Publisher Description

Discover the process of e-discovery and put good practices in place. Electronic information involved in a lawsuit requires a completely different process for management and archiving than paper information. With the recent change to Federal Rules of Civil Procedure making all lawsuits subject to e-discovery as soon as they are filed, it is more important than ever to make sure that good e-discovery practices are in place. e-Discovery For Dummies is an ideal beginner resource for anyone looking to understand the rules and implications of e-discovery policy and procedures. This helpful guide introduces you to all the most important information for incorporating legal, technical, and judicial issues when dealing with the e-discovery process. You'll learn the various risks and best practices for a company that is facing litigation and you'll see how to develop an e-discovery strategy if a company does not already have one in place. E-discovery is the process by which electronically stored information sought, located, secured, preserved, searched, filtered, authenticated, and produced with the intent of using it as evidenceAddresses the rules and process of e-discovery and the implications of not having good e-discovery practices in placeExplains how to develop an e-discovery strategy if a company does not have one in place e-Discovery For Dummies will help you discover the process and best practices of managing electronic information for lawsuits.

Back Cover

Learn to: Follow the correct steps in the e-discovery process Anticipate potential risks Develop an e-discovery strategy for your company Identify best practices in the event of litigation Be prepared for legal action! Learn about e-discovery rules, protections, and vulnerabilities Here are the issues, challenges, strengths, and limitations of e-discovery in an easy-to-understand guide. Find out how to identify, protect, and produce electronically stored information, prepare for litigation, avoid tainting evidence, and much more. It's a much better (and cheaper) way to learn about this hot legal issue than through experience! What happened -- explore the legal changes that made e-discovery an issue and what they mean to you Your ESI IQ -- get a comprehensive look at your electronically stored information (ESI) and how to manage it effectively Set up a team -- assemble a team of employees from your IT and Legal departments and establish how to work together on important e-discovery projects Make a plan -- identify potentially relevant ESI and how to comply with litigation holds Put the plan into action -- preserve ESI, redact privileged info, and produce ESI in its native format, including metadata If you're challenged -- find out how to evaluate admissibility and document your evidence Be prepared -- build an electronic records management program and policy and monitor compliance Call for backup -- know when to bring in outside vendors and computer forensics specialists Open the book and find: Why you can't ignore e-discovery How to prepare for litigation Ten essential e-discovery rules How to create a data map What data to keep How to set up a document repository Suggestions for controlling your e-discovery costs How to review, process, and filter information

Flap

Learn to: Follow the correct steps in the e-discovery process Anticipate potential risks Develop an e-discovery strategy for your company Identify best practices in the event of litigation Be prepared for legal action! Learn about e-discovery rules, protections, and vulnerabilities Here are the issues, challenges, strengths, and limitations of e-discovery in an easy-to-understand guide. Find out how to identify, protect, and produce electronically stored information, prepare for litigation, avoid tainting evidence, and much more. It's a much better (and cheaper) way to learn about this hot legal issue than through experience! What happened -- explore the legal changes that made e-discovery an issue and what they mean to you Your ESI IQ -- get a comprehensive look at your electronically stored information (ESI) and how to manage it effectively Set up a team -- assemble a team of employees from your IT and Legal departments and establish how to work together on important e-discovery projects Make a plan -- identify potentially relevant ESI and how to comply with litigation holds Put the plan into action -- preserve ESI, redact privileged info, and produce ESI in its native format, including metadata If you're challenged -- find out how to evaluate admissibility and document your evidence Be prepared -- build an electronic records management program and policy and monitor compliance Call for backup -- know when to bring in outside vendors and computer forensics specialists Open the book and find: Why you can't ignore e-discovery How to prepare for litigation Ten essential e-discovery rules How to create a data map What data to keep How to set up a document repository Suggestions for controlling your e-discovery costs How to review, process, and filter information

Author Biography

Linda Volonino is an e-discovery consultant and computer forensics expert who aids lawyers and judges in preparing for e-discovery. She is coauthor of Computer Forensics For Dummies. Ian Redpath is an attorney with 32 years of litigation experience in federal courts. He consults on e-discovery.

