Electronic, Digital and Other Media

• Author: Ashley S. Lipson
• Pages: 79-162

If we continue to develop our technology without

wisdom or prudence, our servant may prove to be our

executioner. - General Omar Bradley

Chapter 3

Electronic, Digital and Other

Media

Table of Contents

Foreword

§3.01 Electronically Stored Information

§3.02 A Comparison of Federal and State ESI Discovery Rules

§3.10 Preservation and Destruction

§3.11 Arguments and Authority

§3.11(a) For the Discovering Party

§3.11(b) For the Defending Target

§3.12 Preservation Notice

§3.12(a) Threshold Considerations

§3.12(b) How to Construct a Preservation Letter

§3.12(c) Response to the Preservation Letter

§3.13 Spoliation

§3.20 Evidentiary Analysis

§3.21 Testimonial Evidence

§3.22 Documentary Evidence

§3.22(a) Electronic Documents and Messages

§3.22(b) Locating Hidden Information

§3.22(c) Your Client’s Compliance

§3.22(d) Cost Shifting

§3.23 Real Evidence

§3.24 Demonstrative Evidence

§3.30 Terminology

§3.40 Electronic Discovery Checklists

§3.41 Sedona Principles

§3.42 Guerrilla Principles

§3.43 Electronic Medical Records

contents continued on next page

Guerrilla Discovery 3-2

§3.50 Searching Electronic Data

§3.51 E-Vendors

§3.52 The Boolean Search

§3.53 Key Word Stipulations and Protocol

§3.54 Computer Assisted Review

§3.55 Predictive Coding

§3.60 The Forms That You Need

Form 3.1 Motion for Reconstruction of Electronic Data

Form 3.2 Motion to Shift Costs for Reconstructive Electronic Data

Discovery

Form 3.3(a) Petition for TRO and Order to Show Cause Prohibiting

Defendant from Accessing its Computers Pending the

Inspection of Mirror Image Bit Stream Backups of all

Relevant Electronic Data

Form 3.3(b) Response to Petition for TRO and Order to Show Cause

Prohibiting Defendant from Accessing, Using or Booting

its Computers Pending the Inspection and Production

of Mirror Image Bit Stream Backups of all Relevant

Electronic Data

Form 3.4 Plaintiff’s Interrogatories to Defendant (Seeking Discovery of

Computerized Documents and Equipment)

Form 3.5 Declaration of Computer Expert in Support of Relief

Requested by Petitioner

Form 3.6 Interrogatories to Suspected Spoliator

Form 3.6(a) Interrogatories From Accused Spoliator

3-3 electronic, DiGital anD other meDia

1 See infra, §7.64.

2 See infra, §3.12.

3 See infra, §8.63

FOREWORD

This chapter focuses on the manner in which

all types of evidence are generated, gathered and

preserved prior to the start of the discovery process.

It is no secret that the pre-suit handling of evidence

has become an important integral part of the pre-trial

discovery process. Extraordinary costs, penalties and

sanctions are imposed regularly with respect to the

destruction and alteration of potentially relevant evi-

dence, even where that evidence has been tampered

with long before a complaint and summons were ever

filed or contemplated.

Despite the fact that the spotlight will proba-

bly concentrate on electronic and digital evidence

(now commonly referred to as “Electronically Stored

Information” or ESI) for some time to come, the prac-

titioner is urged not to ignore other forms of evidence.

The failure to properly manage potentially relevant

paper or other physical objects can be just as serious.

Even though ESI appears to be the focal point

of this chapter, keep in mind that the principles and

case law provided might as well apply to other forms.

Also, since the “preservation” issue pervades the entire

field of discovery, its discussions are not limited to this

chapter. For example, with respect to the destruction

of documents in general, refer to Chapter 7 (Notices

For Production)1 which also applies to the care and

handling of electronic documents.2 The destruction

of physical objects (more correctly termed “Real

Evidence”) is dealt with in Chapter 8 (Requests For

Inspection).3 And, concerning your own demonstrative

exhibits, there is normally no problem with respect to

destruction or alteration since you can destroy them at

will, and well you should if they fail to present a favor-

able tilt to your claim or defense.

Electronically stored information has managed to

capture the spotlight because of the special problems

and expenses that it has created for the legal communi-

ty. Those difficulties result from some unique attributes

possessed by ESI that are not shared by paper, once the

hallmark of the legal profession since the beginning of

time. Consider the distinguishing attributes of ESI:

1. Duplicability: Faster than the fastest paper

photocopier, massive amounts of ESI can

be effortlessly replicated.

2. Reproducibility: Imagine, for a moment

that each time you responded or replied to

a paper writing, you first reproduced the

communication that you received in its

entirety. This rarely happened in the age of

paper because it would have been a total

waste of time. Yet, each time you respond to

an e-mail, all preceding messages are auto-

matically replicated, thereby geometrically

multiplying the “paperwork.” Attachments

further complicate and multiply information.

3. Transportability: An entire truckload of

documents can be transported by a single

jump drive.

4. Persistence: Even a bad itch or an ex-spouse

eventually dies or goes away, but not ESI.

You may think that the “delete” button

gets rid of incriminating information, but it

doesn’t. The information can still often be

retrieved from your hard drives, and if not,

there is probably some lonely server out

there that has stored it perpetually.

5. Changeability: ESI can be quickly and

easily altered, often unintentionally; this is

particularly true of metadata.

6. Environmental Dependence: To be

accessed and read, ESI normally requires

specific software, which in turn requires

hardware. Both hardware and software

become obsolete, sometimes rendering the

ESI difficult, if not impossible to access.

7. Facial Invisibility: You can’t grab a jump

drive and peruse through its contents as you

can paper. In fact, even with proper labeling,

it is often impossible to appreciate the nature

or quantity of the “book” by its cover.

8. Exponential Expansion: For the public in

general, and businesses in particular, the

popularity of ESI has definitely “caught

on.” Due, in part, to the ease of author-

ship and, in part, to the popularity of an

ever-expanding variety of new recording

devices, the amount of data created daily has

increased exponentially. For this expansion,

there seems to be no end in sight.