of electronically stored information.  The EDEN Standards are presented from the viewpoint of the technical personnel supporting electronic discovery in litigation.  They are designed to be practical in nature, and include forms, templates and record-keeping details.  EDEN Standards are properly crafted if EDEN members perceive them to be sensible – even obvious – and in line with what most of our community would consider reasonable practices.  No e-discovery support technician should be surprised by any Standard.

If our national EDEN community agrees on best-practices approaches to execution and documentation, we all benefit.  First, we will do our jobs well.  Second, we and our clients will know that the data extracted or processed by us has been handled in a safe and reasonable manner.  Our standardized records-keeping processes will reflect the quality of our work.  When an attorney or judge asks how we can be confident that we have taken the right course of action, we can point to the backing of an organization with members in every state.

Nothing like this exists at present.  E-discovery vendors are mostly on their own, or supported by fragmented, informal groups.  Recordkeeping is learned by experience, or from others who learned the same way.  No one can point to a formalized process or an accepted best practices standard.  Does this mean that today’s practices are poor?  Not necessarily.  It means only that practices are diverse.  Many in the e-discovery community are doing a terrific job.  Some are in over their heads.

What a lack of standards does mean is that we are challenged to defend our work piecemeal when it is subjected to scrutiny.  How many copies did we make during our single opportunity to create an image of a contested hard drive?  Why did we image some drives, and merely copy others?  How did we decide to approach extraction efforts from a mail server, and why?  Our answers may all make sense, but it would be far more comforting to call on the additional support of an established standard -  a practical, sensible guideline developed with the input of a nationwide community of e-discovery service providers.

Ultimately, EDEN Standards will help EDEN members and others in the computer forensics and electronic discovery communities to produce defensible, industry-supported work product and documentation – securing the functions and processes of electronic discovery.  We hope that you will join us in their development.

Please submit comments, suggestions, and inquiries regarding the EDEN Standards to: standards@edenhub.com.
 
FJC Report: E-Discovery in Recent Federal Cases
Written by Michael Harte   
Tuesday, 08 December 2009 17:50

In October 2009, the Federal Judicial Center (FJC) released a preliminary report on the results of a national, case-based civil rules survey conducted in May and June 2009. The survey posed questions regarding discovery activities and case management practices in federal civil cases that closed during the final quarter of 2008. The FJC report was compiled to facilitate discussion regarding discovery practices and potential remedies for commonly encountered discovery issues at the group's upcoming conference in 2010.

Of particular note for the e-discovery industry is Section III of the report which discusses electronic discovery in the surveyed cases. The report states that although approximately 80% of all respondents had some kind of conference with opposing counsel regarding a discovery plan, only 30% indicated that ESI was discussed. The report also concluded that cases involving electronic discovery had a higher median cost than those that did not.

The full report can be found here.
 
E-Discovery Principles Applied to WA Public Records Act
Written by Charles T. Tsuji   
Tuesday, 01 December 2009 16:39

Washington’s Public Records Act (PRA) was designed to “ensure the sovereignty of the people and the accountability of the governmental agencies that serve them” by mandating public access to information concerning governmental conduct. Amren v. City of Kalama, 131 Wn.2d 15, 31, (1997).  

By statute, the free and open examination of public records is in the public interest and, accordingly, disclosure requirements under the PRA are liberally construed. RCW 42.56.550(3).

Over the years, adoption of technology by governmental agencies has exponentially increased the kinds of public records stored in electronic format, and a pair of recent Washington Court of Appeals decisions seems to indicate that basic electronic discovery principles apply to government agencies responding to PRA requests.

For example, it is well-established that metadata – data about data – can be subject to discovery in civil litigation.  In O’Neill v. City of Shoreline, 145 Wn.App. 913 (Div. 1, 2008), the appellate court extended that principle to governmental entities responding to PRA requests, finding that “metadata [that] contains information that relates to the conduct of government or the performance of a governmental function” is itself a “public record.” 

Taking production requirements one step further, the Washington Court of Appeals recently expanded the government’s obligations under the PRA to include production of documents in native electronic format.

In Mechling v. City of Monroe, 2009 WL 3430173 (Div. 1, 2009), Mechling requested that the City of Monroe provide certain email messages in electronic format rather than in hard copy. Relying on the City’s statutory duty to provide the “fullest assistance to inquirers,” the court held that “in general, an agency should provide electronic records in an electronic format if requested in that format.” The court remanded the case to the trial court for a determination of whether it is reasonable and feasible for the City to provide the documents in electronic format.

In light of these recent decisions, it appears that government agencies already facing staffing shortages due to budget cuts may also face the need to quickly learn how to identify, collect, review and produce electronic data in response to PRA requests.

As many civil litigators already know, this is not a simple task. It takes time to understand how documents are stored, how to preserve metadata, and ultimately how to produce electronic documents.

Without further guidance from the courts or the cooperation of PRA requestors, governmental entities may find themselves struggling to efficiently and economically comply with the electronic production requirements of O’Neill and Mechling.

*****

Photograph of Charles Tsuji

Charles T. Tsuji is an attorney and electronically stored information consultant at Blank Law + Technology PS. He provides advice to clients to ensure that sources of electronic documents are properly identified, preserved and collected. Mr. Tsuji has more than five years of e-discovery experience and is a graduate of the Seattle University School of Law.

 
 
Don’t Let Your Wild Things Twitter, Text or Email
Written by C. Dean Little   
Tuesday, 24 November 2009 11:35

Yes, I am referring to the movie “Where the Wild Things Are.”  

The movie’s hero is a young man trying to understand the impulses he feels. He suddenly finds himself in a new and previously unknown world that is populated by a community of Wild Things.

Each Wild Thing has a different emotional disposition. One is consumed by feelings of unimportance. Another erupts in a fit of anger at being betrayed. Other Wild Things have other tendencies. Since each acts on impulse, they continually hurt each other emotionally.  

The Wild Thing society is primitive. They do not have computers, the internet, and cell phones. If they did, they would be impulsively sending off tweets, texts, and emails.

The Wild Things want a king who will bring peace to their community. The movie’s hero takes on the role.  But, try as he might using all his will-power, the hero cannot completely control the Wild Things. At best, short-term harmony is reached when a specific situation requires all the Wild Things to work together to achieve a clear common goal, such as building a fort.
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Clawback Agreements in the Wake of FRE 502
Written by Jonathan Yeh   
Wednesday, 18 November 2009 09:12
Privilege review of voluminous electronic documents can be extremely costly and time-consuming. As one federal magistrate judge put it, it is one of the most challenging aspects of discovery of electronically stored information (ESI):

    [H]ow properly to conduct Rule 34 discovery within a reasonable pretrial schedule, while concomitantly insuring that requesting parties receive appropriate discovery, and that producing parties are not subjected to production timetables that create unreasonable burden, expense, and risk of waiver of attorney-client privilege and work product protection. Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228 at 232 (D. Md. 2005).
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