Electronic, Digital and Other Media

AuthorAshley S. Lipson
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
Table of Contents
§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
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
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.

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