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Infogov > ACEDS > Flashcards

ACEDS Flashcards

1
Q

Discovery

A

The pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party. By extension, e-discovery is discovery of electronically stored information.

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2
Q

E-Discovery Specialist

A

The d-discovery specialist is responsible for presenting data to his clients in the most complete understandable, and readable format possible.

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3
Q

ESI

A

Electronically Stored Information (ESI) is information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of compter hardware and software. This includes any data stored on individual computers, servers, memory cards, smartphones, tablets, computer networks, the Internet, and any other electronic product.

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4
Q

FRCP

A

At the federal level, the Federal Rules of Civil Procedure (FRCP) govern the procedure for civil lawsuits in teh US district courts. At the state level, each state has their own set of statutes and rules that govern the procedure for civil lawsuits in state court.

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5
Q

Legal Hold

A

A legal Hold is a proces used by a person or entity to preserve all forms of potentially relevant information when litigaiton is reasonably anticipated. While the concept is mentioned in this chapter, it will be covered in detail in a later chapter.

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6
Q

Non-Party

A

A non-party is a person or entity that is not named as a party to a lawsuit.

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7
Q

Potentially Relevant Information

A

Information that is relevant to a claim or defense of the lawsuit is deemed “potentially relevant information”.

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8
Q

Producing Party

A

A producing party is a party that owns the complete collection of ESI and is responsible for producing the portion of ESI which is deemed to be relevant for a case or other legal inquiry. The producing party can be a plaintiff, defendant, or third party.

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9
Q

Initial Disclosures

A

FRCP 26(a)(1)(A) Unless exempted: i. name, addrs, ph # of each indiv “likely to have discoverable information” with subjects of that information that disclosing party may use to support its claims or defenses (unless solely for impeachment) ii. A copy or description by category and location of all documents, ESI, and tangible things in its “possession, custody or control” and may use to support its claims or defences (unless for impeachment) iii. a computation of each category of damages claimed by disclosing party, who must make avialbed under FRCP 34 the docs or evid (unless privileged or protected) on which each computation is based. iv. insurance agreements for inspection and coopying under FRCP 34

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10
Q

Meet and confer

A

R. 26(f) (unless exempt under 26(a)(1)(B) or court order otherwise) Must confer as soon as possible or at least 21 days before scheduling hearing

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11
Q

Meet and confer considerations

A
  • The nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case
  • Make or arrange for the disclosures required by FRCP Rule 26(a)(1)
  • Discuss any issues about preserving discoverable information *Develop a proposed discovery plan
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12
Q

creation ofDiscovery Plan

A

all parties jointly responsible, must attend in good faith and 14 days after conference a written report to the court outlining the plan

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13
Q

Discovery plan details

A

* What changes should be made in timing, form, or rq for disclsure under R. 26(a) (also when initial disclosures were or will be made) *the subjects on which discovery may be needed, when to be completed, whther in phases or limited to certain issues *any issues about disclosure or discovery of ESI (forms in which should be produced) *Any issues about privilege or protection for trial prep materials (agreed procedure to assert these claims) *What changes should be made in teh limitation on discovery imposed under these rules or local rule, what other limitaitons whoulc ebe imposed *any order that the court should issue under 26(c) or 16(b) and (c)

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14
Q

FRCP 34(a)(1)

A

A party may serve on any other party a request w/i the scope of Rule 26(b) to produce and permit the requesting party… to inspect copy, test, or sample ..items in the responding party’s possession, custody or control

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15
Q

Types of Non-Party Involvment

A
  1. When the ESI belongs to or directly involves the producing party but it held by a non-party, it is referred to as non-party hosted information 2. When the ESI belongs and relates solely to the non-party but is nevertheless potentially relevant to the matter, it is referred to as non-party information
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16
Q

Non-party legal hold issues

A
  1. A written agreement between the party and the non-party should includ terms addressing the rights and obligations in the event of litigation and discovery. 2. When a legal hold takes effect or a party receives a request for production, te non-arty must be notified of the below: *The producing party’s legal duty to preserve ESI *That the duty to preserve extends to ESI held by the non-party in control of the producing party *The steps the non-party should take to preserve the potentially relevant ESI in its possession.
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17
Q

