practicePRO - practice aids: ELECTRONIC DISCOVERY

The following are useful links for reference materials and background information to help in understanding the field. Neither LAWPRO nor The Sedona Conference® endorses the products or services offered by commercial companies on the list.

Background Information on Electronic Discovery

EDD Update - Electronic data discovery news and analysis. A joint project of Law Technology News and Law.com legal technology. Edited by Monica Bay and Sean Doherty, with posts by the heavy-hitters in the e-discovery blogosphere.

American College of Trial Lawyers Task Force on Discovery, published March 11, 2009. The goal of this joint project with the Institute for the Advancement of the American Legal System was to examine discovery problems in the civil justice system and make recommendations for reform, if appropriate. Ultimately the goal is to propose Principles whose application will result in a civil justice system that better serves the needs of its users. Note that Campbell J of the Ontario Superior Court of Justice was a participating member of the Task Force.

Canadian Slaw: Principles of Litigation Management. This thoughtful article, published on July 31, 2008, in the collaborative weblog Slaw, offers 10 principles for law firms facing the challenges of electronically stored information in litigation.

The Electronic Discovery Reference Model, a Wikipedia like site developed for the EDRM Project established in 2005 to develop guidelines and standards for e-discovery consumers and providers. From the original model to the current projects, EDRM has helped e-discovery consumers and providers reduce the cost, time and manual work associated with e-discovery.

Canadian LAWPRO’s Fall 2005 LAWPRO Magazine. Members of the eDiscovery Sub-Committee of the Ontario Discovery Task Force published articles in this edition of the LAWPRO magazine devoted to eDiscovery. Lawyers' Professional Indemnity Company (LAWPRO) is an insurance company that is licensed to provide professional liability insurance and title insurance in numerous jurisdictions across Canada.

Manuals of Complex Litigation and Guidelines

Canadian Chapter 8 of the Civil Justice Reform Project (Ontario) discusses the findings, issues and recommendations related to discovery. Access to the complete summary of findings and recommendations including a place to submit comments is available here. Aussi disponsible en français ici.

Canadian Guidelines for the Discovery of Electronic Documents in Ontario, published by the Task Force on the Discovery Process in Ontario in November, 2005. In 2004, a sub-committee of the Discovery Task Force, chaired by the Hon. Mr. Justice Colin Campbell, was formed to consider issues relating to electronic information and electronic discovery. To help members of the Ontario bar deal with e-Discovery issues, The Discovery Task Force Sub-Committee created e-Discovery Guidelines or best practices. The e-Discovery Guidelines will be updated as practices develop and evolve. The Committee welcomes input from members of the profession.

Managing Discovery of Electronic Information: A Pocket Guide for Judges by Barbara J. Rothstein; Ronald J. Hedges; Elizabeth C. Wiggins 2007, 26 pages (In Print: Available for Distribution) This pocket guide helps federal judges manage the discovery of electronically stored information (ESI). It covers issues unique to the discovery of ESI, including its scope, the allocation of costs, the form of production, the waiver of privilege and work product protection, and the preservation of data and spoliation.

The Sedona Principles Addressing Electronic Document Production, Second Edition (June, 2007). The Sedona Conference® is a non-profit, 501(c)(3) research and education institute dedicated to the advancement of law and policy in the areas of antitrust, complex litigation and intellectual property rights. The Principles were initially published in January, 2004. The Sedona Conference continues to refine and update the commentary as the law evolves. The Second Edition includes updates throughout the Principles and Comments reflecting the new language found in the amended Federal Rules and advances in both jurisprudence and technology. The Introduction has been expanded to include a comparison of The Sedona Principles with the amended Federal Rules. Particular attention has been given to updating the language and commentary on Principle 12 (metadata) and Principle 14 (the imposition of sanctions).

U.S. Conference of Chief Justices - Guidelines for State Trial Courts re Discovery of Electronically-Stored Information. Approved August 2006, and available on the website of the National Center for State Courts. These Guidelines are intended to help reduce this uncertainty in state court litigation. They are designed to stimulate the thinking of state rules revision committees, and to identify the issues and factors that may be considered by trial judges faced by a dispute over e-discovery. The Guidelines should not be treated as model rules that can simply be plugged into a state’s procedural scheme; they have been crafted only to offer guidance to those faced with addressing the practical problems that the digital age has created.

Manual for Complex Litigation, Fourth, published by the U.S. Federal Judicial Center in 2004. Close to 900 pages, of which discovery involving electronically stored information and its preservation, collection, processing and production is a part. Available in .PDF format for searching.

Canadian case law digests

American case law digests

Rules of Civil Procedure and Practice Directions

NEW British Final Report of Lord Justice Jackson, Civil Litigation Costs Review, January 2010. Chapter 3 deals with Proportionate Costs (from page 53), and Chapter 37 discusses Disclosure (from page 390). An November 2009 version of the ESI Questionnaire that will be part of the E-Disclosure Practice Direction is appended to Senior Master Whitaker's judgement in Goodale v. MOJ.

NEW Australian Practice Note CM6 - Electronic Technology in Litigation, was issued September 25, 2009, replacing Practice Note 17. The new Practice Note sets out the framework for the use of electronic documents in proceedings before the Federal Court and directs litigants and practitioners to a number of protocols and checklists (the related materials).

Canadian Civil Procedure Rules Nova Scotia - Part 5 - Disclosure and Discovery. The Judges of the Nova Scotia Court of Appeal and the Supreme Court of Nova Scotia made new Civil Procedure Rules on June 6, 2008. All the new rules came into effect January 1st, 2009 except as provided in Part 19 - Transition, Rule 92. Note in particular Rule 16 - Disclosure of Electronic Information.

