Linda Volonino is an e-discovery consultant and computer forensics expert who aids lawyers and judges in preparing for e-discovery. She is coauthor of Computer Forensics For Dummies. Ian Redpath is an attorney with 32 years of litigation experience in federal courts. He consults on e-discovery.

Introduction 1

Who Should Read This Book? 1

About This Book 2

What You're Not to Read 2

Foolish Assumptions 2

How This Book Is Organized 3

Part I: Examining e-Discovery and ESI Essentials 3

Part II: Guidelines for e-Discovery and Professional Competence 3

Part III: Identifying, Preserving, and Collecting ESI 4

Part IV: Processing, Protecting, and Producing ESI 4

Part V: Getting Litigation Ready 4

Part VI: Strategizing for e-Discovery Success 5

Part VII: The Part of Tens 5

Glossary 5

Icons Used in This Book 5

Where to Go from Here 6

Part I: Examining e-Discovery and ESI Essentials 7

Chapter 1: Knowing Why e-Discovery Is a Burning Issue 9

Getting Thrust into the Biggest Change in the Litigation 10

New rules put electronic documents under a microscope 11

New rules and case law expand professional responsibilities 12

Distinguishing Electronic Documents from Paper Documents 14

ESI has more volume 15

ESI is more complex 15

ESI is more fragile 16

ESI is harder to delete 17

ESI is more software and hardware dependent 18

Viewing the Litigation Process from 1,000 Feet 18

Examining e-Discovery Processes 20

Creating and retaining electronic records 20

Identifying, preserving, and collecting data relevant to a legal matter 21

Processing and filtering to remove the excess 22

Reviewing and analyzing for privilege 22

Producing what's required 23

Clawing back what sneaked out 23

Presenting at trial 24

Chapter 2: Taking a Close Look at Electronically Stored Information (ESI) 25

Spotting the ESI in the Game Plan 26

Viewing the Life of Electronic Information 27

Accounting for age 27

Tracking the rise and fall of an e-mail 29

Understanding Zubulake I 30

Taking the two-tier test 34

Preserving the Digital Landscape 36

Facing Sticker Shock: What ESI Costs 37

Estimating hard and hidden costs 39

Looking at the costs of being surprised by a request 40

Chapter 3: Building e-Discovery Best Practices into Your Company 43

Setting Up a Reasonable Defensive Strategy 44

Heeding judicial advice 45

Keeping ESI intact and in-reach 46

Braking for Litigation Holds 48

Insuring a stronghold 48

Getting others to buy-in 49

Holding on tight to your ESI 50

Putting Best Practices into Place 51

Forming Response Teams 54

Putting Project Management into Practice 55

Tackling the triple constraints 56

Managing the critical path 57

Maintaining Ethical Conduct and Credibility 57

Part II: Guidelines for e-Discovery and Professional Competence 59

Chapter 4: The Playbook: Federal Rules and Advisory Guidelines 61

Knowing the Rules You Must Play By 62

Deciphering the FRCP 63

FRCP 1 63

FRCP 16 63

FRCP 26 65

FRCP 33 and 34 66

Applying the Rules to Criminal Cases 66

F.R. Crim. P. Rule 41 71

F. R. Crim. P. Rule 16 71

F. R. Crim. P. Rule 17 and 17.1 71

Learning about Admissibility 71

Lessening the Need for Judicial Intervention by Cooperation 73

Limiting e-Discovery 74

Finding Out About Sanctions 75

Rulings on Metadata 77

Getting Guidance but Not Authority from Sedona Think Tanks 79

Collecting the Wisdom of the Chief Justices and National Law Conference 79

Minding the e-Discovery Reference Model 80

Following the Federal Rules Advisory Committee 81

Chapter 5: Judging Professional Competence and Conduct 83

Making Sure Your Attorney Gives a Diligent Effort 84

Looking at what constitutes a diligent effort 84

Searching for evidence 85

Producing ESI 86

Providing a certification 86

Avoiding Being Sanctioned 87

FRCP sanctions 87

Inherent power sanctions 89

Knowing the Risks Introduced by Legal Counsel 91

Acting bad: Attorney e-discovery misconduct 91

Relying on the American Bar Association and state rules of professional conduct 93

