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Avoid the Dangers of Missing E-Data

Most discovery requests will require production of electronic data. Even if you’re tech savvy, it’s better not to go it alone because the sanctions for missing something can be huge, as Delta Airlines and defense counsel in a trademark case have found out the hard way. Plus you have an ethical duty to competently handle e-discovery—including bringing technical consultants on board when needed.

Using a cross-disciplinary team that understands the legal issues, the type of data the client generates, and where that data may be found within the client’s technology infrastructure can help you avoid e-discovery pitfalls.

Here are five ways in which an e-data team can help you:

  1. E-discovery stipulation. The team serves as a resource to assist you in considering how and when to communicate with the opposing party to reach agreement about the scope of the e-data-gathering effort, including whether the case requires the preservation and possible production of metadata.
  2. Scope of data collection. The team considers the scope of data collection, e.g., whether it should be collected from across the entire organization or only from certain departments or individuals, whether collection involves only data presently online and immediately accessible (“live” data) or whether archived forms (such as backup tapes) are involved. The team has to evaluate and list which backups, servers, desktops, and remote devices are involved.
  3. Manner of collection. The team decides how the electronic data will be gathered, e.g., whether it can be gathered across the network from a central location or whether it must be copied at local workstations. The team should also consider whether the individual custodians of particular data can be asked, and trusted, to preserve and archive relevant electronic data without affecting or changing the files and the metadata associated with them. If not, the team must decide whether the client’s IT staff is capable of doing the gathering or whether a data management vendor will be required to gather material at the client sites.
  4. Handling e-data. The team considers and decides how to make a record of the data collection process. The team should evaluate the likelihood of chain-of-custody issues, and those responsible for gathering must be prepared to keep logs to substantiate their efforts and to keep the collection data secure throughout the process. It must be decided whether the appropriate records can be kept by the client’s own IT staff or whether a vendor is necessary.
  5. Outside expert. The team considers whether to use an outside computer forensics expert to preserve, analyze, and extract data using specialized software. Having an outside expert who handles the collection and production of data and who can testify about the methods used can be very useful for showing a good faith effort to comply with the client’s discovery obligations. Involving an outside expert also frees up client resources from what can be an extremely demanding and time-consuming task that often requires specialized knowledge or tools.

Get up to speed on identifying and collecting e-data in CEB’s California Civil Discovery Practice, chap 4.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

5 Responses

  1. Julie,

    Do you have thoughts on CA Assembly Bill No. 691 (AB 691) The Privacy Expectation Afterlife and Choices Act? The act would add Part 20 (commencing with Section 870) to Division 2 of the Probate Code, relating to estates.

    The Legislative Counsel’s Digest (p.93) reads …
    This bill would establish the Privacy Expectation Afterlife and Choices Act, which would authorize a defined electronic communication service or remote computing service (provider) to disclose specified information pertaining to the account of a deceased user to the personal representative of the decedent’s estate or the trustee of the decedent’s trust if provided with prescribed information. The bill would authorize a probate court with jurisdiction over the deceased user’s estate or trust to order disclosure of certain information if the court makes specified findings, including that the request for disclosure is narrowly tailored to the purpose of administering the estate or trust. The bill would prescribe circumstances under which the provider would not be compelled to disclose a record or the contents of a communication and would exempt a provider from liability for disclosing records or contents as required or permitted by the act.

  2. […] Avoid the Dangers of Missing E-Data […]

  3. […] Avoid the Dangers of Missing E-Data […]

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