U.S. Amendments to the Federal Rules of Civil Procedures, including Committee Notes. Amended Rules came into effect December 2006.

Proportionality and Marginal Utility

NEW Proportionality and Professionalism, The Advocates Journal, March 2009. The Honourable Warren K. Winkler, Chief Justice of Ontario. This article is adapted from a presentation made at the American College of Trial Lawyers Annual Meeting in Toronto on September 26, 2008.

NEW Informed, Smart E-Discovery Wins the Day. Leonard Deutchman. Nov 12, 2008. Law.com. "Two thoughtful jurists issued opinions in discovery matters that took opposite tacks in different situations to achieve the same goal."

The "Two-Tiered" Approach to E-Discovery: Has Rule 26(b)(2)(B) Fulfilled its Promise? By: Thomas Y. Allman. Published in the Richmond Journal of Law & Technology, Volume XIV, Issue 3, in Spring 2008. This article seeks to answer these questions through the prism of the reported decisions and the actual conduct of parties under the Rule.

Asymmetrical Warfare: The Cost of Electronic Discovery in Employment Litigation By: Rodney A. Satterwhite and Matthew J. Quantrara. Published in the Richmond Journal of Law & Technology, Volume XIV, Issue 3, in Spring 2008. "The difficulty lies in balancing the need to discover potentially relevant information with the risk of one party having unfair leverage over the other."

A Search for Balance in the Discovery of ESI Since December 1, 2006 By: Douglas L. Rogers. Published in the Richmond Journal of Law & Technology, Volume XIV, Issue 3, in Spring 2008. Nice discussion of marginal utility with a focus on proportionality.

Canadian Proportionality: A More Effective Tool. Craig P. Dennis. September 29, 2005. "Proportionality refers to the idea that the pursuit of a just determination on the merits should not be indifferent to the speed and expense of obtaining that determination."

Early Case Assessment

NEW The 'Next Big Thing' in E-Discovery? April 14, 2009, Leonard Deutchman. Law.com. "Depending upon your perspective, early case assessment, a process through which reviewers try to define the universe of potentially responsive electronically stored information as quickly and, probably most importantly, cheaply as possible, is either the "next big thing" or the "present big thing" in e-discovery."

EDD Analytics in Plain English, April 9, 2009, Sharon D. Nelson, Esq. The "plain English" version follows from the original column by guest-author Rob Robinson of Orange Legal, which is intelligible after the "plain English" is read. So - here's the original: Considering Analytics? April 7, 2009, published on Sharon Nelson's Ride The Lightning blog.

Bake Offs, Demos & Kicking the Tires: A Practical Litigator’s Brief Guide to Evaluating Early Case Assessment Software & Search & Review Tools, Ronni Solomon and Jason R. Baron, written for The Sedona Conference Institute held March 26-27, 2009 in Philadelphia. Early case assessment technology “ … allows for a thorough front-end look at the volume of ESI collected in response to the request for production, instead of just the ESI that is filtered, processed and uploaded to the review tool. Thus, by using this new technology, the litigator can find the “significant documents” very early on in the case instead of waiting until the end of the review process after the reviewers have reviewed and “tagged” the significant documents.”

What is Discovery Analytics? An In-depth Perspective on Analytical Search Techniques and Their Application in the eDiscovery Workflow By Nicholas Croce. January 28, 2009. Published by Inference Data. "Within the last few years, the term “analytics” has become a buzzword in the eDiscovery market, and for good reason. With burgeoning data growth and the need to vastly increase efficiency in the discovery process, both the courts and the vendor community have addressed the challenge with new tools. The terms “analysis” and “analytics” are now being used interchangeably to describe functions ranging from base reporting and review metrics to sophisticated search software and advanced data mining applications."

Discovery Planning NEW

Project Management and Cost/Burden Estimation

E-Discovery on the Cheap. By Frederick Chockley III, Elizabeth Scully, and Rebecca Barnes. Legal Times. April 28, 2009. With the economy down, the new mantra for clients is “more for less.” As litigation budgets shrink, litigation teams are forced to deal with the enormous volume of documents produced in e-discovery without the benefit of large teams of paralegals or expensive outside vendors.

Harness the Power of EDD Planning. By Jeffrey A. Andrews Texas Lawyer April 10, 2009. Discovery, while always time- and cost-intensive, can dominate litigation because of the enormous volume of potentially relevant information that lawyers consider, review and produce. In this landscape, lawyers must give the discovery-planning conference a central, strategic role in formulating a case plan.

10 Steps to Manage E-Discovery Projects, Steven C. Bennett and Marla S.K. Bergman, New York Law Journal, published March 16, 2009 in Law Technology News. This article outlines 10 key steps in a typical e-discovery project, suggesting ways that lawyers can help ensure that such projects proceed successfully.

Canadian Is E-Discovery Too Expensive? Martin Felsky's February 9, 2009 column in Slaw. "Recently I’ve had discussions with several lawyers at big firms and at litigation boutiques, all of whom have a clear understanding of their obligations and their clients’ obligations to preserve, review and produce electronic documents, but all of whom seem to be stymied by the apparently uncontrollable, even irrational costs of ediscovery." Read on.

Achieve Savings by Predicting and Controlling Total Discovery Cost, Chris Egan and Glen Homer from Integreon, December 2008. Published in The Metropolitan Corporate Counsel. Total Discovery Cost (TDC) includes electronic data processing, hosting and document review services. Choices of processing workflow and hosting applications significantly affect TDC. Case teams must weigh these choices carefully early in the litigation lifecycle.

