An e-discovery primer: just what is ESI, information and digital data?

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As more and more attorneys, law firms, corporations and vendors join the Posse List and existing Posse List members move into parts of e-discovery outside of review, we’ve updated our e-discovery primers here on The Electronic Discovery Reading Room.  The focus on this site is “the basics” — getting started on learning about e-discovery.

In an e-discovery review, the collections process and its attendant considerations are paramount.  But just what, exactly, are you “collecting” and just what is ESI, information and data?

So, a primer … a very short primer.   Hence, “primer”.   We’ve sprinkled suggestions throughout, and we have lots of additional material at the end: 

What are “discovery” and “e-discovery”?

Discovery is the process of identifying, preserving, collecting, reviewing, analyzing and producing information during civil and criminal legal actions. The goal of discovery is to obtain information that will be useful in developing relevant information for pre-trial motions and for the trial itself. Information sought during discovery can include documents, testimony and other information that may be deemed necessary by a court, although not all discovery is court-imposed.

E-discovery is simply the extension of the discovery process to information that is stored electronically, including email, instant messages, word processing files, spreadsheets, social networking content, and any other electronic information that may be stored on desktops, laptops, file servers, mainframes, smartphones, employees’ home computers or on a variety of other platforms. 

We have posted numerous articles on how e-discovery has become become critical in the context of civil litigation.  For some excellent background see our “thought leaders” series by clicking here.   

Organizations can also use e-discovery tools outside the context of just civil litigation.  These uses include, but are not limited to, helping to manage and avoid employee misbehavior and legal actions; helping an organization to comply with its regulatory obligations; preserving intellectual property, knowledge and other data; storage management; and avoiding embarrassing data loss or leaks.  

Getting control of e-discovery starts with a) understanding why e-discovery is important, b) gaining insights into the issues and regulations that are most pertinent, and then c) creating strategies, capabilities and technologies to meet needs that will also help manage corporate data properly. 

So discovery is “the compulsory disclosure of pertinent facts or documents to the opposing party in a civil action, usually before a trial begins.” E-discovery is simply the extension of this well-established process to the electronic content that an organization might possess, including email messages, instant messages, word processing files, spreadsheets, presentations, purchase orders, contracts, social networking content, files stored in collaboration systems, and all other electronic content to which an organization might have access. Further, e-discovery may extend to all of the devices on which this data might be stored, including desktop computers, laptops, smartphones, backup tapes and systems, servers of all types and even employees’ home computers, although not necessarily for some systems that are determined to be inaccessible. 

As we have chronicled in numerous posts, electronic content is growing by leaps and bounds.  How bad?  Check out this video from Jason R. Baron and Ralph Losey (click here)

Unified communications and unified messaging systems will make these problems significantly worse as they add additional data to the already crowded mix of data types that organizations must retain and manage.  In addition, organizations of all types are creating and using new types of electronic content at an ever increasing pace. These newer types of content include collaboration related content created by document management and collaboration tools; social networking tools like blogs, Twitter, LinkedIn and Facebook; new types of electronic content like digital media and new software programs; structured data sources like databases; and the other content types that are emerging or will be created during the next few years. 

Key E-Discovery Issues to Understand

Next, let’s consider the key e-discovery issues to understand.

THE ELECTRONIC DISCOVERY REFERENCE MODEL (EDRM) 

The Electronic Discovery Reference Model (EDRM) Project (diagrammed in the following figure)

                               

was a response to the relatively few standards and lack of generally accepted guidelines for the process of e-discovery that existed prior to its development.  The team that developed the EDRM was facilitated by George Socha (Socha Consulting LLC) and Tom Gelbmann (Gelbmann & Associates), and included 62 organizations, among whom were software developers, law firms, consulting firms, professional organizationsand large corporations. 

Begun in May 2005, the EDRM Project had as its goal the creation of a framework for the “development, selection, evaluation and use of electronic discovery products and services”. The EDRM, which was placed into the public domain in May 2006, is designed to help organizations manage the process of e-discovery from the initial stages of managing electronic information through to its presentation.  The development of the EDRM was important because it represented a major step forward in the standardization of the e-discovery process. Standardization will become increasingly important for e-discovery for several reasons, most notably because of the growth in quantity and diversity of ESI and the large number of entities that will need to process this data (internal and external legal counsel, senior managers, archiving vendors, outside forensics firms and others).  For much more detail go to the EDRM website by clicking here.

