The need for a unified standard in eDiscovery

The Need for E-Discovery Standards: General Topic: The need for a unified standard in eDiscovery Custom Essay

The need for a unified standard in eDiscovery

  1. General Topic: The need for a unified standard in eDiscovery.
  2. Specific Topic: The Federal Rules of Civil Procedure and Federal Rules of Evidence guide legal teams in the collection, review and production of electronically stored information or ESI in civil and criminal legal disputes. ESI stands for ?Electronically Stored Information? and is electronic files like Outlook Email, Word, Excel, Apple files, proprietary files, CAD and other electronically stored files which may contain information relevant to prosecuting or defending a case.

Moreover, the Federal Rules direct legal teams to cooperate in the collection, preservation and production of ESI. This comes as very foreign to legal teams which are adverse to one another and are used to fighting tooth and nail to insure that clients are protected and potentially harmful information to their case hidden. The Federal Rules direct parties to work together and decide upon a ?form of production? for the electronic files which parties often fight over in court due to cost, scope, relevancy, as well as protecting other client interests like guilt, innocence, liability, etc. The stakes are not small as cost burdens are placed on parties which may far exceed the value of the case or capacity of the organizations involved.

Despite ?the rules? there is no agreed upon standard for the collection, preservation and production of evidence. There are a number of standards bearing organizations that have sprung up in this relatively new field which have attempted to create standards, procedures, workflows and ethical rules to meet the Federal Law that govern eDiscovery.

I will argue for the need of a common eDiscovery standard amongst several that are currently being advanced.

  1. Why Select this Topic? What are Your Objectives?

Imagine, if you were party to a case and had to collect and review all of your email for the past 5 years would you be able to? How long would it take you to go thru all of the different email providers you may have used, request backup tapes, restore those tapes and then sift thru potentially hundreds of thousands of pages of junk, your fantasy football league, vacation photos, etc. just to find the handful of documents that might be relevant to the case? You may not have the technical skills to collect this info ? do you think it would be expensive to use a vendor? This is just your email ? imagine if you had to go find all of the computers you have used in the past 5 years and retrieve the information from those as well. It is mind boggling to think where we have put all of our ESI and how we would ever go back to find it.

Perhaps in the case above the discovery request was reasonable because it was a dispute in the millions of dollars and being handled by a large law firm. Unfortunately, discovery requests such as above are all too common in smaller cases as well. Lawyers know that by placing such extreme burdens on parties that the likelihood of settlement or a larger settlement is likely.

The Federal Rules were meant to aid parties in efficiently being able to undertake discovery requests by opposing parties by requiring that parties meet, confer and cooperate on eDiscovery requests.

Instead, eDiscovery can now be used as a weapon where significant cost and work burdens are placed on parties in attempting to review potentially massive amounts of information at a great cost. My objective is to advance an argument for the use of a common standard in the collection, preservation and production of ESI or Electronically Stored Information.

  1. Main Divisions in the Project: (see next page)

1) Introduction

2) Chapter One

(a) What is eDiscovery?

(b) The Legal Market: Big Firms and Solo Practitioners

3) Chapter Two

(a) Analysis of the ?problem?

(i) Mountains of electronically stored information (ESI) that must be analyzed.

(ii) A growing problem

(iii) Native vs. TIFF vs. XML

(iv) Metadata

4) Chapter Three

(a) Competing Standards to comply with the FRCP and FRE. (NOTE: FRCP means ?Federal Rules of Civil Procedure/ FRE means ?Federal Rules of Evidence?)

(b) The Federal Rules of Civil Procedure

(i) Cooperation/Disclosures FRCP 16

(ii) Reasonableness FRCP 26

(iii) Form of production FRCP 34

  1. Inadvertent production FRE 502

(iv) Sanctions FRCP 37

(v) Authentication FRE 901

5) Chapter Four

(a) Competing Standards

(i) EDRM

(ii) Sedona Conference

(iii) ?Discovery Pilot? (i.e. ? the 7th District Standards Program)

(iv) Other Recognized Standards

  1. Vendor Based Standards
  2. SEC ? Securities and Exchange Commission
  3. XML

6) Chapter Five

(a) Analysis of different standards

(b) Is there a technical answer to the problem?

(i) Predictive coding

7) Conclusion

 

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