SUBJECTS FOR
ELECTRONIC DISCOVERY
RULES

Discovery of Electronic Data
Proposed Electronic Discovery Rules

California Civil Discovery Home Page

May 2000 topical proposals from Richard E. Best to California Electronic Discovery Rules Committee regarding subjects for considerations for rule making for electronic discovery

DOCUMENT PRODUCTION ISSUES

SUBJECTS FOR RULES / GUIDELINES

ELECTRONIC DOCUMENT DEFINITION
REQUIRE SPECIFICITY OF E-DATA IN REQUEST
DEFINE "REASONABLE SEARCH" FOR PRODUCTION:
DEFINE "POSSESSION, CUSTODY & CONTROL"
FORM OF PRODUCTION
COSTS ALLOCATION
PRESERVATION / SPOLIATION / DOCUMENT RETENTION
USE OF SPECIAL MASTERS, REFEREES
EX PARTE PRESERVATION OR "SEIZURE" ORDERS
PRIVILEGES

SUBJECTS FOR FORM REQUESTS FOR DOCUMENT PRODUCTION

INSPECTION PROTOCALS FOR COMPUTER DATA:

ON SITE COMPUTER SEARCH & INSPECTIONS
REQUESTING PARTY SEARCH REQUESTS
RESPONDING PARTY PROVIDE COMPUTER & ACCESS

SUBJECTS FOR FORM INTERROGATORIES

DEPOSITION ISSUES

CONDUCTING DISCOVERY ELECTRONICALLY

DOCUMENT PRODUCTION ISSUES

SUBJECTS FOR RULES / GUIDELINES

ELECTRONIC DOCUMENT DEFINITION

Clarification that electronic data in a broad sense is a discoverable "document"
Including meta data and whatever software or hardware is necessary to read, manipulate and interpret data
See 1985.3(a)(1) re definition of personal records to include "…documents, other writings, or electronic data…."
Same re employment records 1985.6(a)(1)

REQUIRE SPECIFICITY OF E-DATA IN REQUEST

Specific request for electronic data; otherwise no obligation to search or produce
Request to specify format / media for production
See Texas Rule 196.4 http://www.supreme.courts.state.tx.us/rules/tdr/index.htm

DEFINE "REASONABLE SEARCH" FOR PRODUCTION:
e.g. unless expressly requested with reasonable particularity and for good cause, a party need not search for the following as part of a normal response and production

Embedded data or files
Back up and archives
Residual data - deleted docs or portions not overwritten
Copies, clones, temp files
Browser created data: dates, cache, cookies, history of sites visited
Docs or data created without user knowledge
Computer logs, access control lists

DEFINE "POSSESSION, CUSTODY & CONTROL"

All electronic data and documents of any kind, whether or not the existence known, including but not limited to the above
Including code or programs necessary to access, read, use, manipulate data
Fair use ?: automatic protective order re non-disclosure, use etc.

FORM OF PRODUCTION

In form and format

Maintained in normal course of business or
As requested

Variations, including hard copy, presumptively at cost of party requesting
If normally maintained in electronic media, include code or software to access

Automatic protective order re proprietary or licensed software
Alternative for producing party to provide and bear the expense of providing rough equivalent of required software

Automatic protective order re inadvertent production of privileged matter, trade secrets etc.

COSTS ALLOCATION

Balance

If marginal relevance or value requester pays
Directly relevant data produced at expense of producing party

Assuming business justification for manner of record keeping, produce in form normally maintained;
Production in alternative form at expense of requesting party

PRESERVATION / SPOLIATION / DOCUMENT RETENTION

Outline appropriate document retention policies
Outline duty to preserve potential discoverable material

Duty to notify employees
Duty of Investigation
Duty to take affirmative steps to preserve documents and data within control of key participants
Duty to ghost copy everything, change business practices, shut down the business

USE OF SPECIAL MASTERS, REFEREES

No waiver of privilege, confidentiality, privacy etc by disclosure [legislation]

EX PARTE PRESERVATION OR "SEIZURE" ORDERS

Hearing alternatives: ex parte w/o notice or short notice period for hearing
Order alternatives: preservation order or production, inspection and copying
Specific factual showing in application for inspection required:

Likelihood data will be destroyed, modified or concealed
Prior history of violating court order or destroying or not preserving evidence
Search criteria satisfying 4th amendment

Specific findings required for issuance of inspection order
Contents of inspection order

Consider appointment of independent computer expert so party will not have improper access & protect privileges etc.
Ghost copy of hard drives by neutral expert
Copies of diskettes
Minimize disruption of business

PRIVILEGES

Automatic protective order for inadvertent production
Duty of recipient to advise of obvious mistake
No waiver if reasonable investigation / reasonable word search
No duty to examine every document
Preserve objections until trial
Should persons be required to adopt protocol in normal business to electronically ID docs -privileges, privacy, trade secret--- in order to preserve privilege from inadvertent disclosure & waiver or as alternative to examining each document

SUBJECTS FOR FORM REQUESTS FOR DOCUMENT PRODUCTION

Manuals of other documents on

Topology of system
Document retention policies & practices
Email retention & privacy policies and practices

Documents re retention or preservation of information relating to this litigation

INSPECTION PROTOCALS FOR COMPUTER DATA:

