10 Critical Decisions for Successful E-discovery Part 1
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10 Critical Decisions for Successful E-Discovery: Part 1
Overview
With the increasing reliance on electronic data and the 2006 amendments to the Federal Rules of Civil Procedure (FRCP), understanding how to handle electronic discovery is more important than ever for legal and information professionals.
Key FRCP Amendments
The recent FRCP changes highlight the importance of managing electronically stored information (ESI) and include:
- Routine Alterations: Safe harbor provisions for typical changes like backups [Amended Rule 37(f)].
- Inaccessible Data: Guidelines for handling data that isn't readily accessible [Amended Rule 26(b)(2)(B)].
- Privileged Material: Instructions for dealing with accidentally produced privileged content [Amended Rule 26(b)(5)].
- ESI Preservation: Responsibilities during pre-trial conferences [Amended Rule 26(f)].
- Production Requests: Rules governing electronic file production [Amended Rules 33(d), 34, 26(f)(3), 34(b)(iii)].
Managing ESI involves understanding various options, costs, and technologies. A common confusion lies in differentiating computer forensics from electronic discovery.
Making the Right Choices
Effective e-discovery requires making several critical decisions regarding the collection and processing of ESI.
Collection Decisions
1. Inclusion of Email Files
- Key Question: Are email files part of the project?
- Consideration: Ascertain if key individuals use personal Internet email accounts, as major providers typically retain logs for no more than 30 days. Prompt action, often requiring a subpoena, is necessary to preserve these records.
2. Potential for Illegal Activity
- Key Question: Is there a possibility of uncovering illegal activity?
- Consideration: If wrongdoing is discovered, especially by technical staff, avoid immediate termination. Instead, restrict access and encourage cooperation. In cases involving sensitive records, involve law enforcement early to prevent evidence destruction.
3. Importance of Deleted or Hidden Files
- Key Question: Will deleted or hidden files be crucial?
- Consideration: Choose between forensic, semi-forensic, or non-forensic collection methods based on the need for context. For cases where context matters, such as locating deleted files, a forensic approach is essential.
4. Role of Backup Tapes
- Key Question: Are backup tapes part of active collections?
- Consideration: Address backup handling immediately if historical issues are relevant. When backup tapes are needed for litigation, stop any rotation schedules and convey this requirement to the technology team managing business continuity.
Understanding and navigating these decisions are crucial for successful e-discovery, ensuring the integrity and accessibility of electronic data in legal proceedings.
You can find the original non-AI version of this article here: 10 Critical Decisions for Successful E-discovery Part 1.
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