Electronic, Digital and Other Media

• Author: Ashley S. Lipson
• Pages: 67-135

3-65

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

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

§3.44 Constructing ESI Demands

§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

Guerrilla discOvery 3-66

§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

3-67 electrOnic, diGital and Other media §3.01

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 evidence, 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 probably

concentrate on electronic and digital evidence (now

commonly referred to as “Electronically Stored Informa-

tion” or ESI) for some time to come, the practitioner 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 dis-

covery, 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 Chap-

ter 8 (Requests For Inspection).3 And, concerning your

own demonstrative exhibits, there is normally no prob-

lem with respect to destruction or alteration since you

can destroy them at will, and well you should if they fail

to present a favorable 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 hap-

pened 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

automatically replicated, thereby geometrically

multiplying the “paperwork.” Attachments fur-

ther complicate and multiply information.

3. Transportability: An entire truckload of docu-

ments can be transported by a single jump drive.

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

tually dies or goes away, but not ESI. You may

think that the “delete” button gets rid of incrimi-

nating 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 particular-

ly true of metadata.

6. Environmental Dependence: To be accessed

and read, ESI normally requires specific soft-

ware, which in turn requires hardware. Both

hardware and software become obsolete, some-

times rendering the ESI difficult, if not impos-

sible 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 gen-

eral, and businesses in particular, the popular-

ity of ESI has definitely “caught on.” Due, in

part, to the ease of authorship and, in part, to

the popularity of an ever-expanding variety of

new recording devices, the amount of data cre-

ated daily has increased exponentially. For this

expansion, there seems to be no end in sight.

§3.01 Electronically Stored

Information

Computerized document generation and storage is

not particularly new; the media has now been with us for

several decades. What is new, however, is the acceler-

ation of the use and storage capabilities for digital data

in general. What became popularized in the 1980’s as

indicia of efficiency-minded businesses and computer

aficionados has become standard fare for the population

in general. We can now maintain small libraries on little

jump drives that measure storage in terms of gigabytes.

Just a few years ago, the megabyte ruled, and just prior

to that, we measured our computer power in terms of