Alternative inspection protocols for computer data to be employed individually or in combination pursuant to document requests or depositions

ON SITE COMPUTER SEARCH & INSPECTIONS

Review of records on site during normal operational conditions
Producing party's personnel present

Available to answer questions
Available to operate system in response to directives

Install hardware & software to make copies of data, inspect, analyze, and manipulate data
Assist in making copies: image, backups
Assist in recovery of deleted or altered files

Producing party's expert present to observe
Discovering party's experts present

Observe
Ask questions of producing party's experts and employees
Direct operation of system

Producing party responsible for making backups and taking all necessary precautions to protect data and assure safety and integrity of system and its data;
To protect the integrity of the data and system, the producing party has a duty and power to make timely objections & state reasons therefore, stop inspections etc
Timing: after normal business hours; non-disruptive
Protective order re software, system data etc learned or obtained

Non-disclosure; limit access, use etc to litigation
No appropriation for gain
Proprietary information re design & operation or implementation

REQUESTING PARTY SEARCH REQUESTS

Requesting party serves search request
Responding party conducts search in accord with request
Responding party conducts search, locates, reviews and produces [or object & identifies] docs in electronic form
Alternative of downloading and printing docs with objectionable material redacted and identified in general manner ?

RESPONDING PARTY PROVIDE COMPUTER & ACCESS

SUBJECTS FOR FORM INTERROGATORIES

WRITTEN AND UNWRITTEN POLICIES, PROCEDURES

Configuration and operation of system
Document retention policies, enforcement, and deviations re specific types of documents or key personnel: email, correspondence, voice mail, contracts
Special procedures implemented since knowledge of claim, complaint, discovery, order
Hardware retention and disposition policies

IDENTIFICATION OF COMPUTER PERSONEL TO DEPOSE

Head of department or CIO
Tech support staff & former employees
Persons with access to computers or files
Independent contractors

CURRENT & PRIOR SOFTWARE PROGRAMS AND VERSIONS

Brand & version of each operating system, network management and file management program
Operating systems on network, pc etc
Programs: word processing, email, utilities, data base management
Specialized software for particular function or industry e.g. financial, HR, construction, design, scheduling
Automatic file management programs that delete inactive files
Programs used to monitor employee activities
Encryption software & methods used to perform the encoding.

ENCRYPTION & PASSWORD INFORMATION

All persons who had or have access to the encryption passwords

BACKUP AND STORAGE [past and current]

Hardware, tapes, optical disk
Locations of storage
Name & version of software
Schedules, retention, reuse, index, storage,
Individual practices
Data compression

HARDWARE original & current

Personal use or availability of equipment by key personnel: laptops, PDA, home computers
Servers: current & out of service; access
Disposition and destruction practices

NETWORK & COMPUTER SYSTEMS

Configuration, layout, devices to write data, media, format
Type: NT, Novel, proprietary [ ID & limit to relevant network]
Topology & maintenance
Security:

history of security breaches [internal & external hacking]
protection and loss of data
risk assessment program
firewalls, intrusion detection, scanning & probing
virus protection and history
Encryption, passwords, access codes
Precautions for change of personnel, software or hardware

Data bases and persons with access: program, compilation, reliability
Interconnectivity and data sharing among parties or with 3rd parties
File servers identification; current & out of service servers
Access to servers [past & current] All applications and documents [email, voicemail]

persons; key persons
terminals accessing [home pc & laptops]
Access: passwords, logons
Network administrator password
All persons with passwords

IDENTIFY RELEVANT DATABASES

How programmed & complied;
Determine whether or not its output is reliable in an evidentiary sense: business record
Document management databases maintained for archival purposes.

E-MAIL

Programs
Users
How stored: back-up, archive, on-line
Servers & backup schedules
Third party providers or ISP

DEPOSITION ISSUES

PRODUCTION OF COMPUTER DATA AT DEPOSITION

CORPORATE DEPOSITIONS ON COMPUTER AND TECHNOLOGY ISSUES

TELEPHONIC AND VIDEOCONFERENCED DEPOSITIONS

Any rules/statutes required for video or telephonic depositions?

NY deponent sworn by NY notary
Ct reporter in NY / SF; depends on whether party or nonparty?
Atty in SF & NY & LA

See Texas Rule 199: http://www.supreme.courts.state.tx.us/rules/tdr/index.htm

CONDUCTING DISCOVERY ELECTRONICALLY

Pursuant to written stipulation of all parties or court order upon a showing of good cause, the court shall enter an order for conducting discovery by electronic service of computer generated documents which shall address the following issues:

Format & authenticity of E-discovery documents

Service protocol and proof of service

Responses to repeat requests and to be seriatim

Storage of and access to Documents

Maintain electronic depository [write protected copies]
Apportionment of expenses
Encryption of documents to which access is restricted e.g. attorney only docs
Contents of depository

Pleadings
Case management orders including orders setting trial or arbitration dates
Discovery demands & responses
Proofs of service
Correspondence re discovery ?
Discovery motions and supporting papers
Discovery Orders
Stipulations re discovery
Depositions: transcripts, digital video
Expert documents
Disclosures
Reports
Data & docs relied upon etc

Web access by all parties to document depository
Maintain hard copy?

Document authentication protocal
Electronic bate stamping of e-documents
Write protection of all e-documents produced
Format of production CD-ROM ?