Updated Level Two EDRM Evergreen Diagrams
January 27, 2010
As a pre-view of the materials to be presented at the Feb. 1, 2010 EDRM lunch-and-learn session at LegalTech, here are the updated level two EDRM Evergreen diagrams:
Identification
Aim: To identify subject matter experts, resources involved, potential sources of data; to determine the depth and breadth of potential liability; to aggregate information sources for developing course of action.
Goal: Evaluate, leverage and mitigate.
* Although represented as a linear workflow, moving from left to right, this process is often iterative. The feedback loops have been omitted from the diagram for graphic simplicity.
Preservation
Aim: When duty to preserve is triggered, promptly isolate and protect potentially relevant data in
ways that are: legally defensible; reasonable; proportionate; efficient; auditable; broad but tailored; mitigate risks
Goal: Mitigate risks.
* Although represented as a linear workflow, moving from left to right, this process is often iterative. The feedback loops have been omitted from the diagram for graphic simplicity.
Collection
Aim: When data needs to be used, collect potentially relevant data in ways that are: legally Defensible; forensically sound; proportionate; efficient; auditable; targeted.
Goal: Mitigate risks.
* Although represented as a linear workflow, moving from left to right, this process is often iterative. The feedback loops have been omitted from the diagram for graphic simplicity.
Processing
Aims: Perform actions on ESI to allow for metadata preservation, itemization, normalization of format, and data reduction via selection for review.
Goal: Identify ESI items appropriate for review and production as per project requirements.
* Although represented as a linear workflow, moving from left to right, this process is often iterative. The feedback loops have been omitted from the diagram for graphic simplicity.
Review
Aim: To gain an understanding of document content while organizing them into logical sub-sets in an efficient and cost effective manner.
Goal: Fact Development, Reduce Risk, Reduce Cost, Leverage Technology, Facilitate Collaboration and Communication.
* Although represented as a linear workflow, moving from left to right, this process is often iterative. The feedback loops have been omitted from the diagram for graphic simplicity.
Analysis
Aim: To develop, facilitate, test and validate processes for handling e-discovery efforts.
Goal: Assess and understand ESI throughout the life of the case for the purpose of making educated decisions and developing a defensible, strategic plan.
Production
Aim:To prepare and produce ESI in an agreed upon and usable format.
Goal: Efficient production in compliance with agreed production specifications and timelines, Reduce cost, Reduce risk, Reduce errors.
* Although represented as a linear workflow, moving from left to right, this process is often iterative. The feedback loops have been omitted from the diagram for graphic simplicity.
Presentation
Aim: Displaying ESI before audiences (at depositions, hearings, trials, etc.), especially in native & near-native forms, to elicit further information, validate existing facts or positions, or persuade an audience.
Goal: Develop facts, leverage technology, facilitate communication and persuade.
* Although represented as a linear workflow, moving from left to right, this process is often iterative. The feedback loops have been omitted from the diagram for graphic simplicity.
“Zubulake Revisited: Six Years Later”: Judge Shira Scheindlin Issues her Latest e-Discovery Opinion
January 27, 2010
Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order)
Issued earlier this month, Judge Shira Scheindlin’s opinion in Pension Comm. of Univer. of Montreal Pension Plan v. Bank of Am. Secs., LLC, addresses the issues of parties’ preservation obligations and spoliation in great detail, including detailed and informative discussions of the varying levels of culpability in failing to uphold discovery obligations, the required burdens of proof, and the appropriate remedies upon a finding of spoliation.
The opinion was summed up by Judge Scheindlin in the introduction to her opinion:
By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records-paper or electronic-and to search in the right places for those records, will inevitably result in the spoliation of evidence.
The court specifically identified several actions (or failures to act) which would result in a finding of gross negligence in upholding discovery obligations:
Thus, after the final relevant Zubulake opinion in July, 2004, the following failures support a finding of gross negligence, when the duty to preserve has attached: to issue a written litigation hold; to identify all of the key players and to ensure that their electronic and paper records are preserved; to cease the deletion of email or to preserve the records of former employees that are in a party's possession, custody, or control; and to preserve backup tapes when they are the sole source of relevant information or when they relate to key players, if the relevant information maintained by those players is not obtainable from readily accessible sources.
Following its lengthy discussion of the facts and findings, the court concluded that:
While litigants are not required to execute document productions with absolute precision, at a minimum they must act diligently and search thoroughly at the time they reasonably anticipate litigation.
For a full copy of the opinion, click here.
Forensic training Lunch-n-learn
January 26, 2010
eCSi offers basic forensic training courses. Designed to be fast, hands on and informative.
The forensic training is $200 per person per class or $499 for the series maximum of 5 people. Lunch and training hardware is provided as well as some software that you can take with them.
Forensic lunch-n-learns:
Imaging basics (Thursday Feburary 11th 12-1)
* Before you image chain of custody.
