Tag Archives: ESI

Defendants Recover E-Discovery Costs And How They Did It.

04 Wednesday Mar 2015

Posted by in Discovery, Document Review, E-Discovery, Legal Writing, Motions, Requests for Production

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Court Finds Defendants Are Entitled to Recover $55,649.98 In e-Discovery Costs, by K&L Gates

http://tinyurl.com/pdqnz3a

Comprehensive Addiction Treatment Center, Inc. v. Leslea, No. 11-cv-03417-CMA-MJW, 2015 WL 638198 (D. Colo. Feb. 13, 2015)

Plaintiffs brought a ‘Motion to Review Clerk’s Taxing of Costs Under F.R.C.P. 54(D)(1).’ Specifically, Plaintiffs sought review of the clerk’s determination “concerning the costs taxed amount of $55,649.98, which accounts for Defendants contracting with a private consulting company, Cyopsis, to retrieve and convert ESI into a retrievable format to produce information requested by Plaintiffs.” The court held that ‘[b]ecause Defendants’ costs related to the electronically stored information (‘ESI’) are expenses enumerated in 28 U.S.C. § 1920(4), and Plaintiffs were aware that Defendants would have to retain an outside consultant to retrieve and convert the ESI into a retrievable format, Plaintiffs’ Motion is denied.’ . . .

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Craig Ball on E-Discovery, Litigation Holds, and Evidence Preservation.

20 Tuesday Jan 2015

Posted by in Discovery, Document Review, E-Discovery, Litigation Hold, Preservation, Relevance, Requests for Production

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The Path to E-Mail Production II, Revisited, by Craig Ball, Ball In Your Court

http://tinyurl.com/q4uozfh

This is the seventh in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

The Path to Production: Retention Policies That Work

(Part II of IV)

[Originally published in Law Technology News, November 2005]

We continue down the path to production of electronic mail. Yesterday, I reminded you to look beyond the e-mail server to the many other places e-mail hides. Now, having identified the evidence, we’re obliged to protect it from deletion, alteration and corruption.

Preservation
Anticipation of a claim is all that’s required to trigger a duty to preserve potentially relevant evidence, including fragile, ever-changing electronic data. Preservation allows backtracking on the path to production, but fail to preserve evidence and you’ve burned your bridges.

Complicating our preservation effort is the autonomy afforded e-mail users. They create quirky folder structures, commingle personal and business communications and — most dangerous of all — control deletion and retention of messages.

Best practices dictate that we instruct e-mail custodians to retain potentially relevant messages and that we regularly convey to them sufficient information to assess relevance in a consistent manner. In real life, hold directives alone are insufficient. Users find it irresistibly easy to delete data, so anticipate human frailty and act to protect evidence from spoliation at the hands of those inclined to destroy it. Don’t leave the fox guarding the henhouse. . . .

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Honey Pot of Federal Court E-Discovery Local Rules, Forms and Guidelines.

18 Sunday Jan 2015

Posted by in Bankruptcy Court Rules, Court Rules, Courts, Discovery, E-Discovery, E-Filing, Federal District Court Rules, Local Rules

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Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues, Electronic Discovery Law Blog, published by K&L Gates

http://tinyurl.com/p3d6srx

No doubt many of you have already have bookmarked this site. K&L Gates compiled this comprehensive list of local rules, forms and guidelines for U.S. District Courts and U.S. Bankruptcy Courts. At the bottom of their post, you will find a link that will take you directly to the U.S. Court’s website of all federal court rules. Thank you, K&L Gates. -CCE

Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues

Many United States District Courts now require compliance with special local rules, forms, or guidelines addressing the discovery of electronically stored information. Below is a collection of those local rules, forms and guidelines, with links to the relevant materials. Please note also that many individual judges and magistrate judges have created their own forms or have crafted their own preferred protocols for e-discovery. These are generally available on the website of the individual judge or magistrate judge and care should be taken to ensure you are aware of any such forms or guidelines in any court you may appear in.

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E-Discovery Is Scary!

17 Saturday Jan 2015

Posted by in Discovery, Document Review, E-Discovery, Native Format, Preservation, Requests for Production

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How NOT to Produce Facebook Evidence, by Molly DiBianca, The Delaware Employment Law Blog

http://tinyurl.com/l8tvv2c

Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is.

There are times that a lawyer will want to produce electronic records, such as text messages, emails, and, heaven forbid, social-media content, but simply not know how to do it. I had an opposing counsel call me once and say that he was willing to produce his client’s relevant Facebook posts if I would show him how to do it. Ummmm, no.

My point, though, is that lawyers are ethically bound to understand and comply with the applicable e-discovery rules but, as a matter of practical reality, that does not mean that they comply.  Which is why e-discovery continues to be a predominant subject for discussion in the legal profession.

A recent case from South Carolina gives a pretty good example of how not to produce electronically stored information (ESI). In Wellin v. Wellin, the defendants moved to compel the production of certain ESI, including emails, text messages, and Facebook posts in ‘native format.’ (Native format means, in the most basic sense, that if it was originally in electronic form, you must produce it in electronic form, as opposed to paper form).