Requesting data from Non-party Respondents

A

FRCP 45 subpoena serves as court order to nonparty 1. Application: under Rule 45, nonparties can be served with a subpoena which has the authority of a court order 2. Legal Hold Obligation: 45 Subpoenas obligate the recipient to assess the status of the ESI coered by the subpoena and to consider instituteing a legal hold 3. Objections: Sufficiency of the subpoena, means of service, scope of the requested production

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18
Q

Non-Party ESI delivery

A

Generally accepted practice for a nonparty to turn over its ESI in a relatively “raw” state to the producing party. The producing party may need to process, review, and produce the ESI at its own expense in a form that is reasonable for the requesting party.

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19
Q

FRCP 30(b)(6)

A

subpoena on a corporation, must deescribe with reasonable particularity the matters for examination Named entity must designate one or more officers, directors, or managing agents or designate other person who consent to testify and may set out the matters on which each person will testify

20
Q

FRCP 26(b)(2)(B)

A

“the court may specify certain conditions for the discovery” of ESI from not reasonably accessible sources

21
Q

Proportionality rule

A

require cost-shifting or cost sharing in lieu of “limiting the frequency or extent of discovery Some judges limit cost sharing or shifting to production of ESI from not reasonably accessible sources

22
Q

Burden for cost shifting

A

falls on ther one seeking shifting and must over come the presumption that each party bears its own costs

23
Q

To each its own

A

Each party pays for its own production. However, a court may limit the scope of discovery or order a requesting party to pay the costs of producing the requested ESI

24
Q

Cost Limited

A

the court may liit discovery or shift the cost of production when the request to produce is too broad or the ESI can be more easily obtained from another source.

25
Q

Cost v. Benefits

A

The court may also limit discovery or shift cost when burden or expense of the proposed discovery outweighs the potential benefit. This is also known as the proportionality rule.

26
Q

FRCP 11

A

Rule that requires attorneys to “certify” discovery request and responses by signing them. and *that it is not being presented for improper purpose (harrass, delay, increase costs) *Claims/defenses, or other warranted by existing law or by non-frivolous argument for extending, modifying or reversing existing law or establishing new law *Factual contentions have evidentiary support or (if specifically identified) will likely have evidentiary support after a reasonable opportunity for further investigation or discovery *Denials of factual contentions are warranted on the evidence or if specifically so identified are reasonably based on belief or lack of info.

27
Q

FRCP 11(b) violation sanction

A

* Court may impose an appropriate sanction on any attorney, law firm, or party the vioalted the rule or is responsible for the violation * A law firm must be held jointly responsible for a violation committed by its partner, associate, or employee

28
Q

EDRM

A

The Electronic Discovery Reference Model:

29
Q

FRCP (2006 Amendements)

A
  • Redefine discoveralbe material
  • Encourage early attention to issues relating to ediscovery
  • Discuss the conecep tof “reasonably accessible”
  • Provide a procedure fro assercing claims of privilege and work prodcut after production
  • Provide a mechanism for “safe harbor” limits on sanctions related to the loss of ESI as a result of routine operation or computer systems.
30
Q

Cost drivers

A

the various elements of an ediscovery project that hove associated cost and must be factored into the budget. high cost drivers are collection, review, and vendor costs. Should be assessed on a case by case basis and their impact on the case clearly documented.

31
Q

Client Risk

A

a major determiningfactorin whatthe budget for an e-discovery project will be. the greater the risk the lower the costs.