Table of Contents

Introduction 1 Who Should Read This Book? 1 About This Book 2 What You're Not to Read 2 Foolish Assumptions 2 How This Book Is Organized 3 Part I: Examining e-Discovery and ESI Essentials 3 Part II: Guidelines for e-Discovery and Professional Competence 3 Part III: Identifying, Preserving, and Collecting ESI 4 Part IV: Processing, Protecting, and Producing ESI 4 Part V: Getting Litigation Ready 4 Part VI: Strategizing for e-Discovery Success 5 Part VII: The Part of Tens 5 Glossary 5 Icons Used in This Book 5 Where to Go from Here 6 Part I: Examining e-Discovery and ESI Essentials 7 Chapter 1: Knowing Why e-Discovery Is a Burning Issue 9 Getting Thrust into the Biggest Change in the Litigation 10 New rules put electronic documents under a microscope 11 New rules and case law expand professional responsibilities 12 Distinguishing Electronic Documents from Paper Documents 14 ESI has more volume 15 ESI is more complex 15 ESI is more fragile 16 ESI is harder to delete 17 ESI is more software and hardware dependent 18 Viewing the Litigation Process from 1,000 Feet 18 Examining e-Discovery Processes 20 Creating and retaining electronic records 20 Identifying, preserving, and collecting data relevant to a legal matter 21 Processing and filtering to remove the excess 22 Reviewing and analyzing for privilege 22 Producing what's required 23 Clawing back what sneaked out 23 Presenting at trial 24 Chapter 2: Taking a Close Look at Electronically Stored Information (ESI) 25 Spotting the ESI in the Game Plan 26 Viewing the Life of Electronic Information 27 Accounting for age 27 Tracking the rise and fall of an e-mail 29 Understanding Zubulake I 30 Taking the two-tier test 34 Preserving the Digital Landscape 36 Facing Sticker Shock: What ESI Costs 37 Estimating hard and hidden costs 39 Looking at the costs of being surprised by a request 40 Chapter 3: Building e-Discovery Best Practices into Your Company 43 Setting Up a Reasonable Defensive Strategy 44 Heeding judicial advice 45 Keeping ESI intact and in-reach 46 Braking for Litigation Holds 48 Insuring a stronghold 48 Getting others to buy-in 49 Holding on tight to your ESI 50 Putting Best Practices into Place 51 Forming Response Teams 54 Putting Project Management into Practice 55 Tackling the triple constraints 56 Managing the critical path 57 Maintaining Ethical Conduct and Credibility 57 Part II: Guidelines for e-Discovery and Professional Competence 59 Chapter 4: The Playbook: Federal Rules and Advisory Guidelines 61 Knowing the Rules You Must Play By 62 Deciphering the FRCP 63 FRCP 1 63 FRCP 16 63 FRCP 26 65 FRCP 33 and 34 66 Applying the Rules to Criminal Cases 66 F.R. Crim. P. Rule 41 71 F. R. Crim. P. Rule 16 71 F. R. Crim. P. Rule 17 and 17.1 71 Learning about Admissibility 71 Lessening the Need for Judicial Intervention by Cooperation 73 Limiting e-Discovery 74 Finding Out About Sanctions 75 Rulings on Metadata 77 Getting Guidance but Not Authority from Sedona Think Tanks 79 Collecting the Wisdom of the Chief Justices and National Law Conference 79 Minding the e-Discovery Reference Model 80 Following the Federal Rules Advisory Committee 81 Chapter 5: Judging Professional Competence and Conduct 83 Making Sure Your Attorney Gives a Diligent Effort 84 Looking at what constitutes a diligent effort 84 Searching for evidence 85 Producing ESI 86 Providing a certification 86 Avoiding Being Sanctioned 87 FRCP sanctions 87 Inherent power sanctions 89 Knowing the Risks Introduced by Legal Counsel 91 Acting bad: Attorney e-discovery misconduct 91 Relying on the American Bar Association and state rules of professional conduct 93 Learning from Those Who Gambled Their Cases and Lost 94 Policing e-Discovery in Criminal Cases 96 Part III: Identifying, Preserving, and Collecting ESI 99 Chapter 6: Identifying Potentially Relevant ESI 101 Calling an e-Discovery Team into Action 102 Clarifying the Scope of e-Discovery 104 Reducing the Burden with the Proportionality Principle 107 Proportionality of scale 107 Negotiating with proportionality 108 Mapping the Information Architecture 108 Creating a data map 108 Overlooking ESI 111 Describing data retention policies and procedures 112 Proving the reasonable accessibility of ESI sources 113 Taking Lessons from the Mythical Member 113 Chapter 7: Complying with ESI Preservation and a Litigation Hold 115 Distinguishing Duty to Preserve from Preservation 116 Following The Sedona Conference 116 The Sedona Conference WG1 guidelines 117 Seeing the rules in the WG1 decision tree 119 Recognizing a Litigation Hold Order and Obligation 119 Knowing what triggers a litigation hold 120 Knowing when to issue a litigation hold 120 Knowing when a hold delay makes you eligible for sanctions 122 Accounting for downsizing and departing employees 122 Throwing a Wrench into Digital Recycling 123 Suspending destructive processes 123 Where do you put a terabyte? 124 Implementing the Litigation Hold 125 Documenting that custodians are in compliance 127 Rounding up what needs to be collected 127 Judging whether a forensics-level preservation is needed 130 Chapter 8: Managing e-Discovery Conferences and Protocols 133 Complying with the Meet-and-Confer Session 133 Preparing for the Meet-and-Confer Session 136 Preservation of evidence 136 Form of production 137 Privileged or protected ESI 138 Any other issues regarding ESI 139 Agreeing on a Timetable 139 Selecting a Rule 30(b)(6) Witness 140 Finding Out You and the Opposing Party May Have Mutual Interests 141 Part IV: Processing, Protecting, and Producing ESI 143 Chapter 9: Processing, Filtering, and Reviewing ESI 145 Planning, Tagging, and Bagging 146 Taking a finely tuned approach 147 Finding exactly what you need 147 Stop and identify yourself 149 Two wrongs and a right 150 Learning through Trial and Error 151 Doing Early Case Assessment 152 Vetting vendors 153 Breaking Out the ESI 154 Crafting the Hunt 156 Deciding on filters 156 Keyword or phrase searching 157 Deduping 157 Concept searching 158 Heeding the Grimm roadmap 158 Sampling to Validate 159 Testing the validity of the search 159 Documenting sampling efforts 160 Doing the Review 161 Choosing a review platform 161 How to perform a review 163 Chapter 10: Protecting