Vol. 30, No. 4, #4. IT Tips for eDiscovery Best Practices.

AuthorAuthor: Oliver Fuchsberger

Wyoming Bar Journal

2007.

Vol. 30, No. 4, #4.

IT Tips for eDiscovery Best Practices

Issue: August, 2007 Author: Oliver FuchsbergerIT Tips for eDiscovery Best PracticesBefore we look at tips for dealing with electronic discovery it is important to understand the issues pertaining to electronic discovery and why the amendments to the FRCP were implemented in December of 2006. Electronically stored information ("ESI") carries with it a slew of issues and complexities not found in the paper discovery world.

The first issue is the sheer volume of "ESI". In the last 20 years information has gone from being stored in kilobytes and megabytes to being stored in terabytes and petabytes. Depending on the decisions made with respect to the scope of discovery, the volume of "ESI" to be collected and reviewed can easily reach gargantuan proportions.

Second, "ESI" is ever changing. Data is constantly being overwritten. The mere act of turning on a PC can overwrite electronic files. To keep file servers from bloating and thereby hampering optimum performance, unused files are overwritten in the ordinary course of business of a system's operation. In the event that files need to be preserved, IT procedures will need to be changed and special consideration given to protecting data from being overwritten.

Third, electronic files are multi-dimensional in that they have multiple layers. Certain layers (information) may not be apparent when an electronic file is viewed or printed. Examples of hidden file layers include Excel formulas, track changes in Word, and metadata (data about the file including author, last edit date, date created, blind copies, etc.). Determinations must be made as to whether the hidden layers are relevant to the case, and/or whether they impact the privilege status of a file. More importantly, the electronic files must be handled in such a way as to preserve those layers, should they become discoverable later in the case.

Finally, "ESI" is not as readily viewable as paper. Each electronic file requires a separate program or application to make sense of the file. Each program or application may cost money and take time to learn. For older files, the program or application needed to review the file may no longer exist.

Each of these issues escalates costs. When significant volumes of "ESI" exist, converting electronic files to paper files becomes an extremely expensive proposition. Changing IT processes or removing personal computing devices from circulation to preserve electronic files can have dire financial impact on a company. Additionally, preserving every piece of electronic data increases the amount of data that must...

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