* What to image.
* How to image. (hands on instruction)
Volatile data (Thursday February 18th 12-1)
* What is it.
* Where is it.
* How to capture it.
Secure you evidence (Thursday Feburary 25th 12-1)
* Transporting evidence.
* data security.
* Transferring your evidence.
District Court Rejects Total Dismissal of Claims, Orders Partial Dismissal and $75,000 in Monetary Sanctions for Egregious Discovery Violations
January 26, 2010
Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., 2009 WL 5218035 (M.D. Fla. Aug. 3, 2009); Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., 2010 WL 55595 (M.D. Fla. Jan. 5, 2010)
Following her finding that “[Bray & Gillespie], through counsel, acted willfully and in bad faith in violation of the Federal Rules of Civil Procedure and this court’s orders” by failing to make reasonable efforts to search for and produce documents in response to court orders and by making repeated misrepresentations to the court, among other things, the Magistrate Judge recommended that the plaintiff’s claims be stricken and that the case be dismissed with prejudice. (For additional details of plaintiff’s discovery abuses, click here to be taken to a summary of a prior opinion in this case.) On review of that recommendation, the District Court Judge found total dismissal of all the plaintiff’s claims “an excessive remedy” and instead ordered the dismissal of all claims for damages arising from the alleged interruption of business at the Treasure Island Property and for the plaintiff to pay $75,000 to the defendant for expenses incurred in pursuit of its motion for sanctions.
In its opinion, the District Court acknowledged the egregious nature of plaintiff’s and plaintiff’s counsel’s many discovery failings. Despite these many violations, however, the court found the sanction of total dismissal of all claims “excessive” and chose instead to dismiss only the claims related to the Treasure Island Property, the property for which the late discovered evidence was relevant. Declining to adopt the Magistrate’s recommendation, the District Court found the defendant’s contention that the plaintiff’s failure to produce the Treasure Island evidence prevented the defendant from interviewing persons who could describe the condition of the Resort “unpersuasive” where the defendant admitted that certain relevant individuals had been “available to Defendant since the inception of litigation” and had not been interviewed. Also, the defendant’s appraisers had access to the relevant property throughout the relevant time period and took photos of the property to support the defendant’s case. The court also noted that the plaintiff’s conduct “has only related to the production of folios for the Treasure Island Property” and that “[t]o speculate without any evidentiary support that Plaintiff’s conduct in this area undermines the integrity of all discovery provided in the case is not appropriate.”
Contemplating a range of alternative sanctions from disallowing the plaintiff’s use of the folio evidence to the recommended dismissal of all claims (and denying the plaintiff’s motion for an extension of time for additional productions), the court determined the dismissal of the plaintiff’s claims related only to the Treasure Island Property was appropriate. Additionally, the court ordered the plaintiff to pay defendant $75,000 “for expenses reasonably incurred …in pursuit of [the] underlying motion. The court noted that “the amount may not suffice to cover all reasonable expenses incurred by Defendant” but that in combination with the dismissal sanction, the sanctions were “sufficient for the conduct at issue.”
A full copy of the August 3rd Report and Recommendation is available here.
A full copy of the January 5th Order is available here.
Case in Point 2010-01-25 05:00:32
January 25, 2010
About ‘Case in Point’ – ‘Case in Point’ is a weekly cartoon series, created by CaseCentral Corporation, that illustrates the lighter side of eDiscovery. ‘Case in Point’ also runs a contest inviting anyone from the expansive eDiscovery realm – lawyers, IT staff, judges, service providers, paralegals, writers and consultants – to submit their own humorous experience or a scenario they find particularly funny. Participants may submit cartoon ideas online at http://www.casecentral.com/caseinpoint/idea for consideration. Readers who see their idea turned into a cartoon will receive a copy of the final cartoon signed by the artist, Tom Fishburne.
Permission to reproduce ‘Case in Point’ cartoons is granted on the conditions that any cartoon used is reproduced “as is” and that the re-use is not for purposes of resale or direct compensation. Please provide CaseCentral with a copy of any such use by sending an email with attached sample to: caseinpoint@casecentral.com.
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About the cartoonist – CaseCentral is pleased to feature Tom Fishburne as the cartoonist behind ‘Case in Point.’ See Tom’s bio here: http://www.tomfishburne.com/tomfishburne/bio.html
About CaseCentral – Case in Point is sponsored by CaseCentral. Visit www.casecentral.com to learn more about CaseCentral’s eDiscovery products and services.
Please Provide Attribution When Using EDRM Materials!
January 24, 2010
We are proud of the efforts made by our participants, over 80 organizations and over 300 people in the 2009-2010 year, to put together an extensive set of e-discovery guidelines, standards and resources that are used around the world.
