Presentations text content in ESI and E-Discovery Valid E-Discovery Plans
Slide1
ESI and E-Discovery
Valid E-Discovery Plans
Drafting/Granting Discovery OrdersCase Studies
E-Discovery
Slide2ESI and E-Discovery requests are becoming a standard part of civil cases.
Electronic
Systems InformationE-Discovery ProcessGoals of Discovery
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ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
ESI &
E-Discovery
Slide3We use the term ESI to describe any information stored on electronics. At its core we are talking about 0s and 1s
The Digital Age
Electronic HardwareTypes of Information Extracted
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Electronic Systems Info…
E-Discovery Process
Goals of E-Discovery
Electronic Systems Information
Slide4Paper is hard to preserve, reference and search.Electronic
communication dominating workplace Handwriting is slow and it is difficult to catch errorsMedical, financial and most other businesses moving to the paperless office.
The Digital Age
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Electronic Systems Info…
E-Discovery Process
Goals of E-Discovery
Paper is no longer the medium of choice. Typing has replaced writing.
The Digital Age
Electronic Hardware
Information Extracted
Slide5Desktop ComputersLaptop Computers
Cell/Smart PhonesTabletsPhone Systems
Video CamerasDigital Key SystemsElectronic Systems/Hardware
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Electronic Systems Info…
E-Discovery Process
Goals of E-Discovery
Offices tend to have more electronics storing data than they have people.
The Digital Age
Electronic Hardware
Information Extracted
Slide6EmailsText MessagesOffice Documents
Internet HistorySocial Media (Facebook, blogs, tweets)
Instant Messages (Skype, Yahoo, ooVoo)Office DatabasesPhone Conversations
Video Captures
Computer Use Logs
Information Extracted
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Electronic Systems Info…
E-Discovery Process
Goals of E-Discovery
The most requested information involves the
Internet
; emails and browsers.
The Digital Age
Electronic Hardware
Information Extracted
Slide7The process for E-Discovery is often a give and take.
Attorney:
Request for discovery of electronic systems informationJudge: Drafts or approves order to define scope and termsE-Discovery Team:
Identifies hardware possibly containing data
Preserves and collects the data from that hardware
Processes, reviews and analyses data
Produces findings to the court
Data and Digital Forensic Specialists
Analyze and summarize
production
Provide expert opinions and feedbackAssist Attorneys
in courtE-Discovery Process
ESI & E-Discovery
Case StudiesCourt Orders
E-Discovery Plans
Electronic Systems Info…
E-Discovery Process
Goals of E-Discovery
The Digital Age
Electronic Hardware
Information Extracted
Slide8Find specific documents claimed to exist by the attorney’s client that support their position.Prove that their client did not have or ever have documents, emails, images, etc. that they are being accused of
possessing.Prove the whereabouts of their client at a specific time.Find documents that might exist or might have been deleted by the opposition that might discredit their position.
Show the opposition and/or client’s virtual persona in order to reinforce suspected real life activities.Goals of ESI Requests
The goal is to find either documents entered by either party or find logs related to the use of the computer or system.
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Electronic Systems Info…
E-Discovery Process
Goals of E-Discovery
Slide9Identifying the HardwarePreserving the Data
Collecting the DataProcessing the CollectionReview/
Analyze for AccuracyProductionValid E-Discovery Plans
Recognizing a valid E-Discovery plan is necessary to avoid pitfalls such as data corruption.
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Electronic Systems Info…
E-Discovery Process
Goals of E-Discovery
Slide10Home EnvironmentHome ComputersMobile Devices
Online Accounts/Social MediaInternet Service Provider DataOffice EnvironmentCentral Servers that Store Data
Backup SystemsDesktops/laptopsMobile DevicesVideo/Voice and other recording devices
Identifying
the Hardware
Additional copies and backups of data on hardware may be discovered through the review stage.
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Identifying the Hardware
Production
Review/Analyze
Processing
Collecting
Preserving
Slide11Placing the data on holdFreezing the data in time
Seize hardware with no warningRequire shut down of system till matters are resolvedE-Discovery Team in “Read Only” mode
No Insert, Update or Delete instructions by teamPreserving the Data
Preserving the data’s integrity requires a precise plan and clear documentation
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Identifying the Hardware
Production
Review/Analyze
Processing
Collecting
Preserving
Slide12Copy the Data Bit by BitEvery “a” = 01100001 is copied perfectly to another drive as 01100001Bits are verified as accurate by copy software
Collected Data verified to be accessibleOriginal data (hard drives) never used in processingData can be collected live or offlineCollecting the Data
The data from the hardware is copied using trusted forensic tools and software.
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Identifying the Hardware
Production
Review/Analyze
Processing
Collecting
Preserving
Slide13Search the drive for keywords, word patterns and/or date ranges
Use common data tools to find data in structured data filesFlag discovered data with ID NumbersProcessing the Collected Data
Processing the data requires the use of automated software combined with skilled query writers
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Identifying the Hardware
Production
Review/Analyze
Processing
Collecting
Preserving
Slide14Look for irrelevant data floodEvaluate completeness of data, possible oversights
Review the readability of the collectionLook for hidden or encrypted data
Review/Analyze for Accuracy
This requires knowledge of data structure and a clear unpartisan review of the data’s relevance and completeness.
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Identifying the Hardware
Production
Review/Analyze
Processing
Collecting
Preserving
Slide15Index all discovery for court useProduce in standard formats like; PDF, TIFF
and at times, printProduction as seen by the software used to create the file
Organize the production in logical sequences for readabilityProduction
The
p
roduction need to be well organized, indexed and in context to the software used to create the data
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Identifying the Hardware
Production
Review/Analyze
Processing
Collecting
Preserving
Slide16Defining a scope
Common PitfallsAbuses of the System
Drafting/Granting Discovery Orders
The order must carefully balance ensuring that all relevant data can be found with limiting the flood of data produced and costs incurred on both sides.