The EDRM is divided into eight sections that focus on the process of managing an ediscovery effort.  Very briefly:

Identification

Understand the “inventory” of ESI that might be relevant in a particular legal action and that might have to be presented during discovery. At this point in the process, discovery demands, disclosure obligations and other pertinent claims and demands are reviewed and considered. The goal at this stage of the process is to understand the universe of information that might be required in order to respond to appropriate ediscovery requests and then determine the subset of information that will be relevant for further processing.

Preservation

This is a critical step that ensures that ESI is protected from spoliation and modification, such as through the imposition and enforcement of a legal hold on all relevant ESI. If spoliation does occur, the consequences can be expensive.  And lately there have been a boatload of cases on the need for preservation … and the resulting sanctions for “bad” preservation.  Best website for keeping track of the critical case law in e-discovery?  Ralph Losey’s blog E-Discovery Team (click here).

 Collection

During this phase, all relevant ESI is collected from the various sources that contain it, including messaging archives, backup tapes, file servers, desktops, laptops, employees’ home computers, smartphones and other sources.

Processing

At this point, collected data should be de-duplicated in order to reduce the amount of data that must be processed during subsequent phases of the discovery process.  Collected data should also be prioritized into a) that content that will likely be relevant later in the process and b) content that will likely not be relevant. At this point, decision makers may want to convert ESI into a form that will permit the most efficient and thorough review of its contents.

Review

Where the contract attorneys come in.  The review phase includes redacting ESI as appropriate, evaluating the content for its relevance, determining if specific items are subject to attorney-client privilege, etc.

Analysis

This phase involves a variety of activities, including determining exactly what the ESI means in the context of the legal action at hand, developing summaries of relevant information, determining the key issues on which to focus, etc.

Production

The production of data involves delivering the relevant ESI to any parties or systems that will need it. It also includes the activities focused on delivering ESI in the appropriate form(s), including DVDs, CD-ROMs, paper, etc.

Presentation

The presentation of ESI is a key consideration at various points of the e-discovery process – as information is reviewed, analyzed, produced, etc. The specific forms of presentation for ESI will vary widely depending on the content; how, where and by whom the content will be presented; and other factors.

THE FEDERAL RULES OF CIVIL PROCEDURE

The FRCP are a set of rules focused on governing court procedures for managing civil suits in the United States district courts. While the United States Supreme Court is responsible for creating and managing the FRCP, the United States Congress must approve these rules and any changes made to them.

One of the most important drivers for e-discovery has been the new set of amendments to the FRCP that went into effect on December 1, 2006. These changes represented several years of debate at various levels and are having a significant impact on electronic discovery and the management of electronic data within organizations that do business in the United States. The changes to the FRCP require organizations to manage their data in such a way that this data can be produced in a timely and complete manner when necessary, such as during legal discovery proceedings.

The amendments to Rules 16, 26, 33, 34, 37, 45 and revisions to Form 35 are aimed at electronically stored information (ESI). The amendments attempt to deal with the important issues presented by ESI, including:

* ESI is normally stored in much greater volume than are hard copy documents.

*  ESI is dynamic, in many cases modified simply by turning a computer on and off.

*  ESI can be incomprehensible when separated from the systems that created it.

*  ESI contains non-apparent information, or metadata, that describes the context of the information and provides other useful and important information.

The changes reflect the reality that discovery of email and other ESI is now a routine, yet critical, aspect of every litigated case:

*  First, the amendments treat ESI differently.

*  Second, they require early discussion of and attention to electronic discovery.

*  Third, they address inadvertent production of privileged or protected materials.

*  Fourth, they encourage a two tiered approach to discovery – deal with reasonably accessible information and then later with inaccessible data.

*  Finally, they provide a safe harbor from sanctions by imposing a good faith requirement.

Unlike many information retention requirements in specific industries, such as those imposed upon broker-dealers, hedge fund managers and investment advisors by the Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA), the FRCP apply to virtually all organizations in all industries, including private, public and non-profit organizations. In short, if an organization can have a civil lawsuit filed against it, then the FRCP should figure prominently in that organization’s data management strategy.

FEDERAL RULES OF EVIDENCE

The Federal Rules of Evidence (FRE), formally enacted in 1975, are a set of rules that determine how evidence is presented during trial in the US federal courts. These rules are focused primarily on the initial presentation of evidence during trials. Individual states may use these rules as the basis for their own rules of evidence, or they may adopt a different set of rules for presenting evidence at trial. It is important to note that for purposes of presenting evidence, a printed or otherwise human-readable version of electronic evidence is considered to be an original and can be presented at trial according to FRE Rule 1001(3).