Privilege, Privacy, and Work Product 165 Facing the Rising Tide of Electronic Information 166 Respecting the Rules of the e-Discovery Game 166 Targeting relevant information 167 Seeing where relevance and privilege intersect 168 Managing e-discovery of confidential information 170 Listening to the Masters 172 Getting or Avoiding a Waiver 172 Asserting a claim 173 Preparing a privilege log 173 Responding to ESI disclosure 175 Applying FRE 502 to disclosure 175 Leveling the Playing Field through Agreement 177 Checking out the types of agreements 177 Shoring up your agreements by court order 178 Chapter 11: Producing and Releasing Responsive ESI 181 Producing Data Sets 182 Packing bytes 183 Staging production 184 Being alert to native production motions 185 Redacting prior to disclosure 187 Providing Detailed Documentation 190 Showing an Unbroken Chain of Custody 192 Keeping Metadata Intact 193 Part V: Getting Litigation Ready 199 Chapter 12: Dealing with Evidentiary Issues and Challenges 201 Looking at the Roles of the Judge and Jury 202 Qualifying an Expert 202 Getting Through the Five Hurdles of Admissibility 204 Admitting Relevant ESI 204 Authenticating ESI 205 Self-authenticating ESI 206 Following the chain of custody 206 Authenticating specific types of ESI 207 Analyzing the Hearsay Rule 208 Providing the Best Evidence 210 Probing the Value of the ESI 210 Chapter 13: Bringing In Special Forces: Computer Forensics 211 Powering Up Computer Forensics 212 Knowing when to hire an expert 212 Knowing what to expect from an expert 214 Judging an expert like judges do 214 Doing a Scientific Forensic Search 215 Testing, Sampling, and Refining Searches for ESI 216 Applying C-Forensics to e-Discovery 218 Following procedure 219 Preparing for an investigation 220 Acquiring and preserving the image 222 Authenticating with hash 223 Recovering deleted ESI 224 Analyzing to broaden or limit 225 Expressing in Boolean 226 Producing and documenting in detail 228 Reinforcing E-Discovery 229 Fighting against forensic fishing attempts 229 Fighting with forensics on your team 230 Defending In-Depth 231 Part VI: Strategizing for e-Discovery Success 233 Chapter 14: Managing and Archiving Business Records 235 Ratcheting Up IT's Role in Prelitigation 236 Laying the cornerstone of ERM 236 Pitching your tent before the storm 237 Telling Documents and Business Records Apart 238 Designing a Defensible ERM Program 240 Designing by committee 240 Starting with the basics 240 Getting management on board with your ERM program 242 Crafting a risk-reducing policy 244 Punching up your e-mail policy 245 Building an ERM Program 246 Kicking the keep-it-all habit 248 Doing what you say you are 248 Getting an A+ in Compliance 249 Chapter 15: Viewing e-Discovery Law from the Bench 251 Examining Unsettled and Unsettling Issues 252 Applying a reasonableness standard 252 Forcing cooperation 253 Looking at what's reasonably accessible 254 Determining who committed misconduct 254 Exploring the Role of the Judge 258 Actively participating 258 Scheduling conferences 259 Appointing experts 259 Determining the scope of costs 262 Chapter 16: e-Discovery for Large-Scale and Complex Litigation 263 Preparing for Complex Litigation 263 Ensuring quality control 265 Getting a project management process in place 266 Proving the merits of a case by using ESI 266 Educating the Court about Your ESI 267 Using summary judgment and other tools 268 Employing an identification system 268 Form of production 269 Creating document depositories 269 Avoiding Judicial Resolution 270 Determining the Scope of Accessibility 271 Doing a good-cause inquiry 272 Cost-shifting 273 Getting Help 274 Partnering with vendors or service providers 274 Selecting experts or consulting companies 274 Chapter 17: e-Discovery for Small Cases 277 Defining Small Cases that Can Benefit from e-Discovery 278 Theft of proprietary data and breaches of contract 278 Marital matters 278 Defamation and Internet defamation 279 Characterizing Small Matters 280 Keeping ESI out of evidence 280 Shared characteristics with large cases 281 Unique characteristics and dynamics 282 Proceeding in Small Cases 283 Curbing e-Discovery with Proportionality 286 Sleuthing Personal Correspondence and Files 286 Part VII: The Part of Tens 289 Chapter 18: Ten Most Important e-Discovery Rules 291 FRCP 26(b)(2)(B) Specific Limitations on ESI 291 FRCP 26(b)(5)(B) Protecting Trial-Preparation Materials and Clawback 292 FRCP 26(a)(1)(C) Time for Pretrial Disclosures; Objections 293 FRCP 26(f) Conference of the Parties; Planning for Discovery 294 FRCP 26(g) Signing Disclosures and Discovery Requests, Responses, and Objections 294 FRCP 30(b)(6) Designation of a Witness 295 FRCP 34(b) Form of Production 296 FRCP 37(e) Safe Harbor from Sanctions for Loss of ESI 297 Federal Rules of Evidence 502(b) Inadvertent Disclosure 298 Federal Rule of Evidence 901 Requirement of Authentication or Identification 298 Chapter 19: Ten Ways to Keep an Edge on Your e-Discovery Expertise 301 The Sedona Conference and Working Group Series 302 Discovery Resources 303 Law Technology News 303 Electronic Discovery Law 304 E-Discovery Team Blog 304 LexisNexis Applied Discovery Online Law Library 305 American Bar Association Journal 305 Legal Technology's Electronic Data Discovery 306 Supreme Court of the United States 306 Cornell Law School Legal Information Institute and Wex 307 Chapter 20: Ten e-Discovery Cases with Really Good Lessons 309 Zubulake v. UBS Warburg, 2003–2005; Employment Discrimination 309 Qualcomm v. Broadcom, 2008; Patent Dispute 310 Victor Stanley, Inc. v. Creative Pipe, Inc., 2008; Copyright Infringement 311 Doe v. Norwalk Community College, 2007; the Safe Harbor of FRCP Rule 37(e) 312 United States v. O'keefe, 2008; Criminal Case Involving e-discovery 313 Lorraine v. Markel American Insurance Co., 2007; Insurance Dispute 314 Mancia v. Mayflower Textile Services Co., et al., 2008; the Duty of Cooperate and FRCP Rule 26(g) 315 Mikron Industries Inc. v. Hurd Windows & Doors Inc., 2008; Duty to Confer 316 Gross Construction Associates, Inc., v. American Mfrs. Mutual Ins Co., 2009; Keyword Searches 317 Gutman v. Klein, 2008; Termination Sanction and Spoliation 318 Glossary 321 Index 333