Estimating the Cost Burden of E-Discovery - A New and Better Method. James M. Wright, P.E. FTI Consulting Inc. 2008. When making an NRA (not reasonably accessible) claim “due to undue burden or cost” the party doing so is faced with a significant challenge. Unless there is a substantial business disruption burden claim available [e.g. shutting down I.T. systems, confiscating cell phones, etc.] the only remaining burden claim available is disproportionate cost. This situation is not uncommon in estimating. For example, when bidding for a construction project, it’s important for bidders to be able to determine how much variability there could be in the primary factors they use in estimating, e.g. labor and material costs, productivity, weather, disruptions, etc. This white paper describes an approach using probability analysis.

A Project Management Approach to eDiscovery, May 2008, Bryan Melchionda, Director of Client Services, DaticonEED Inc. This paper shows how corporate clients, law firms and eDiscovery vendors can use Project Management principles to streamline the eDiscovery process and minimize the potential for costly coordination issues and missed deadlines.

Identifying Roles and Responsibilities: RACI Chart. Last updated March 28, 2008. Value Based Management.net. The RACI model is a relatively straightforward tool that can be used for identifying roles and responsibilities for any new process as well as for managing projects.

Opportunities to Manage Risk and Control Cost, a brochure on the Fulbright & Jaworski LLP website dated March 19, 2008. Document review traditionally is the most expensive aspect of electronic discovery. The list of considerations below is intended to serve as a quick reference for planning and management of a document review, which are keys to controlling the high cost of document review.

Canadian Planning avoids after-the-fact panic. A 2007 article in Law Times. “Help your clients to see the necessity of formulating and then implementing a formal strategy for electronic document retention that will allow them to access relevant information should they be sued. This includes the insidious e-mail correspondence, which has multiplied the number of potential e-discovery documents manifold.”

Defuse Fear and Disarm EDD Vendors Pt. I, published in Law Technology News on October 2, 2007. Monica Bay. "There's no question about it, electronic data discovery is generating huge revenues for vendors and gigantic headaches for corporations and their lawyers. There's outright fear and confusion as everybody struggles to understand -- and corral -- this critical litigation technology." This article discusses litigation readiness, project management, EDD skeptics and turf wars. Part II was published on October 10, 2007.

Applying Project Management Techniques to Litigation Discovery. By Conrad Jacoby. April 15, 2006. Published by LLRX. Conrad J. Jacoby, Esq. is a member of The Sedona Conference® and a contributing columnist for Fios, Inc. His work focuses on the areas of information management, e-discovery, and litigation support.

Collecting electronic information

Steer Clear of the Perils of Self-Collection. April 16, 2008. By Leonard Deutchman, writing in Pennsylvania Law Weekly. Cautions and best practices if the client insists on self-collection. See section on DIY Electronic Discovery, below.

Maintaining the Chain of Custody in Civil Litigation. Published on Law.com March 2008. Chain of custody is a familiar concept in criminal law, but until recent years it was foreign to civil litigators. Historically, evidentiary chain of custody was rarely an issue in civil litigation. With the advent of the digital age, it has become a major issue because the actual nature of evidence in civil litigation has undergone a radical transformation — from tangible paper to electronic data.

NEW Examining E-Discovery Chain of Custody. Christy Burke. October 23, 2007. Though a simple concept, chain of custody can be challenging to uphold for electronic data. Potential electronic evidence must be accounted for from the moment of discovery until admittance at trial to prove its authenticity. Documenting the chain of custody of potential, relevant evidence to disprove tampering or alteration is critical to admissibility at trial.

Questions to ask IT or Records Management (either of client or opponent), from Unlocking E-Evidence: Know How to Discover Computerized Information. August 13, 2002, from Los Angeles Daily Journal, an online resource for the California legal community.

Preservation

NEW Assigning Value to E-Discovery's Unknown, April 14, 2010. Leonard Deutchman. Law Technology News. "For U.S. District Judge for the Southern District of New York Shira A. Scheindlin, who authored the Jan. 15 decision in Pension Committee of the University of Montreal Pension Plan v. Bank of America Securities, and U.S. District Judge for the Southern District of Texas Lee H. Rosenthal, who authored the Feb. 19 opinion in Rimkus Consulting Group, Inc. v. Cammarata et al., the question was how to value discovery that may never have existed, i.e., data that should have been preserved to determine whether it needed to be produced as e-discovery but, due to the actions of the producing parties, was destroyed."

NEW E-Discovery Do's and Don'ts of 'Pension Committee'. Martina E. Vandenberg and Brian J. Fischer. February 2, 2010. Law.Com. The court provides an analytical framework for litigators to assess their e-discovery performance and judges to calibrate sanctions. Boiled down to its core, the 85-page opinion suggests a laundry list of do's and don'ts for litigators handling pre-trial discovery.

The Sedona Conference^® Commentary on Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible, July 2008. A Project of The Sedona Conference^® Working Group on Electronic Document Retention & Production (WG1). The central dilemma of preservation planning in the absence of the opportunity to discuss discovery requests or reach prior agreement among the parties is predicting exactly which sources of information may actually be discoverable in a given case. No bright-lines exist. The primary duty is to make reasonable assessments in good faith.

The Sedona Conference® Commentary on Legal Holds, August 2007 Public Comment Version. The duty to preserve information includes an obligation to identify, locate, and maintain, information that is relevant to specific, predictable, and identifiable litigation. When preservation of electronically stored information3 (“ESI”) is required, the duty to preserve supersedes records management policies that would otherwise result in the destruction of ESI. A “legal hold” program defines the processes by which information is identified, preserved, and maintained when it has been determined that a duty to preserve has arisen.

Metadata

Canadian Beware the Dangers of Metadata, by Dan Pinnington, 2004. Published by LawPRO magazine and still one of the most popular documents on the LawPRO website. It was downloaded over 4,000 times in 2008. Dan Pinnington is Director of practicePRO.