Authentication is a very important part of the e-discovery process because its goal is to prove that a document is what its presenter claims it to be – a true and verifiable representation of an electronic document. Authentication for electronic content is even more critical than for paper-based documents, since electronic documents are more easily altered. Therefore, in order to prove the authenticity of a particular electronic document, such as an email, those submitting this evidence must provide affidavits or otherwise demonstrate that an original document was not modified after the fact.

Despite the admissibility of electronic evidence in court proceedings, the authenticity of electronic records is a major issue that many organizations have not considered adequately.

STATE LAWS IN THE UNITED STATES BASED ON FRCP

The FRCP represents just the tip of the iceberg: many US states have already passed, or will soon pass, their own version of the FRCP for civil litigation that takes place within their respective state court systems. For example:

*  Minnesota modified its Rules of Civil Procedure, effective July 1, 2007, establishing procedures for the discovery of ESI.

*  New Jersey adopted the new FRCP e-discovery rules effective September 1, 2006.

*  Texas adopted Rule of Civil Procedure 196.4 in 1999, which states, in part, “to obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request [it] and specify the form in which the requesting party wants it produced.”

*  Other states that have integrated the new FRCP amendments into their respective statutes include Utah, Louisiana, Arizona, Montana and Indiana.

*  A number of other states are also considering enhancements to their civil procedure laws that will focus more on ESI. Among these states are Washington, Alaska, Florida, Illinois, Kansas, Connecticut, Ohio and Virginia.

LAWS OUTSIDE OF THE UNITED STATES AND CANADA

While e-discovery in North American legal proceedings is difficult enough, laws in other parts of the world can significantly complicate e-discovery (often referred to as “edisclosure” outside of the United States). For example:

*  The European Commission Directive 95/46/EC, adopted in October 1995, was designed to standardize the protections for data privacy among all of the member states of the European Union and to protect individuals’ right to privacy. The Directive focuses on the processing of individual’s data within the EU, but also applies to any entity outside of the EU to whom this data might be provided, such as during an ediscovery exercise. The Directive does not permit data to be provided to anyone whose national laws do not adequately safeguard privacy rights.

*  France imposes even more stringent requirements than Directive 95/46. French Penal Code, Law No 80 – 538 imposes fines and/or jail time for those who seek, request or disclose information intended to develop evidence for foreign legal proceedings.

*  Blocking statutes, such as the French law noted above, have been in place for many years in various countries and were enacted specifically to block discovery proceedings. For example, blocking statutes exist in Ontario, Canada (Business Records Protection Act), the United Kingdom (The Shipping and Commercial Documents Act) and the Netherlands (Economic Competition Act).

*  Australia’s Supreme Court of Victoria, in its Practice Note No. 1 of 20074 (February 2007), strongly suggested that parties to a legal action should consider using technology to improve the efficiency of legal proceedings, including e-discovery.  The Federal Court of Australia has gone further and developed e-discovery rules similar to those contained in the new amendments to the FRCP.

*  India’s Technology Act of 2000 modified the country’s rules of evidence, effectively expanding the scope of electronic data in e-discovery efforts and widening parties’ obligations for producing electronic data.

What Should You Do Next?

We have lots of other sources for information on this site.   Just tool around the home page.  But to give you some suggestions:

1.  Check our E-Discovery Blog Roll.  You will find a link at the top of the left hand column.  These are web sites and blogs that offer plenty of basic (and advanced) materials on e-discovery.

2.   A good over view white paper from Googl can be accessed here.

3.  Check out a very cool item Rob Robinson of Applied Discovery has on Scribd titled “Considering ESI, Information, and Data?”  It is a very authoritative review of the whole collection process with some excellent reference notes on further sources.   You can access the post by clicking here and you can follow Rob on Twitter by clicking here or via his web site by clicking here.

4.  We mentioned Ralph Losey before.  THE authority on e-discovery case law.  His site is here.

5.  Another great reference we recommend is The Sedona Conference Glossary “E-Discovery & Digital Information Management” which you can access here.

6.  And download Mary Mack’s book (it’s free) called A Process of Illumination which you can do via the link we put in the right hand column.  It’s just below the FIOS logo.

Issue?  Questions?  Need more help?  Then email us at The Electronic Discovery Reading Room and we’ll see if we can assist: manager@theposselist.com 

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