Electronic Discovery: From Preservation to Production

1. Introduction
1. We have become an increasingly digital society. creates a trail of complicated legal discovery.
2. As technology simplifies daily business activities, it simultaneously
3. The changing face of communications present lawyers with new challenges and opportunities in the realm of electronic discovery.
2. Overview of Electronic Documents
1. Electronic Documents
2. Data Types
3. Unique Aspects of Electronic Documents
3. Electronic Discovery
1. Electronic discovery is the process of identifying, collecting, screening and producing electronically stored data in response to a discovery request.
2. Electronic discovery leads logically to electronic evidence.
3. Practical Advantages
4. Unique Problems of Electronic Discovery
1. Preservation of Data
2. Location and Volume
3. E-mail
4. Deleted Documents
5. Backup Tapes
6. Archives and Legacy Data
7. On-site inspections
8. Form of Production
9. Need for experts
5. The duty to preserve and spoliation.
1. The law imposes a duty to preserve salient data on all parties to the litigation.
2. In electronic discovery it may be difficult to distinguish between reasonable and unreasonable destruction of documents.
3. The issue is not whether evidence will be destroyed, but how much information can be destroyed before a party is accused of spoliation.
4. A clear and consistently implemented electronic document retention policy can be a powerful way to protect an organization.
5. Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or future litigation.
6. Texas courts define spoliation as the intentional destruction of relevant evidence which gives rise to a presumption that the destroyed evidence would not have been favorable to the party destroying it.
6. Pertinent Discovery Rules
1. The same discovery principles that apply to paper-based records apply with equal force to electronic-based records.
2. Generally Federal Rules 26 and 34 control electronic discovery requests.
3. Texas State Courts have developed a specific civil procedure rule on electronic discovery. The Texas rules seek to strike a balance between the propounding party's rights to discovery and the defendant's rights to be protected from undue burden.
4. ABA standards
7. Conducting Electronic Discovery and Producing Electronic Documents
1. Basic Guidelines
2. Take action as early as possible.
3. If at all practicable, get a preservation order, otherwise issue a preservation letter or enter into a preservation agreement immediately.
4. Do Not Alter Original Evidence
5. Isolate and preserve electronic information.
6. Learn the technology
7. Decide the format in which the electronic information will be produced.
8. Clearly lay out the terms for the production of electronic documents.
9. Engage the appropriate technical personnel and computer forensic experts to collect and prepare relevant electronic evidence.
10. Examine the information produced.
8. Costs
1. Although the costs associated with electronic discovery can be exorbitant, given the increasing use of electronic communications, it is unwise to agree not to seek discovery of electronic information.
2. It may be in both parties best interest to enter into an agreement for the purposes of allocating electronic discovery costs.
3. Electronic discovery may result in a natural shift in cost allocation because the cost of production is usually greater than the cost of discovery.
4. The need for experts also increases costs.
5. Notwithstanding the up-front costs, there may be significant long-term savings.
6. Example cases:
9. Managing Electronic Information
1. Technology Decisions
2. Resources
10. Additional Materials
1. Case Law
2. Sample Documents
3. Technical Questions
4. Topical Articles.

Full Text

This paper is available as a benefitof membership to Construction Law Section members. If you are already a member, just use one of the links above and enter your username and password when prompted. Here's how to join Construction Law Section and gain access to this material.

You must have the free Adobe Acrobat Reader 4.0 (or greater) installed in your computer in order to view or print this paper. It is available as free download from the Adobe Web site. If you do not have Acrobat Reader installed, click the link to the left to download it. If menu window opens before the paper, choose the "View" option.