Long Description

Making Everything Easier! E-Discovery For Dummiesz Learn to: Follow the correct steps in the e-discovery process Anticipate potential risks Develop an e-discovery strategy for your company Identify best practices in the event of litigation Linda Volonino Ian Redpath e-discovery consultants Be prepared for legal action! Learn about e-discovery rules, protections, and vulnerabilities Here are the issues, challenges, strengths, and limitations of e-discovery in an easy-to-understand guide. Find out how to identify, protect, and produce electronically stored information, prepare for litigation, avoid tainting evidence, and much more. Its a much better (and cheaper) way to learn about this hot legal issue than through experience! What happened explore the legal changes that made e-discovery an issue and what they mean to you Your ESI IQ get a comprehensive look at your electronically stored information (ESI) and how to manage it effectively Set up a team assemble a team of employees from your IT and Legal departments and establish how to work together on important e-discovery projects Make a plan identify potentially relevant ESI and how to comply with litigation holds Put the plan into action preserve ESI, redact privileged info, and produce ESI in its native format, including metadata If youre challenged find out how to evaluate admissibility and document your evidence Be prepared build an electronic records management program and policy and monitor compliance Call for backup know when to bring in outside vendors and computer forensics specialists Open the book and find: Why you cant ignore e-discovery How to prepare for litigation Ten essential e-discovery rules How to create a data map What data to keep How to set up a document repository Suggestions for controlling your e-discovery costs How to review, process, and filter information

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