The plaintiffs apparently had attempted to produce the requested items but, instead of producing the responsive material in native format, they . . . [wait for it, wait for it] . . .  .-

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Craig Ball’s E-Discovery Tips For Judges.

18 Saturday Oct 2014

Posted by in Discovery, E-Discovery, Requests for Production

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10 E-Discovery Tips for Judges, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2013/08/09/1370/

I speak with a lot of judges about e-discovery and digital evidence.  I’ve taught at Federal Judicial Center programs from coast-to-coast and addressed confabs of judges in various states. Some of these presentations have turned into annual pilgrimages.  Have PowerPoint.  Will travel.

It’s a privilege to address judges because, among their own, judges are more cordial, relaxed and candid than in their courtrooms.  But, it’s also a responsibility and a challenge.  In the state systems, I can often be a judge’s first exposure to e-discovery.

Lawyers want the quick course in e-discovery.  They expect to glean ESI skills in minutes, before they glaze over with the talk of metadata and forms of production. Lawyers seek the canned checklist or scripted list of questions, and little care if they understand what the check boxes mean or what the follow up question should be.

It drives me bonkers. . . .

Bad Stipulations To E-Discovery – Just Don’t.

11 Thursday Sep 2014

Posted by in Discovery, E-Discovery, Legal Technology, Requests for Production

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Don’t Stipulate to Not Follow the Form of Production Rules, by Joshua Gilliland, Esq., Bow Tie Law Blog

 http://tinyurl.com/kxr9gt5

Here is my advice: NEVER agree to a stipulation to produce native files when “it is more practical to do so” and agree to productions in PAPER, PDF’s, or TIFFs. Melian Labs v. Triology LLC, 2014 U.S. Dist. LEXIS 124343 (N.D. Cal.Sept. 4, 2014).

That is what happened in Melian Labs v. Triology LLC. It reads like a personal Sum of All Fears for anyone who has spent years working with ESI, because the Court denied motions to compel email and spreadsheets in native files with metadata, because of the parties’ Rule 26(f) stipulation. . . .

Why Defendant Former Employers Do Not Get Mirror-Image of Plaintiff’s Personal Computer.

30 Monday Jun 2014

Posted by in Computer Forensics, Discovery, E-Discovery, Emails, Employment Law, Evidence, Forensic Evidence, Law Office Management, Legal Technology, Requests for Production, Technology

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Proportionality Prevents Mirror Imaging of Family Computers, by Joshua Gilliland, Bow Tie Law’s Blog

http://tinyurl.com/osvw3ws

The Defendants in employment litigation sought the mirror imaging of the Plaintiff’s personal computers three years after she had been terminated. The crux of the eDiscovery centered on the former employee forwarding emails from her supervisors email to her personal account, which the Defendants claimed were lost by the Plaintiff. The Court denied the motion to compel. Downs v. Va. Health Sys., 2014 U.S. Dist. LEXIS 74415, 6-11 (W.D. Va. June 2, 2014).

Judge James G. Welsh did a very nice job of summarizing ESI relevant to a case,proportionality, and the rules for conducting forensic analysis on an opposing party’s hard drive. The Court held the following:

(1) Nothing in the record suggests any willful failure, fault or bad faith by the plaintiff on her discovery obligations that would justify the requested computer forensics examination;

(2) The “mirror-imaging” of the plaintiff’s family computers three years after her termination raises significant issues of confidentiality and privacy;

(3) There was no duty on the part of the plaintiff to preserve her family computers as evidence;

(4) Principles of proportionality direct that the requested discovery is not sufficiently important to warrant the potential burden or expense in this case; and

(5) On the current record that the defendants have failed to justify a broad, and frankly drastic, forensic computer examination of the plaintiff’s two family computers.

Downs, at *9-10, referencing McCurdy Group v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001); see also Basile Baumann Prost Cole & Assocs., Inc. v. BBP & Assocs. LLC, 2013 U.S. Dist. LEXIS 51264, *8 (D. Md. Apr. 9, 2013). . . .

 

In Discovery, Ask A Silly Question, You’ll Get A Silly Answer.

20 Tuesday May 2014

Posted by in Discovery, Document Review, E-Discovery, Federal Rules of Discovery

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Lessons From Drafting Overly Broad Requests, by Joshua Gilliland, Esq., bowtielaw blog

http://tinyurl.com/pzykr25

Drafting discovery is an art. While painting in oils or pastels is certainly more colorful than drafting requests in Times New Roman or Ariel, both require thought. And like any masterpiece, drafting a request for production can have its challenges.

A Requesting Party demanded an opposing party produce ‘[a]ll email and text messages sent or received on Mayo email and text messaging accounts.’

The Magistrate Judge found the request to be overly broad. . . .

A Double Treat – Two-Part Posts On Cybersecurity and Outsourcing From Ralph Losey.