We encourage use of these materials. We charge nothing for their use. We put only one restriction on their use:
PROVIDE ATTRIBUTION
To provide attribution, all you need to do is cite to “EDRM (edrm.net)”:
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Upcoming Events – February
January 22, 2010
Information Week Virtual Event: Modernizing IT Governance, Risk and Compliance to Accelerate Flexibility and Visibility: “E-Discovery Drill Down: First hand insight on driving more efficiency, cost-value and priorities in electronic e-discovery initiatives.”
February 10, 2010
5:00-5:45 PM ET
K&L Gates Partner Thomas J. Smith will participate in a panel discussion focusing on document retention and management and “establishing compliant-driven policies that prevent overloading or underloading information that may need to be retrieved in the future.”
Click here to learn more and to register.
ABA Section of Litigation Corporate Counsel CLE Seminar: “Holding the Line on Reasonableness in E-Discovery”
February 13, 2010
Westin Mission Hills Resort
Rancho Mirage, CA
9:25-10:25 AM PT
K&L Gates Partner Martha J. Dawson will participate in a panel discussion: “Holding the Line on Reasonableness in e-Discovery.” This session will examine the standard of reasonableness in conducting electronic discovery, including the increasing trend toward a standard of perfection and strategies and tactics to correct it.
Click here to learn more and to register.
The Knowledge Congress: Legal Ethics and E-Discovery (Live Webcast)
February 17, 2010
12-2 PM ET
K&L Gates partner David R. Cohen will present on a number of topics, including compliance with preservation and production obligations, the duties of in-house vs. outside counsel, privilege issues and Fed. R. Evid. 502, and how to avoid common e-discovery pitfalls.
Click here to learn more and to register.
Computer forensics education directory now online
January 22, 2010
A directory providing details of computer forensics courses offered by academic institutions worldwide is now online at http://www.forensicfocus.com/computer-forensics-education-directory This directory will be updated each year to reflect current course offerings but additions or amendments are encouraged at any time and may be sent through our contact form. A second directory listing courses offered by commercial training providers is planned for later this year.
Convicted by your own computer
January 21, 2010
Charles Tendell of eCSi and Stephen Csajaghy of Rothgerber Johnson & Lyons in Denver. Sit down with Nina Sparano of Fox 31, to discuss how digital evidence has infiltrated today’s modern courts. “What you type text or email can, and will, be used against you in a court of law”
Steve Csajaghy of Rothgerber Johnson & Lyons LLP
“Every email, every text you send or receive, every time you go to a website, those can be searchable and discovered.”
The traces of data are called metadata. It’s the evidence of what you do online that traces your digital history.
“You can recreate what websites a person visits, what exact page he visits, how long he spends on a website,” adds Csajaghy.
Your electronic trail can track your habits and even your personality. When it comes to the law, technology rewrote the book.
“Profiles of how a person uses his computer, how quickly he responds to email, how often he sends texts,” he says. “It’s just really changed how lawyers do their jobs these days.”
Digital investigator, Charles Tendell of ECSI uses digital evidence to track down criminals, tracing their every move.
“We do a lot of reconstruction and a lot of timeline piecing together.”
The evidence he gathers can be used against you in a court of law.
“Your computer you wrote something or you got a picture of something and you hit delete and it’s gone… wrong,” says Tendell.
Charles adds, even the bad guys can know how to get the information from your device and piece it all back together.
“Think about all of the things you put on your computer you don’t want anyone else to see. Now think about where it all is when you delete it then you empty your recycle bin, it’s all still there.”
Investigators use special software to emulate your cell phone or computer and recover deleted information. In once case, evidence was uncovered from destroyed evidence and the criminal was prosecuted in court.
“He stole somebody’s car, the laptop was in the back seat of the car. He set fire to the car. We were able to recover the data of the hard drive and find the emails between him and the victim talking about how they were going to get the insurance money from the vehicle,” Charles says.
Experts say you have to go through great lengths to destroy a hard drive but there are tools out there that can completely wipe out your computer. Charles Tendell’s website has software you can download to wipe your computer. But remember if you wipe your hard drive, you lose everything on it and can never get it back. But a clean slate isn’t always the best idea.
“The absence of evidence 9 times out of 10 is just as bad as the evidence itself,” says Tendell.
Both Tendell and Csajaghy say, before you send any email or text, think about what you are writing before you hit “send.” That message may one day be taken out of context. Years later, that message could land you in court.
tags: eCSI, Electronic Crime Scene Investigations, eDiscovery, Computer forensics, Denver CO, computer, forensics, edd, denver, Colorado, experts, Rothgerber Johnson & Lyons LLP
Fifth Vere Software Online Investigation Basic Webinar Offered This Week
January 20, 2010
“Legal Issues with Online Investigation,” the fifth in a series of free webinars offered by Vere Software, will provide an overview of recent court decisions involving online investigations, with an emphasis on child exploitation crimes...