ACEDS Latest Update with Complete Solutions

ACEDS Latest Update with Complete Solutions Proportionality Burden/Expense is outweighs value, may shift costs or impose limits Attorney Certifies Discovery Request Consistent w/ FRCP, Non-Frivolous, not to harass, not unreasonably burdensome Rule 26(f) "Meet and Confer" - opportunity to exchange/agree on Discovery Creation of "Discovery Plan" Limit scope (depositions, interrogatories, etc) Rule 26(a)(1) Proposed discovery plan. address preservation issues. Rule 26 Discovery Plan Initial disclosure (subjects requiring discovery) Timetable Format Privilege issues Limitations on discovery (per agreement) Clawback agreements Rule 26 Discovery Plan (2) May list particular issues and agree on timing (e.g. production schedule) or broader initial discovery to narrow later. Early Data Assessment Preliminary assessment of data. Evaluation of systems, custodian data, other evidence. Sort out critical / non-critical groupings Is not early case assessment Helps to : Assess costs Choose Technologies Address at 26(f) conference Merits of case before doc review Decide whether to settle / litigate FRCP 26(b)(1) Provides guidance on cost shifting. "reasonableness" Rule 26(b)(2)(B) Not reasonable accessible - due to "undue burden or cost" Requires "Good Cause" Documenting Preservation Complete & accurate records: Witness interview notes Copies of org charts Legal Hold notice Evidence of distribution Follow-Up actions Records Management What is the Records Management policy? Purpose & schedule Litigation Hold always supercededs Backup Media Back-Up policies, schedule, restore time, impact on metadata, etc Preservation Begins with a litigation hold. Immediate obligation to preserve ESI Steps to prevent ESI from being overwritten Litigation Hold Anticipation of litigation Reasonable steps to preserve May result in spoliation Spoliation - Potential impacts Adverse inference jury instruction Limiting claims or defenses Monetary Award default judgment or dismissal Custodian individual likely to hold relevant content Types of ESI email storage devices PC's Network storage Private storage (e.g. home PC, external media) Social Networking sites. Non-Custodial ESI Not "owned" by a particular individual Structured or Unstructured data Databases WIKI's Shared Network locations Must identify someone responsible for each resource Preservation - Non-Custodial ESI Understand how each source operates Is it overwritten / cumulative ? Is it accessed by multiple people? Litigation Hold Plan 1. Have it in-place before Litigation ensues a. identify personnel and responsibilities b. Written policy and forms available c. Tracking procedure in-place (e.g. ticketing) Legal Hold Written notice description of subject matter examples of ESI storage locations Clear instructions, anticipate problems POC for questions Confirmation/Acknowledgement of Hold Rule 37(e) Replacement of "Safe Harbor" provision No sanction if replacable IF prejudiced - No greater than to cure Rule 37(e) - continued IF intent to deprive: adverse inference dismiss / enter judgment Negligence is not sufficient for severe sanction Deletion of Data What does "deleted" mean? Hard vs. Soft delete Collection - aspects Who, what, when, how? Targeted vs. Broad collection Active vs. Forensic Collections - Metadata Regardless, metadata must be collected. System: last modified/accessed or location File: author info / edit Collection - general repeatable, defensible strategy chain of custody documentation testimony of personnel hash values, if necessary Aspects of Collection (challenges) Cloud computing, web-based email, social media depends on possession, custody or control directed to owner of the data Databases - Collections DB collects, organizes & presents information - standard or custom report - export of selected data fields - export of all data fields Relies on communication / coordination btwn DBA TAR - Seeding It depends on the tool used. Preservation - Social Media Do not delete account, instead download what's available and use sparingly