Learning from Those Who Gambled Their Cases and Lost 94

Policing e-Discovery in Criminal Cases 96

Part III: Identifying, Preserving, and Collecting ESI 99

Chapter 6: Identifying Potentially Relevant ESI 101

Calling an e-Discovery Team into Action 102

Clarifying the Scope of e-Discovery 104

Reducing the Burden with the Proportionality Principle 107

Proportionality of scale 107

Negotiating with proportionality 108

Mapping the Information Architecture 108

Creating a data map 108

Overlooking ESI 111

Describing data retention policies and procedures 112

Proving the reasonable accessibility of ESI sources 113

Taking Lessons from the Mythical Member 113

Chapter 7: Complying with ESI Preservation and a Litigation Hold 115

Distinguishing Duty to Preserve from Preservation 116

Following The Sedona Conference 116

The Sedona Conference WG1 guidelines 117

Seeing the rules in the WG1 decision tree 119

Recognizing a Litigation Hold Order and Obligation 119

Knowing what triggers a litigation hold 120

Knowing when to issue a litigation hold 120

Knowing when a hold delay makes you eligible for sanctions 122

Accounting for downsizing and departing employees 122

Throwing a Wrench into Digital Recycling 123

Suspending destructive processes 123

Where do you put a terabyte? 124

Implementing the Litigation Hold 125

Documenting that custodians are in compliance 127

Rounding up what needs to be collected 127

Judging whether a forensics-level preservation is needed 130

Chapter 8: Managing e-Discovery Conferences and Protocols 133

Complying with the Meet-and-Confer Session 133

Preparing for the Meet-and-Confer Session 136

Preservation of evidence 136

Form of production 137

Privileged or protected ESI 138

Any other issues regarding ESI 139

Agreeing on a Timetable 139

Selecting a Rule 30(b)(6) Witness 140

Finding Out You and the Opposing Party May Have Mutual Interests 141

Part IV: Processing, Protecting, and Producing ESI 143

Chapter 9: Processing, Filtering, and Reviewing ESI 145

Planning, Tagging, and Bagging 146

Taking a finely tuned approach 147

Finding exactly what you need 147

Stop and identify yourself 149

Two wrongs and a right 150

Learning through Trial and Error 151

Doing Early Case Assessment 152

Vetting vendors 153

Breaking Out the ESI 154

Crafting the Hunt 156

Deciding on filters 156

Keyword or phrase searching 157

Deduping 157

Concept searching 158

Heeding the Grimm roadmap 158

Sampling to Validate 159

Testing the validity of the search 159

Documenting sampling efforts 160

Doing the Review 161

Choosing a review platform 161

How to perform a review 163

Chapter 10: Protecting Privilege, Privacy, and Work Product 165

Facing the Rising Tide of Electronic Information 166

Respecting the Rules of the e-Discovery Game 166

Targeting relevant information 167

Seeing where relevance and privilege intersect 168

Managing e-discovery of confidential information 170

Listening to the Masters 172

Getting or Avoiding a Waiver 172

Asserting a claim 173

Preparing a privilege log 173

Responding to ESI disclosure 175

Applying FRE 502 to disclosure 175

Leveling the Playing Field through Agreement 177

Checking out the types of agreements 177

Shoring up your agreements by court order 178

Chapter 11: Producing and Releasing Responsive ESI 181

Producing Data Sets 182

Packing bytes 183

Staging production 184

Being alert to native production motions 185

Redacting prior to disclosure 187

Providing Detailed Documentation 190

Showing an Unbroken Chain of Custody 192

Keeping Metadata Intact 193

Part V: Getting Litigation Ready 199

Chapter 12: Dealing with Evidentiary Issues and Challenges 201

Looking at the Roles of the Judge and Jury 202

Qualifying an Expert 202

Getting Through the Five Hurdles of Admissibility 204

Admitting Relevant ESI 204

Authenticating ESI 205

Self-authenticating ESI 206

Following the chain of custody 206

Authenticating specific types of ESI 207

Analyzing the Hearsay Rule 208

Providing the Best Evidence 210

Probing the Value of the ESI 210

Chapter 13: Bringing In Special Forces: Computer Forensics 211

Powering Up Computer Forensics 212

Knowing when to hire an expert 212

Knowing what to expect from an expert 214

Judging an expert like judges do 214

Doing a Scientific Forensic Search 215

Testing, Sampling, and Refining Searches for ESI 216

Applying C-Forensics to e-Discovery 218

Following procedure 219

Preparing for an investigation 220

Acquiring and preserving the image 222

Authenticating with hash 223

Recovering deleted ESI 224

Analyzing to broaden or limit 225

Expressing in Boolean 226

Producing and documenting in detail 228

Reinforcing E-Discovery 229

Fighting against forensic fishing attempts 229

Fighting with forensics on your team 230

Defending In-Depth 231