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 Media
§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.
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
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

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