Redacting with Confidence: How to Safely Publish - Sanitized Reports Converted From Word to PDF. Published by the (U.S.) National Security Agency on December 13, 2005. There are a number of pitfalls for the person attempting to sanitize a Word document for release. This paper describes the issue, and gives a step-by-step description of how to do it with confidence that inappropriate material will not be released.

Content and Metadata Leakage: Securing Digital Content and It’s Hidden Artifacts, published November 2005 by Delphi Research. "One must not only look at “protecting” the overt content, but the potential hidden content and metatags that can accompany an online file, as these can be as valuable or damaging as the content itself."

Schneier on Security: Metadata in MS Office. Published November 14, 2005 on Bruce Schneier's weblog. Microsoft Office tools are used to author documents, not to publish them. Schneier recommends converting documents to PDF. There is an interesting string of comments attached to the bottom with other useful tips.

Sample documents

Canadian Model E-Discovery Precedents, prepared by the Ontario E-Discovery Implementation Committee. Drafts published in June 2007.

Culling, harvesting and processing

A time to reap, a time to cull, published in the June 12, 2008 edition of Inside Counsel. Clifford F. Schnier. Gathering electronic data is no easy task, but the technology exists to make the process a little easier, and a little less costly

Equivio v2.3.5 Performance Benchmark, January 2008. Published by Equivio. "This document describes the results of performance benchmark tests performed on the Equivio Version 2.3.5 software in January 2008. The tests were carried out in Equivio’s R&D laboratories. The tests were conducted using standard hardware and software equipment to ensure replicability in customer production environments."

Using Near-Duplicates: Applying Near-Duplicate Technology in Litigation Matters. Published by Equivio. "Near-duplicate identification technology, whether deployed on a stand-alone basis to a discovery document collection or in conjunction with other analytical models such as context or concept analysis, has the potential to greatly increase the efficiency of the litigation document review process and significantly reduce discovery costs."

NEW eDiscovery - Did You Know? February 11, 2010. Jason R. Baron and Ralph C. Losey collaborated to create a "Did You Know?" type of music video on electronic discovery law. This video presents some of the amazing facts behind the information explosion and rapid advances in technology. It also explains some of the negative impacts this is having on the law. Lawyers around the world are unable to keep up with these changes. The biggest problem now is how to find relevant evidence when our writings are all just bits and bytes hidden in unimaginably large haystacks of irrelevant information The video ends with their speculations about the near and far futures of the law and technology.

Crafting a More Effective Keyword Search, By Craig Ball, Law Technology News, June 24, 2009. Following comments from Judges Facciola and Peck on the current state of search practiced by lawyers, Craig Ball offers a step-by-step guide. The July edition includes more steps. The full article is available at Surefire Steps to a Splendid Search, on www.craigball.com. Note in particular comments about nested emails, attachments, encryption and other exceptions and their impact on search effectiveness.

TREC 2008 Stresses Human Element in EDD, Jason Krause, May 1, 2009, published on Law.com. Over the years, TREC Legal Track has become a proving ground to test advanced search technology as applied to e-discovery tasks. In 2008, it also explored a different aspect of the e-discovery problem: the role of human beings.

In Search of the Perfect Search, ABA Journal, April 2009. Jason Krause. The Text Retrieval Conference Legal Track has been using different types of computer searches to wade through huge piles of digital information, hoping to get closer to a complete picture of what is issue-important in a computer’s data stores. The good news: The TREC Legal Track team believes it is close to finding a protocol that can work. The bad: The project also found disturbing problems with the way lawyers work today. An interview with TREC co-ordinators Jason Baron and Doug Oard.

Jason Baron on Search - How Do You Find Anything When You Have a Billion Emails? By Ralph Losey in the March 4, 2009 edition of his blog. Report of Jason’s presentation on search science and legal development at University of Florida. Describes the experience of responding to Tobacco’s 1,726 requests to produce and his observations about the adequacy of keyword searching when dealing with enormous volumes.

Understanding the Limitations of Keyword Search, Conrad J. Jacoby, Esq. Published on the Equivio site in early 2009. "Keyword search possesses the seemingly contradictory weaknesses of finding too few documents (under-inclusion) and finding too many documents (over-inclusion). Of late, these limitations have led to a small but growing judicial voice questioning whether keyword search alone meets the legal standards for reasonably and defensibly looking for potentially relevant documents and information."

Lessons Learned From 'Creative Pipe'. By Joshua Horn and Beth L. Domenick. Published August 12, 2008 in The Corporate Counsellor. Lessons learned from Victor Stanley, Inc. v. Creative Pipe, Inc., et al., 2008 WL 2221841 (D. Md. 2008). "The court in Victor immediately identified numerous problems with the defendants' explanation of their ESI search protocol, as well as the search itself. First, the court found that the defendants were "regrettably vague" in their description of the 70 keywords that they used for the text-searchable ESI privilege review; specifically, the defendants failed to inform the court how the search terms were developed, how they conducted the search itself and what quality controls, if any, were used to assess the reliability and accuracy of the search. Second, the court questioned whether the defendants and the two attorneys who created the keyword search were qualified to create a search and information retrieval strategy designed to yield a reliable privilege review. Finally, the court criticized the defendants for failing to assert that they sampled the text-searchable ESI files to determine whether the electronic keyword search was reliably identifying privileged documents."

A 'Comparative Advantage' to Cut E-Discovery Costs. Thomas E. Stevens and Wayne C. Matus. Published September 4, 2008 in The National Law Journal. A perfect storm is brewing involving exponential growth in electronic documents and increasing fees for review of documents. This paper presents the concept of "comparative advantage": This approach -- relatively new to the legal industry but long used in most others -- allows each participant to do what it does well by relying on a partnership among client, law firm and service provider.

