E-Discovery: Right…from the Start LSC TIG Conference 2010: E-Discovery in Small Cases: Craig Ball About this Collection .................................................................................................... 2 Right from the Start: 8 Ways to Hit the Ground Running........................................... 3 E-Discovery for Everybody: The EDna Challenge ...................................................... 6 Surefire Steps to Splendid Search ............................................................................. 16 Geek Speak: Lawyer’s Guide to the Language of Data Storage and Networking .. 25 Meeting the Challenge of E-Mail in Civil Discovery .................................................. 45 Technology Primer: Backups in E-Discovery .......................................................... 83 Ball in Your Court: Selected Columns on Low Cost E-Discovery ........................ 101 About the Author ...................................................................................................... 128 About this Collection America's halcyon days of hammer and harness are behind us. We are all knowledge workers now. Even those who drive trucks or empty bedpans are tasked by pixels and tracked by bytes. The evidence of what we do and say, of when and where and how we go, of what we own and earn and spend, is digital. More than 99% of it will never exist as anything but electronically stored information, and most takes forms that require special tools or expertise to see and interpret. A lawyer without the skills needed to properly search electronic evidence is all-but-incompetent to manage litigation today. The evidence is digital. It's there. It's waiting for you--eager to tell its compelling story, ready to show your client was right and the other side should pay big or go hence without day. The lawyer who can get to the digital evidence—find it, understand it and use it--enjoys an enormous advantage. It's an advantage within the reach and budget of lawyers and litigants in almost any case. Like the courts themselves, access to evidence can't be just for the privileged. The selected articles and columns that follow were chosen because they illustrate lower cost, brainy-not-brawny approaches to electronic discovery. They are a small sample of the articles I've written about electronic discovery and computer forensics, many available at www.craigball.com. I hope you find them, along with my blog posts, webcasts and other resources, to be a valuable, accessible introduction to the technology and best practices of electronic discovery. Thanks! Craig Ball, January 2009 2 Right from the Start Smart First Steps in Electronic Discovery Craig Ball © 2009 Certainly it’s smart to prepare for e-discovery—to be “proactive” about electronically stored information (ESI) and implement early case assessment systems and strategies. But sometimes, the lawsuit’s the first sign of trouble, and you have to choose which fires to fight…and fast. Don’t be paralyzed by fear of failure or confusion about where to begin. There are no perfect e- discovery efforts. Before the ESI experts come aboard, there are things you can and must do. Here’s a quick compendium of eight ways to hit the ground running: 1. Apply the five Ws of good journalism—who, what, when, where and why—to get a handle on your core preservation duties. Immediately make a list of the people, events, time intervals, business units, records and communications central to the case. a. List the apparent key players (don’t forget assistants who, e.g., handle the boss’ email and significant third parties over whom your client has a right of direction or control). b. Hone in on what happened—both from your perspective and theirs—and posit what ESI sheds light either way or tends to explain or challenge the key players’ actions and attitudes. c. Decide what dates and time periods are relevant for preservation. Is there a continuing preservation obligation going forward? d. Determine which business units, facilities, systems and devices most likely hold relevant ESI. Your lists will change over time, but a focused, thoughtful and well-documented effort, diligently implemented, is more defensible, less costly and invariably more effective than a scattershot approach. Don’t delay. It needn’t be flawless right now; reasonable will do. 2. Focus on the fragile first. What potentially relevant ESI has the shortest shelf life and requires quickest action to preserve while it’s still reasonably accessible? Voice mail, web mail and text messaging, computers requiring forensic examination, web content and surveillance video are examples of ESI that tend to be rapidly discarded or overwritten. Grabbing e-mail of key custodians before it migrates to backup media can save a bundle and accelerate search and processing. 