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The eDiscovery Paradigm Shift

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Tuesday, April 8, 2008

Federal Judge Warns of E-Discovery Pitfalls

During my daily review of the latest news and Blog posting by my favorite Bloggers, I came accross this very interesting article on titled, "Federal Judge Warns of E-Discovery Pitfalls" written by Larry Seltzer.

What's interesting about this article is discusses the opinoins of Magistrate Judge John M. Facciola of the United States District Court, D.C. Circuit who does not usually preside over a case, but decides procedural matters in them, such as pretrial motions. As such and what should be of interest to anyone in the eDiscovery market is the fact that these decisions and therefore his opinions are often key in setting precedent for how evidence is collected and how will discovery proceed.

I plan to follow the opinions of this Judge over the next few years and will report my finding as often as appropriate.

Following is Mr. Seltzer's article:

As the legal system finds its footing in a world of digital evidence, businesses need to establish serious records management policies.

The issue of how to manage legal evidence discovery in the age of electronic data will be prominently aired during the RSA Conference April 7-12 in San Francisco. Magistrate Judge John M. Facciola of the United States District Court, D.C. Circuit, will be speaking on emerging issues in electronic discovery and digital evidence and their increasing impact on civil and criminal lawsuits.

In a first for RSA, he will also preside over a sample "trial" involving a dispute over computer data offered as evidence. Facciola spoke to eWEEK on these matters and how businesses should be preparing for potential legal proceedings in a digital age; excerpts will be available soon.
That a federal magistrate would be invited to speak at a major security conference highlights the fact that the legal system is only now adjusting, on the fly, to a world where evidence comes primarily as electronic data. While those working in the technology industry are accustomed to rapid change, legal systems that have evolved over hundreds of years based on a view of data as being printed on paper haven't adjusted as readily.

A magistrate judge such as Facciola does not usually preside over a case, but decides procedural matters in them, such as pretrial motions. These decisions are often key in setting precedent for how evidence is collected and how will discovery proceed. Magistrate judges, unlike "Article III" judges, are not nominated by the president and serve for a fixed term. They are appointed by the Judges of the Court. Facciola has been serving in the D.C. Circuit for eight years and is in his second term.

Many attorneys are concerned about the potential for e-discovery to swamp the system. In such an atmosphere of uncertainty, how can businesses conduct themselves to avoid making matters worse?

Consider the fate of American Express, which lost one count of a recent case because the court refused to admit its electronic corporate records, because, Facciola said, "there had not been a sufficient showing as to how the information came into existence, and … the information provided as to how it came into existence was, in the court's view, insufficient."
How could such a thing happen? Facciola said the problem is a lack of proper records management. It's easy to see how businesses can be preoccupied with, for instance, making widgets, but the failure to keep electronic records that can be authenticated is no longer a reasonable option. The really bad news is that software that properly assists such record keeping is a relatively new phenomenon.

Another issue is how long businesses must preserve data. It's still reasonable, under the law, for a business to dispose of data. Facciola said a concern was raised early that businesses not be subject to sanction for disposing of data in good faith. "The rule ... says that sanctions may not be imposed under these rules for the good-faith destruction of information when it was pursuant to ordinary business process," he said.

However, "once a litigation hold is imposed by a court order or by agreement, those systems have to be shut off," Facciola said. Normally, the attorneys will agree on what evidence needs to be "preserved," who will have to produce copies of it and in what form, he said. A business could have a process, for example, which disposes of deleted e-mail more than two weeks old. Once its attorneys instruct it to shut that process off, it must do so. Nothing will get someone into deep trouble with a judge faster than acting in bad faith, Facciola said.

This is why some argue that eventually everyone will just archive everything. It's just too hard to make a reliable policy and to get all employees and partners to conform to it; it's easier to save everything, and storage is cheap anyway. The sad implications for privacy are to be left for another day.

In what form will people be required to produce evidence? New rules in the Federal Rules of Civil Procedure call for native format, which, according to Facciola, "means the format in which the electronically stored information was originally created, with the accompanying metadata." Metadata has been a sore point in some litigation. "A PDF or TIFF image of a document may not be as appropriate as the original Word document, including the Author information that it stores," Facciola said.

And while these issues have primarily to do with civil cases, since that's where the (now virtual) reams of paper are, they are no less relevant to criminal cases, he said. This last month was full of criminal cases for Facciola, and it was his "tipping point," he said. "I didn't issue a single order for a tangible piece of evidence. It was all e-mails, Internet portal addresses, cell phones ... The sophistication of law enforcement in these grounds has grown by leaps and bounds within the last couple of years."

And the cost associated with e-discovery in some criminal cases could be serious, he noted. So many defendants have representation paid for by the government that a significant e-discovery for one of them could blow the budget.

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