In Search of Better E-Discovery Methods. By H. Christopher Boehning and Daniel J. Toal. April 23, 2008. New York Law Journal. As the burdens of e-discovery continue to mount, the search for a technological solution has only intensified. The holy grail here is a search methodology that will enable litigants to identify potentially relevant electronic documents reliably and efficiently.

The Sedona Conference® Best Practices Commentary on Search & Retrieval Methods (August, 2007) The emergence of new discovery strategies, best practices and processes, as well as new search and retrieval technologies, are transforming the way lawyers litigate and, collectively, offer real promise that huge volumes of information can be reviewed faster, more accurately, and more affordably than ever before.

Juggling the Worlds of Paper and Electronic Discovery. How can outside counsel make sure they are comprehensive in their search for information while minimizing costs? By Linda G. Sharp, Esq., MBA and Michele C.S. Lange, Esq. Published on Kroll Ontrack website.

Review

NEW Asserting and Challenging Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework, Hon. John Facciola and Jonathan Redgrave. Published in Volume 4, Issue 1 of The Federal Courts Law Review. "The volume of information produced by electronic discovery has made the process of reviewing that information, to ascertain whether any of it is privileged from disclosure, so expensive that the result of the lawsuit may be a function of who can afford it. ... The authors submit that the majority of cases should reject the traditional document-by-document privilege log in favor of a new approach that is premised on counsel’s cooperation supervised by early, careful, and rigorous judicial involvement."

What to look for in selecting vendors for electronic discovery

Pulling the Right Levers for Outsourcing. March 17, 2008. W. Carter Santos, writing for Law.com. The customer can negotiate contractual levers into the outsourcing agreement to mitigate service performance and other problems caused by vendor employees.

Navigating the Vendor Proposal Process: Best Practices for the Selection of Electronic Discovery Vendors June 2007. A Project of The Sedona Conference® Working Group on Electronic Document Retention and Production (WG1). The goal of the RFP+ Group and this paper is to outline an approach to the selection of an electronic discovery vendor that allows the “user” to compare apples to apples, to the extent feasible, and which makes it easier for all parties to the process to better understand the nature, cost and impact of what is being discussed.

Vetting Your E-Discovery Vendor: The Lawyer’s Perspective, July 2004, published in Law Practice Today, the online newsletter of the ABA Law Practice Management Section. Cost-effective managing of the harvesting, review and production of such information requires careful selection of your E-Discovery vendors.

DIY and Small Firm Electronic Discovery

NEW E-Discovery for Everybody: The EDna Challenge. Craig Ball. December 2009."The Edna challenge involves an old school chum who runs a small law firm. She wants to conduct an in-house review of ESI in a fairly small case. Craig outlines the facts, the technology available and the budget and then asks “How Should Edna proceed?”

Improving Smaller Companies' Litigation Readiness with Little or No Budget, November 19, 2008. Jeff Beard. Published in Inside Counsel. When you read about litigation readiness, typically larger companies and their legal departments get all the attention. The truth is that smaller companies face similar issues but may lack the resources to address them as fully as they’d like.

Steer Clear of the Perils of Self-Collection, By Leonard Deutchman, Pennsylvania Law Weekly, April 16, 2008. For clients who insist on self-collection of electronically stored information, the right set of questions may dissuade them

Ten Tips Leading to Efficient and Effective eDiscovery for the Small Law Firm. By Ervin A. Gonzalez and Patrick S. Montoya. April 2007. In this article, the authors propose ten fundamental cost cutting and time saving tips to assist small plaintiff firms in dealing with the new (US) electronic discovery rules.

Dangers of Do-It-Yourself eDiscovery. Slides from a RenewData webinar originally aired July 2, 2008.

Smaller E-Discovery Costs for Small Biz. By Richard B. Friedman The Corporate Counselor March 7, 2008. In the days of only paper documents, smaller companies could afford to wait until they became involved in a lawsuit to worry about pretrial discovery, but today's reliance on digital information makes that a risky and unnecessarily expensive strategy. By taking a handful of cost-effective steps, companies can save both time and money in litigation costs in the long run.

The Dangers of Do-It-Yourself Computer Forensics. November 2007. Law Practice Today. Erik Shirk. As Do-It-Yourself or “DIY” becomes a more common practice at law firms, it is becoming more important to evaluate the risks associated with doing certain things yourself. Eric Shirk examines the dangers of using DIY for computer forensics and suggests alternatives that are safer for your firm.

Production and disclosure of electronic information

Litigation Readiness

Litigation Readiness Through Information Governance, October 2008. AIIM publication. Peter Pepiton II. Companies can increase their litigation preparedness and reduce risk with an information governance solution that integrates the management of all content — whether in email systems or on paper, disparate content systems, network servers, laptops, voice recordings or elsewhere.

E-Discovery Keeps an Eye on the Job. A. Michael Weber. April 25, 2008. New York Law Journal. "For better or worse, employment disputes are likely to remain the vanguard for the developing electronic discovery case law. As we suggest, however, the appropriate preservation and production of electronic evidence offers as many opportunities for employers as potential pitfalls."

Smaller E-Discovery Costs for Small Biz March 7, 2008. Richard B. Friedman in The Corporate Counsellor. While technology has given even small companies access to global communications capabilities, it also has laden them with new legal obligations. At the heart of the Federal Rules for e-discovery are the obligations to be able to locate, preserve and produce in a timely manner digital information that is relevant to the subject matter of a lawsuit. A common sense approach to managing digital information combined with the establishment of proper policies and procedures can go a very long way to meeting companies' e-discovery obligations.

