We review the intersection of the legal requirements of collection and the technical process of data collection in part 5 of our collection series. The ultimate goal of evidence collection is the eventual use of some of that evidence in court, whether by you or another party. The admissibility of a particular piece of evidence at trial turns on a variety of factors, including its relevance, its potential for prejudice, its status as hearsay, etc.
In Klipsch Group, Inc. v. ePRO E-Commerce Ltd., Case No. 16-3637, the Second Circuit considers $2.7 million discovery sanction in a $20,000 case, providing a helpful reminder that sanctions for discovery misconduct must be proportional to the effect of the misconduct and not necessarily the value of the case.
Two new decisions on proportionality in discovery include Firefighters’ Retirement System v. Citco Group and Nece v. Quicken Loans, where courts consider when requested discovery is disproportionate. The amendment to FRCP 26(b)(1) incorporates a multi-factor proportionality test directly into the general discovery scope definition and places “proportional” on equal footing with “relevant” as a discoverability criteria.
Learn about collecting and recovering ESI from computer memory with the difference between physical collections and logical collections, recovering deleted files, preventing data alteration and verifying the accuracy of the collection. Verifying the accuracy of collection is as important as avoiding source alteration.
Learn how computers store ESI by looking at the tiers and types of memory and how they all work together to store different types of data in different places. As the computer or device operates, there is a constant flow of information being read from and written to hard drive storage, RAM, and the caches – all ESI and all potential evidence. Devices are managing a collection of thousands of discrete files that is constantly evolving as files are read, modified, written, and deleted.
The NY Appeals Court considers discovery of private facebook data in Forman v. Henkin, including private facebook messages and photos. The New York State Court of Appeals weighs in on the discoverability of Facebook evidence because of the defendants request for private facebook materials from the plaintiff.
Welcome to “Because You Need to Know,” XDD’s monthly news round-up. In these posts, we gather together interesting articles, new publications, noteworthy cases, and XDD materials from the preceding month. This post gathers items of interest from February 2018.
In part five of our eDiscovery investigations series, we discuss modern challenges in eDiscovery investigations and key takeaways from eDiscovery investigations. Our discussion covers mobile devices and BYOD practices, as well as alternate communication channels like secret message apps as modern challenges in investigations. Check out our five key takeaways after a review of eDiscovery in investigations.
The broad scope of collection is broken down into the legal scope and the technological scope. The practical scope of ESI collection is determined both by the actual requests from other parties and by your own information needs related to the matter. The maximum-possible scope is established by the FRCP or your state’s equivalent ruleset. The technological scope is summarized in that nothing can be overlooked based purely on its file format or source type. Read to learn details on both the scopes.
“Come, Watson, come!” he cried. “The game is afoot. Not a word! Into your clothes and come!” – Arthur Conan Doyle, The Adventure of the Abbey Grange.
The majority of eDiscovery work takes place in the context of litigation, but a significant amount of it takes place instead in the context of investigations. Although the available ESI and the available eDiscovery technologies are the same, the realities of handling investigations are different in some ways worth discussing.
As electronically-stored information (ESI) has become the norm, as computers and mobile devices have proliferated, and as eDiscovery tools have multiplied, competence with technology has become an essential part of being an effective legal practitioner. Since 2012, that practical requirement has been slowly becoming a formal one.
Analysis and review is the process of figuring out what happened by investigating your collected evidence, and that process is made more challenging when relevant individuals have actively tried to conceal what’s happened – or at least tried to be subtle about it while it was happening. Also, it is not uncommon for individuals to communicate using euphemisms or coded language or to communicate using alternative channels. To overcome these challenges, the analysis and review process must be undertaken with these realities in mind.