19 Monday May 2014

Posted by in Computer Fraud and Abuse Act, Computer Virus, Confidentiality, Document Retention, Emails, Encryption, Heartbleed, Law Office Management, Legal Ethics, Legal Technology, Malpractice, Malware, Technology, Technology, Trojans

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The Importance of Cybersecurity to the Legal Profession and Outsourcing as a Best Practice – Part One, by Ralph Losey, e-Discovery Team®

http://tinyurl.com/oalblet

and,

The Importance of Cybersecurity to the Legal Profession and Outsourcing as a Best Practice – Part Two, by Ralph Losey, e-Discovery Team®

http://tinyurl.com/mjek896

It is worth taking the time to read the Comments for both Part One and Part Two. -CCE

Craig Ball’s Lawyers’ Guide to Forms of Production.

19 Monday May 2014

Posted by in Adobe Acrobat, Authentication, Bates Numbers, Computer Forensics, Databases, Discovery, Document Review, E-Discovery, Emails, Evidence, Federal Judges, Federal Rules of Discovery, Federal Rules of Evidence, Forensic Evidence, Judges, Legal Forms, Legal Technology, Native Format

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A Guide to Forms of Production, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2014/05/19/a-guide-to-forms-of-production/

Craig Ball’s Lawyers’ Guide to Forms of Production! Although Mr. Ball says there is much he wants to re-organize and rewrite, I can’t wait to dive in.  You will find the hyperlink to the Guide when you go to the web site. Thank you, Craig Ball! -CCE

Semiannually, I compile a primer on some key aspect of electronic discovery.  In the past, I’ve written on computer forensics, backup systems, metadata and databases. For 2014, I’ve completed the first draft of the Lawyers’ Guide to Forms of Production, intended to serve as a primer on making sensible and cost-effective specifications for production of electronically stored information.  It’s the culmination and re-purposing of much that I’ve written on forms heretofore, along with new material extolling the advantages of native and near-native forms.

Reviewing the latest draft, there is much I want to add and re-organize; accordingly, it will be a work-in-progress for months to come.  Consider it a “public comment” version.  The linked document includes exemplar verbiage for requests and model protocols for your adaption and adoption.  I plan to add more forms and examples. . . .

Craig Ball Shows Why ESI Form Should Follow Function.

16 Thursday Jan 2014

Posted by in Discovery, E-Discovery, Emails, Legal Technology, Microsoft Office, Outlook

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Forms that Function, by Craig Ball, Ball In Your Court

http://tinyurl.com/kgokpmd

The criterion, “Will the form produced function in an e-mail client?” enables parties to explore a broad range of functional native and near-native forms, not just PSTs.  It an objective “acid test” to determine if e-mail will be produced in a reasonably usable form; that is, a form not too far degraded from the way the data is used by the parties and witnesses in the ordinary course.

Ralph Losey’s Top E-Discovery Case of 2013.

29 Sunday Dec 2013

Posted by in 5th Circuit Court of Appeals, Discovery, E-Discovery, Preservation, Sanctions, Texas Supreme Court

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Announcing My Top e-Discovery Case of 2013, by Ralph Losey, e-Discovery Team® Blog

Seal for the United States Fifth Circuit court...

http://tinyurl.com/mqrqv3d

The year 2013 has been a relatively lackluster one for e-discovery case law. Then, on November 12, 2013, the Fifth Circuit Court of Appeals rendered a rare appellate order on sanctions and e-discovery abuse.

Craig Ball Answers His Mail.

06 Friday Dec 2013

Posted by in E-Discovery, Emails, Evidence, Forensic Evidence, Legal Technology, Metadata, Trial Tips and Techniques

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Good Questions!, by Craig Ball, Ball in Your Court Blog

http://ballinyourcourt.wordpress.com/2013/12/06/good-questions/

As always, Craig Ball delivers. Great answers to e-discovery terminology and best practices. -CCE

Court Says E-Discovery Search is “Easier Said Than Done”

17 Sunday Nov 2013

Posted by in Discovery, E-Discovery, Evidence, Federal District Court Rules, Legal Technology, Trial Tips and Techniques

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Triangulating Discovery Productions, by Joshua Gilliland, Esq., BowTie Blog

http://tinyurl.com/key6ugd

 Judge William Orrick summed up a basic truth of eDiscovery: In the age of electronically-stored information (“ESI”), production of all relevant, not privileged and reasonably accessible documents in a company’s custody and control is easier said than done. Banas v. Volcano Corp., 2013 U.S. Dist. LEXIS 144139, at *5 (N.D. Cal. Oct. 4, 2013).

A Better Way to Request E-Discovery in Requests for Production

19 Saturday Oct 2013

Posted by in Databases, Discovery, E-Discovery, Metadata, Requests for Production

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Can We Craft Discovery as Up-to-Date as the Evidence?, by Craig Ball, Ball in Your Court
http://bit.ly/14IZFAz

(Please note the reference to Craig Ball’s article entitled, The Streetlight Effect in E-Discovery, at p. 252 of this collection of articles.)