3 3. Protect employees from themselves. People who wouldn’t dream of shredding a paper record will purge ESI with nary a thought. In the blink of an eye, history will be reinvented as employees delete overly candid e-mail and commingled personal and business communications. The results are often catastrophic and always costly. Assess whether those entrusted with preservation can be trusted to perform, and don’t rely on custodial preservation alone when its failure is reasonably foreseeable. 4. Holds should be instructional, not merely aspirational. Too many lawyers draft legal hold instructions designed to protect lawyers. Broadly disseminating a form hold directive saying “keep everything” isn’t helpful and will come back to haunt you at deposition. “I got that memo,” they say, “but I didn’t do anything.” Custodians need to know where to start. Tell them what to do and how to do it. Give examples that inform and deadlines that demand action. Get management buy in for the time needed to comply. Better a handful of key players take the hold directive seriously than dozens or hundreds of minor players wink at it. 5. Boots on the ground. Good doctors don’t diagnose over the phone. Likewise, good lawyers meet key players and get a firsthand sense of how they operate. Seek out the people who manage the systems that hold the evidence, and learn the “who, what, when, where and why” of your client’s ESI face-to-face. It’s not just enormously helpful—it’s what courts demand. 6. Build the data map, including local collections and databases. Federal practice requires identification of potentially relevant ESI, but it’s a best practice everywhere. That goes for the less-accessible stuff, too. Courts won’t accept, “We don’t know what we have or where it is,” so be ready to identify potentially relevant ESI that you will and won’t explore or produce. Data stored off the servers or on databases pose special challenges made harder by turning a blind eye to its existence. Don’t fall prey to, “If we don’t tell them we have it, they won’t ask for it.” 7. Consider how you’ll collect, store, search, review and produce ESI. All ESI is just a bunch of ones and zeros. Making sense of it, controlling costs and minimizing frustrating “do-overs,” rides on how you choose to process and produce information. So add an “H”—How—to those five Ws, and ponder your options for how the data gets from here to there. 8. Engage the other side. Even warring nations cease fire to carry off fallen comrades. You don’t have to like or trust the opposition, but you have to be straight with them if you want to stay out of trouble in e-discovery. Tell the other side what you’re doing and 4 what you’re unwilling to do. Collaborate anywhere you can. Lawyers over-discover cases more from ignorance and mistrust than guile or greed; but, even when you face someone gaming the system, your documented candor and good faith effort to cooperate will serve you well in court. 5 6 E-Discovery for Everybody: The EDna Challenge Craig Ball E-discovery is just for big budget cases involving big companies, handled by big firms. Right, and suffrage is just for white, male landowners. Some Neanderthal notions take longer than others to get shown the door, and it's time to dispel the mistaken belief that e-discovery is just for the country club set. Today, evidence means electronic evidence; so, like the courts themselves, access to evidence can't be just for the privileged. Everyone gets to play. If you think big firms succeed at e-discovery because they know more than you do, think again. Marketing hype aside, big firm litigators don't know much more about e-discovery than solo practitioners. Corporate clients hire pricey vendors with loads of computing power to index, search, de-duplicate, convert and manage terabytes of data. Big law firms deploy sophisticated in-house or hosted review platforms that let armies of associates and contract lawyers plow through vast plains of data--viewing, tagging, searching, sorting and redacting with a few keystrokes. The big boys simply have better toys. A hurdle for everyone else is the unavailability and high cost of specialized software to process and review electronic evidence. A Mercedes and a Mazda both get you where you need to go, but the e-discovery industry has no Mazdas on the lot. This article explores affordable, off-the-shelf ways to get where you need to go in e-discovery. One Size Doesn't Fit All First, let's set sensible expectations: Vast, varied productions of ESI cannot be efficiently or affordably managed and reviewed with software from Best Buy. If you're grappling with millions of files and messages, you'll need to turn to some pretty pricy power tools. The key consideration is workflow. Tools designed for ESI review can save considerable time over cobbled-together methods employing off-the-shelf applications; and, when every action is extrapolated across millions of messages and documents, seconds saved add up to big productivity gains.