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Identifying the Hardware
Production
Review/Analyze
Processing
Collecting
Preserving
Slide17Define possible related dataEliminate specific hardware parameters
Set timeframe for stages of completionDefine expected output formatDetermine number of production copies needed
Plan for Intellectual Property and confidential information filteringDefining a Scope
The scope narrows down the details of what is to be collected and produced.
It
clarifies the task for the E-Discovery team to respond to.
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Defining a Scope
Abuses of the System
Common Pitfalls
Slide18Cost of production and “low ball” bidsTime delays caused by unorganized
E-Discovery teams scrambling to learn as they go through due process.Hardware and software errorsUncooperative I.T. staff from the other party, evasive disclosure.
Common Pitfalls
Pitfalls can be reduced by clear communication and expectations set in the order and well organized E-Discovery teams.
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Defining a Scope
Abuses of the System
Common Pitfalls
Slide19E-DiscoveryTrollsSimilar to patent trolls, their goal is to force settlements by threatening “shut down” of business critical systems.Data Flooding
The goal is to flood the opposite party with so much unreadable data that it masks the relevant dataGreedy E-GuessThese are IT based individuals who may undercut valid E-Discovery companies to entice unsuspecting lawyers into a
“good deal”. Later in the process they continually request more and more finances and eventually break the client’s finances with little or no accurate production to show for it.Abuses of the System
Watch for broad requests that will cripple the opposite party with cost and excessive data to cause review time delays.
ESI & E-Discovery
Case Studies
Court Orders
E-Discovery Plans
Defining a Scope
Abuses of the System
Common Pitfalls
Slide20Wrongful TerminationCompany terminated employee for not completing and sending a critical email and attachment to VIP customer.
Former employee claims the computer system must have lost the email because he sent it on time.
Case Study
With so much information stored on computers, its no wonder just about every type of case can involve ESI requests.
ESI & E-Discovery
Case Study
Court Orders
E-Discovery Plans
Defining a Scope
Abuses of the System
Common Pitfalls
Slide21Request is made by the former employees attorney to disclose electronic data related to the email and the attachment in question. The goal: show that the client did send the email and attach the critical document
No specific hardware is named Requested that all possible relevant electronics be placed on hold.
Wrongful Termination
The case of the lost email. Was it computer error or the employee not doing their work?
ESI & E-Discovery
Case Study
Court Orders
E-Discovery Plans
The Request
Data Specialist Report
E-Discovery Production
The Order
Slide22Wrongful Term… The OrderNarrowing the scope and ordering the discovery of ESI. Refer to the handout for a complete list of items to be covered in the order
ESI & E-Discovery
Case Study
Court Orders
E-Discovery Plans
The Request
Data Specialist Report
E-Discovery Production
The Order
Electronics that store email and files that the former employee had access to during the timeframe in question.
Email systems and file data storage systems where the attachment and emails would have been processed or saved according and active during the timeframe in question.
Data may be live collected from active servers or offline collected.
If additional electronics are identified as possibly containing data during the e-discovery process. Those electronics may be placed on hold as an amendment to this order.
Data may be collected from in-house e-discovery storage as long as the collection process is validated by both parties e-discovery teams.
The emails and files produced are limited to data created between 1/1/2001 to 1/15/2001
Both parties agree to the allowance of the e-discovery team to act as expert data analysts to give opinion pertaining to the history and existence of that email and attachment in question.
Slide23Identifying and PreservingE-Discovery Team identifies electronicsformer employees desktop, the email server, the file server and the email filter device as possibly containing relevant data.
CollectionDrives are collected and copied offline, onsite and put back into use.Processing
Keywords used in the email, recipients names, senders name, emails sent around the time in question, documents containing keywords all discovered.Review/AnalyzeOther files in containing folders and versions of files found are reviewedAlternate email logging systems are reviewed for search ability
Email found with search parameters was recorded as successfully sent by the company email server. Recipients server and intended client electronics data requested to verify receipt.
Production
PDF, TIFF and Printed Copies are made for 5 recipients
Wrongful Term….
E-Discovery Process
The E-Discovery team identifies valid hardware, collects the data, and produces the requested output
ESI & E-Discovery
Case Study
Court Orders
E-Discovery Plans
The Request
Data Specialist Report
E-Discovery Production
The Order
Slide24Wrongful Term….Data Specialist Report
The Data Specialist places the data in context and creates a time-line chart show the history of the file and email in question.The chart show the file being created and edited before and after the date and time the email and another similar to it was generated.The first email was successfully sent to the client but did not contain the completed attachment. The attachment was named the same as the final document but was blank.
The client’s email server removed the blank attachment as spam and placed the invalid email on holdThe full email was also created on the employees machine with the attachment but was simply copied to the sent items folder and though the email showed it having been done earlier that day, metadata shows the file was created late that evening, after the deadline.Conclusion, the former employee failed to complete the attachment and attempted to cover up the error by sending a blank attachment email and later trying to falsify a completed email at a later time.
The specialist places all the produced data in context and paints a picture of the history of the email and attachment
ESI & E-Discovery
Case Study
Court Orders
E-Discovery Plans
The Request
Data Specialist Report
E-Discovery Production
The Order
Slide25ESI and E-Discovery
Valid E-Discovery Plans
Drafting/Granting Discovery OrdersCase Studies
E-Discovery
ESI and E-Discovery Valid E-Discovery Plans
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