32
Q

Communication considerations

A

open communication required

should have agreement on the initial number of custodians

agreements should be left open for renegotiations after the initialproduction

33
Q

Key cost drivers

A
  • Number of custodians
  • Type and location of data
  • Volume of date handled and reviewed
  • Scope of discovery
  • time allocated for discovery
    *
34
Q

Number of Custodians

A
  • essential to limit total Member of custodian BUT it is better toover collect than to under collect and realize halfwaythrough your mistake. if notincluding a custodian document why.
  • Parties should reach an agreement on the initial number of custodians. this can be agreed to at themeet and confer.
  • Keeping clear documentation about each custodian is keywhen developing a budget. Not just how many but specific information (devices they use, types of data the create)
  • Developing questionnairesor travelling on-site to interview each custodian to document this is ideal and suggested. Custodial interviews may raise initial costs but might also save money tithe long run
35
Q

Volume per custodian

A
  • the amount of raw data collected directly from the source (not processed data)
  • An initial analysis of data from custodians may provide for identification of additional custodiansI Collection of additional data, specify second round analysis, or avert the need for additional discoveryaltogether.
  • the human review (the mod time consuming and expensive) is primarilyaffected by volume.
36
Q

Estimating Costs Based on Volume

A
  • Measure volume in (mb) or (gb)
  • Vendors asses volume differntly
  • Vendors vary how they charge volume of data
  • Native ESI
    • no pagination
    • references to pages are reuslt of conversion rate assumptions
  • Types
    • conversion rates vary on type
      • email = 2mb=2 pages
      • pdf=2md =20 pages
  • Take Caution
    • If vendors bid on project on page ount
    • understand whether the ultimate price will depend on teh actual number of pages reviewed
    • If price is dependent on number of pages test the conversion rate used to make the projection is reasonable
37
Q

Estimating costs based on scope

A

always start with the smallest possible scope.

Should be efficiently (make sure material is only reviewed one time

38
Q

Impacts of Time on ediscovery budget

A
  • Extra testing of search terms
  • Refining the scope
  • find-tuning data coding
  • planning more carefully
  • testing different approaches
  • greater cost control
  • imporved consistency
  • fewer number of reviewers

Longer time cheaper, less time more expensive

39
Q

Vendor costs

A

Some have combination of services, some only one

get proposals from many

make sure all costs noting in bidding process is included in proposal

Long term or hostin fees should be considered

Should create a comparative cost spreadsheet

40
Q

Computer Forensics

A
  • The science of interpresting digital data, both active and deleted to help determine how data was created, altered, and deleted
  • employed to preserve digital data, analyze digital data to provide context of specific info, and recover deleted data (email or documents) in order to identify the smoking gun to the litigation or provide evidence of spoliation
  • Also covers cell phones, tablets, GPS, black-box technology, and practically any other digital device you can imagine
    *
41
Q

Computer forensic vendors

A
  • typically charge imaging fees based on amount of data preserved and analyzed as well as investigative hourly rates
    • imaging fees are associated with copying the digital dat in forensically sound format so the investigator can analyze without altering
    • forensically sound means that the data is unalterable and is in the same state as it was when the data was copied
    • they work from forensically sound copies in order to preserve the authenticity of the data analyzed
    • if all parties hire their own computer forensic investigor to analyze the same data it is important they all work with the same dataset
  • Some computer forensic companies charge monthly storage fees (dependent on the size of the forensic image)
  • investigators have all types of roensic software designed to assist with a multitude of tasks. For example some are desgined to export data, recover deleted files, create reports suitable for court, and perform key-word searches of data for relevant files
42
Q

Data Mapping

A

The process of creating a document which lists all of the IT systems used by all employees, and all onsite, all offsite, paper document storage locations, including backup media.

43
Q

Project Planning

A

A part of project management, which relates to the use of schedules such as Gantt charts to plan and report progress within the project environment.

44
Q

Third-party Vendor

A

A party that provides services including e-discovery software or services to improve or augment the e-discovery process

45
Q

Project planning considerations

A
  • Personnel costs
    • a major factor of budget particuarly in review
    • will have major impact on success
  • Third-party vendor
    • Third-party costs are the bulk of budget and must be budgeted for
    • Obtain quotes from many vendors for competion
  • Elements of Ediscovery folder
    • tech process used
    • culling methodology
    • processing of data
    • review methodology
    • production formats

Infogov (8 decks)

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