Canadian How to keep secrets from walking, by Tenille Bonoguore. Published in the September 11th, 2006 edition of The Globe and Mail's @Work edition. Discusses Anton Piller Orders and their use as civil search warrants in litigation.

Legal Holds

Eight Steps to Defensible Legal Holds, By Brad Harris, Director, Discovery Center of Excellence & Technology Consulting Practice, Fios, Inc., February 11, 2009. When litigation or a government investigation is reasonably anticipated, a company is obligated to take steps to ensure the preservation of electronically stored information (ESI). But what steps need to be taken, and where does the process begin? Contrary to the advice of many industry pundits, it doesn’t start with a legal hold notification. This article outlines eight critical steps for ensuring a duty to preserve is being met.

New Rules should Clarify Expectations, written by Thomas Allman, a Senior Counsel in the Chicago offices of Mayer, Browne, Rowe and Maw LLP and published in the August 2005 edition of Law Technology News. Thomas Y. Allman is on the Steering Committee of The Sedona Conference® Working Group on Electronic Document Retention and Production.

Records Retention

The Art of Destruction: An Over-looked Key to Records Management and eDiscovery. By Dr. Johannes C. Scholtes, President and CEO, ZyLAB North America LLC. KMWorld November December 2008. "Although storing 250 gigabytes of data can cost less than $250, hiring an external firm to process and review this data for e-discovery can cost up to $1 million. The impact of these costs is particularly noticeable to in-house legal teams and support staff who are often at the front lines of any e-discovery activities occurring within their organizations."

Get Real on Records Management, May 2008, Michele Hope, published in FedTech Magazine. Five keys let agencies unlock tools that make navigating the world of e-preservation in government straightforward. Advice from Jason Baron (NARA Director of Litigation) and Jonathan Redgrave, Editor-in-Chief of The Sedona Principles (U.S. Edition).

The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age. (November 2007 version). A Project of The Sedona Conference® Working Group on Best Practices for Electronic Document Retention & Production. Original public comment version was released in September 2004. Based on comments received, the introduction was revised significantly to better introduce readers to concepts involved in records and information management in the digital age. Citations to newly decided cases such as Andersen, as well as references to recently publications from ARMA and AIIM have also been added.

Canadian Elements of a Good Document Retention Strategy, April, 2006. Wendy Cole's Canadian adaptation of LexisNexis' paper with the same title. Legislative and caselaw references are all Canadian. What Corporate Counsel Should Know About Retention and Destruction Policies for Digital Data: Elements of a Good Document Retention Policy.

E-Mail Management and Archiving

2009 Gartner Magic Quadrant for E-Mail Active Archiving. May 2009. Carolyn DiCenzo and Kenneth Chin. Report designed to help enterprises identify a set of e-mail archiving products to evaluate as part of an effort to implement an e-mail archiving initiative. Copy hosted courtesy of Symantec.

Cool Vendors in Archiving, 2009. Carolyn DiCenzo, Kenneth Chin and Adam W. Couture. March 3, 2009. New vendors add options for archive storage (Permabit), services to move data into the archive (RenewData), and archiving through a service provider (Sonian and Mimecast).

Establishing an Email Retention Policy: The Legal Perspective. By B.K. Winstead of Penton Media. Published March 5, 2009. Interview with Elise Zealand, VP and Corporate Counsel of Penton Media, about the development and implementation of the email management policy.

Gartner Magic Quadrant for E-Mail Active Archiving. May 2008. Gartner's 2008 e-mail active-archiving Magic Quadrant is focused on enterprise-class products that met the criteria defined below and that were able to prove, through strong references, their ability to address the needs of an organization looking to support thousands of users.

The Sedona Conference® Commentary on Email Management (August, 2007) Editor: Thomas Y. Allman. Many organizations are struggling to decide how to best cope with the explosion of email while reconciling competing needs imposed by business, regulatory and litigation requirements. This Sedona Conference® Commentary suggests Guidelines for determining the core elements of an email retention policy suitable for public and private entities.

Gartner Magic Quadrant for E-mail Active Archiving, 2007 May 2007. Published on Law.Com. E-mail active archiving products continue to add functionality to meet new market demands. Solutions are available to meet basic and complex requirements at a corresponding range in cost.

For Corporate Counsel

NEW Ethics and eDiscovery Review. Patrick Oot, Joe Howie and Anne Kershaw. Published in the Jan-Feb 2010 edition of ACC Docket. "A recent study published by the Ediscovery Institute based on a survey of leading ediscovery providers (Deduping Survey) shows that, despite the technical ability to suppress or consolidate duplicates within an electronic document population, chances are about 50:50 that your outside counsel fails to take advantage of this technology, opting instead to doublebill for reviewing unnecessary duplicates for privilege, confidentiality and relevance."

Ease The Pain of E-Discovery, Information Week, May 30, 2009, by Andrew Conry-Murray. "Here's how three companies have pulled together IT, legal, and other stakeholders to reduce the complexity and cost of finding information when the lawyers come calling."

The Sedona Conference Commentary on Achieving Quality in the E-Discovery Process, Public Comment version, May 2009. Jason R. Baron and Macyl A. Burke. Cost-conscious clients and over-burdened judges are demanding that parties now undertake new approaches to solving litigation problems. The central aim of the present Commentary is to introduce and raise awareness about a variety of processes, tools, techniques, methods, and metrics that fall broadly under the umbrella term “quality measures,” and that may be of assistance in taming the ESI beast during the various phases of the discovery workflow process.

Confused about your eDiscovery Project? A Primer on the Legal Discovery Technology Landscape, by Vivian Tero of IDC. May 2009

Finding Your Way Through Discovery with Data Mapping, Brett Tarr, published in The Corporate Counselor, January 6, 2009. A data map represents the intersection of the expertise of IT and legal departments, and it should illustrate the limitations or boundaries of how information is moved and stored. It allows in-house counsel to see where data resides, not just for litigation purposes but for regulatory and compliance issues, as well as proactive information management initiatives.

Keeping EDD In-House Could Contain Costs, Patrick Oot, Law Technology News, October 8, 2008. Without a doubt, cost containment is the top concern of general counsel and law firms alike when dealing with electronic data discovery. A key area of debate is whether to keep EDD in-house, or ship it to less expensive locations, in the United States or abroad. An in-house program replaces the roles of outside service providers with in-house software, infrastructure and employees who sit within an organization's firewall.

Reducing Risk, Cost, with Early Case Assessment, by Jeff Beard, publishing in Inside Counsel August 14, 2008. Understanding the underlying evidence and merits of a matter is crucial given the compressed timelines and other requirements of the new federal rules. An early case assessment assists corporate and outside counsel by providing them with clearer identification and analysis of electronically stored information (ESI) either before or at the onset of litigation or other requests and investigations.

Under the Radar, August 2007 edition of the National Law Journal. Unauthorized software is sneaking into the workplace, and creating discovery nightmares.

Subdue the Costs of Document Review June 23, 2008. Brett Burney, writing in Law Technology News. Depending upon who you talk to, document review can account for 50 percent to 90 percent of the costs involved in a litigation matter.

Document Review 2.0: Leverage Technology For Faster And More Accurate Review. By Craig Carpenter (Recommind, Inc.). February, 2008 edition of The Metropolitan Corporate Counsel. In a typical document review scenario, lawyers (and everyone else involved) are forced to wade through countless irrelevant, unimportant or simply off-base documents in search of the ones they do care about. As with many other things, the solution to this incredibly costly problem lies in automation.

Coping With the EDD Drumbeat. January 25, 2008. Ronald K. Perkowski, senior counsel in Halliburton Company's litigation group. Practical advice for in-house counsel that doesn't try to scare the daylights out of you.

eDiscovery: Does Your Enterprise Know Where Its Data Is?, published in the November 2007 edition of The Metropolitan Corporate Counsel. For organizations faced with the challenges of addressing ESI, there are three crucial aspects about ESI needed to achieve eDiscovery readiness: (1) knowing the location, (2) understanding the availability or accessibility, and (3) understanding the potential relevance. Because responsibility for addressing ESI typically resides in both the legal and information technology (IT) spheres, it is paramount to have effective communication and interaction between these two groups. This article will address how legal and IT teams can work together to locate and map ESI, in order to meet obligations for both the courts and other government entities.

Electronic Discovery Trend to Watch: Technology Counsel. Dennis Kennedy's blog, August 2007. Technology Counsel is both an externally facing and internally focused position that requires a strong grasp of the connection between law and technology and its effect on the corporation. This position requires an experienced legal mind as well as a strong technical background. Furthermore, the position necessitates a firm understanding of internal enterprise resources, project management, project lifecycle, and the ability to function as a resource on high-profile and high-exposure investigations, regulatory events and litigation.

Your Voicemail On The Front Page Of The New York Times - It Could Happen. Theodore E. Tsekerides and Isabella C. Lacayo. Weil, Gotshal & Manges LLP March 2007 edition of The Metropolitan Corporate Counsel. Practitioners and their clients should be mindful that voicemail, like email, is an area of discovery that may pose significant challenges in any litigation and proceed with care. Developments in the Vioxx litigation brought this reality to bear for Merck & Co., Inc. when a court ordered Merck to preserve and produce all Vioxx-related voicemail messages.

The Developing Concept Of "National E-Discovery Counsel". Published in Metropolitan Corporate Counsel in January 2007. Steven C. Bennett of Jones Day. This article looks at yet another emerging trend, toward development of "national e-discovery counsel," responsible for overseeing, on behalf of major institutions, the processes followed, legal arguments advanced, and evidentiary records developed, in defending major institutions against attacks using the weapons of e-discovery. The article closes with some suggestions for how such national e-discovery counsel might most appropriately operate to serve this new role.

GCs Find New Ways To Cut E-Discovery Costs, published in the December 1st, 2005 edition of Inside Counsel. "With CFOs placing increasing pressure on GCs to reduce expenses, e-discovery costs have become a major target for cutbacks. Fulbright & Jaworski’s annual study of litigation trends named e-discovery as the No. 1 new litigation-related burden for companies with revenues of more than $100 million."

For CIOs

NEW FAQs About Managing Federal Records In Cloud Computing Environments, Fall 2009, NARA."Many of the recent Government 2.0 initiatives, including Data.gov, use cloud computing services. The purpose of this FAQ is to provide agency records officers with a basic overview of cloud computing, its benefits and concerns, and records management implications that agencies will need to consider when implementing cloud computing services."

Establishing an Email Retention Policy - the IT Perspective. March 19, 2009. Interview with Penton Media's infrastructure services director about their implementation of Exchange 2007 managed custom folders. See related piece on the legal perspective here.

Best Practices 101: Governance and enterprise content management. How do you stack up? James Watson, PhD. Published in Infonomics Weekly, February 24, 2009. How do you decide which ECM capabilities get rolled out to which users? How do you get additional user groups on board for additional ECM functionality? How do you prioritize the rollouts, and how do you allocate resources? When you’re doing all these things at an enterprise level, you need that centralized organizational authority. Read on to find out what we consider “worst in class,” “average,” and “best in class” – and to find out how your organization is doing it comes to governance.

An IT Inventory to Meet Your EDD Needs, John Roman Jr., in February 24, 2009 edition of Law Technology News. For many years, a debate has raged about the value of technology inventories for disaster recovery and business continuity, and whether they should be performed by your internal IT department or an outside organization. But today, there's a new twist to the debate: how much will inventories help your preparedness for litigation and electronic data discovery?

LegalTech 2009 Shows Higher Bar for E-Discovery, February 11, 2009, Gartner analysts report. "A conference on IT for the legal profession shows that lawyers will have to meet higher standards for understanding discovery and litigation. IT professionals should help educate the legal department about technologies that can help."

Getting Control of Electronic Discovery: How In-House Technology Delivers Savings. Brian Babineau. December 2008. This paper discusses the challenges posed by electronic discovery processes, current methods of dealing with these issues, and the potential cost savings that companies could achieve if they choose to invest in technology to help expedite the entire operation.

Got Data? A Guide to Data Preservation in the Information Age, article by Francine Berman in the December 2008 edition of the Communications of the ACM. A better model for preserving data is needed and it requires worldwide collaboration, according to a task force on digital preservation and access. Articles discussing the paper can be found in Infoworld and in the Datakos Blawg.

The Litigation Hold: Why You Don’t Have to Hold Everything, by W. Lawrence Wescott and Randolph A. Kahn, August 5, 2008 edition of Computer Technology Review. The advent of electronic discovery has introduced new terms into the IT vocabulary. One term, which now seemingly strikes fear into the hearts of IT managers, is the “legal or litigation hold.”

Electronic Discovery: Are you really ready? June 4, 2008, published in CIO.Com. There's an urgent need for companies to adopt standardized policies and IT practices for the identification, preservation and collection of potentially responsive data.

Roundtable: Planning for Compliance and e-Discovery April 2, 2008, published in Computer Technology Review. Pressing issues with compliance, pain points for IT, key strategies and best practices from industry experts.

Is Your Data Wide Open to Your Opponent? March 12, 2008. Nolan M. Goldberg. The National Law Journal. FRCP 34(a) enables a party, in certain situations, to collect an opponent's electronic data and associated metadata, itself. The assistance of an organization's IT team in navigating these situations is critical to help oppose such an inspection, or help conduct it if ordered by the court.

ESI Risk Management: Best Practices for IT Slides from a webinar sponsored by RenewData, given on February 12, 2008. Discusses impact on IT, evolving roles and best practices.

10 Steps to Creating Defensible Living ESI Content Maps, Brad Harris, December 24, 2007. Published in New Jersey Lawyer. The detailed "content mapping" process has become a crucial component of discovery preparedness and can often mean the difference between obtaining a favorable scope of discovery or, on the negative side, increasing risk of inadvertent data spoliation and expensive, negative outcomes.

Cost of E-Discovery Threatens to Skew Justice System, Gartner RAS Core Research Note G00148170, John Bace, 20 April 2007, R2283 07262007. Georgetown University law Center sponsored a panel discussion on the impact of e-discovery in March 2007. Harvard Law School professor Arthur Miller was the moderator and panellists included U.S. Supreme Court Justice Stephen Breyer.

Canadian Legal Issues: 5 Tips for electronic discovery April 24, 2007, by Brian Reny. Published by CIO Canada. Legal aspects CIOs need to know, written by a technologist for an IT/Records audience.

CIO's Guide to the new Federal Rules of Civil Procedure. Assessing the IT impact of Email / File Retention and Discovery Requirements. Published on the Law.Com website. July 2007. Prepared by Contoural, Inc. and Symantec. Changes to the Federal Rules of Civil Procedure mandate changes in the way organizations manage their data. This Symantec sponsored whitepaper details the changes to the Federal Rules of Civil Procedure and how those changes impact IT at three different organizations.

Leveraging Technology to Enable Automatic Legal Holds. Storing all business records poses litigations risks, strains IT dollars and resources. Published on Law.Com website. March 2007. The explosive growth in electronic communications has resulted in a corollary growth of email as a primary source of legal discovery when organizations are faced with litigation. Recognizing that production of email in litigation or regulatory investigations is virtually inevitable given the predominance of email in the enterprise, organizations must now grapple with how to implement effective and efficient litigation holds in the electronic age.

Business Value of Reducing Costs and Risks of e-Discovery and Regulatory Compliance. Law.com. March 2007. Discovery and compliance costs and risks can be lowered through prudent planning, deployment of cost-saving technologies, and execution of operational best practices. While the main internal customers for IT-supported compliance and discovery services—usually lawyers, finance, and sr. management—will define policies and set service level requirements, the IT department plays a crucial role in delivering an archiving and retrieval solution.

The Importance of IT within the Electronic Discovery Process, April 2008. Brian Babineau. Enterprise Strategy Group. Traditionally, locating, reviewing, and preparing evidence is left to corporate attorneys. However, now that evidence is in the form of e-mails, spreadsheets, database tables, voicemails,and other data, IT and the systems it manages are at the center of many corporate legal matters. Organizations should consider revamping electronic discovery processes, expanding IT’s role to facilitate the retrieval and restoration of critical evidence.

The Flavors of EDD - Editorial - CIO, April 15, 2006. By Galen Gruman. Electronic data discovery tools come in several forms, typically based on the type of monitoring tool their developer has been selling.

IT and Litigation, by Mary Mack, published October 6, 2004 in CIO Update. With most enterprise data kept in electronic form today, CIOs need to formulate a working relationship with legal before a discovery request comes in, writes CIO Update guest columnist, Mary Mack, director of Sales Engineering at Fios.

Computer forensics for the more technically minded

Canadian E is for Evidence, by Tae Kim of Kroll Linquist Avery, Toronto. Dated January-February 2004. Electronic evidence can sometimes be found in the most unlikely places.

ELECTRONIC DISCOVERY - A Reading List

Introduction