Publications: E-Discovery Update - August 2008

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It’s a Whole New Ball Game:
How Metadata has Changed the Rule 26(f) Discovery Conference and 10 Essential Steps to Ensure you Don’t Strike Out.

by Tina B. Solis with special thanks to Jennifer Carroll

Electronically stored information (“ESI”) and the metadata contained within ESI have drastically changed the way that parties in a lawsuit need to prepare for litigation. Rule 26(f) of The Federal Rules of Civil Procedure requires parties to “meet and confer” early in the litigation process to discuss their plans for discovery. In the past, preparation for this discovery conference required little more than a brief discussion about relevant documents between a party and its attorney. But, given the massive amounts of information that can now be found in an electronic document’s metadata, preparation for this conference has now become significantly more comprehensive. Being prepared for the Rule 26(f) conference requires anticipatory planning and inventorying; in many circumstances, it requires that a party plan for the conference even before litigation is initiated.

Rule 26(f) now explicitly requires that the parties establish a plan for discovery of ESI during the conference.¹ Proper use of this conference can “facilitate the just, speedy, and inexpensive conduct of discovery involving ESI...and...promote whenever possible, the resolution of disputes regarding the discovery of ESI without Court intervention.”² While this rule is purposefully less rigid than one where the court dictates every aspect of metadata production³, a party and its attorney must plan ahead. Many districts include sections in their discovery conference reports/plans that require the parties to list whatever agreements they have come to regarding the discovery of electronic documents⁴, but few have made their own rules specifically dictating what aspects of ESI should be discussed during the conference.⁵

One issue that is emerging regarding the conferences is the need for the parties to dictate what metadata should and should not be discoverable.⁶ There is a catch-22 in being able to control metadata requests so completely. Requesting too much can require the potentially enormous expense of having to analyze all of that metadata⁷, but not requesting enough may cost a party the right to ask for more later.⁸

Producing parties also have to consider how much metadata they might have to give up. The courts are undecided as to whether or not there is a presumption for, or against, providing metadata during discovery. Some courts find that because affirmative action must be taken to remove metadata from documents, it should be provided, unless the producing party objects.⁹ Others see no need to provide metadata unless it is specifically requested, because of the “undue cost and burden” of reproducing and recovering metadata.¹⁰ Negotiating a mutually acceptable metadata discovery plan is a way that parties can avoid being subjected to the court’s status quo, which may benefit neither.

As a result, preparing for the 26(f) discovery conference is much more challenging and time consuming now that metadata must be considered. “An hour or two of hard work should lie behind every minute of a 26(f) conference.”¹¹ This time is needed to establish a plan for approaching the conference with a well-rounded understanding of the intricacies of the information contained within the metadata on both sides of the controversy. The following steps are important for ensuring a party is fully prepared for a productive 26(f) conference:

1. Hire a consultant. If your IT personnel are not familiar with litigation, it is important to hire a consultant at the onset of litigation to bridge the technology world with the legal world. Having someone on your side who understands both arenas is an invaluable asset and well worth the expense.
2. Inventory your own metadata. Become aware of what information lies in your metadata and what effects it might have on your case. Establish what information you might not want to be discovered, such as privileged and confidential information, and determine where it might be located in the metadata of your electronic documents.
3. Decide what you want from the opposing party. When determining the documents that you will be requesting from the other party, consider what metadata might be useful for you to know.¹² Additionally, determine what metadata is necessary to be able to search or review any ESI you are requesting from the opposing party.¹³
4. Choose carefully and be selective. Whatever forms of metadata you request will likely cause the other hand to want that same level of metadata production from you. Therefore you should assess whether you are willing to sacrifice information that you want in order to protect your own metadata. Requesting more metadata than you really need usually never pays off.
5. Be specific. Being specific in your requests can result in having them fulfilled without hassle from the other side or from the court.¹⁴ On the other side, being specific about what you will be providing (or more appropriately what you will not be providing) will help to ensure that you are not accused of hiding or spoliating evidence.¹⁵
6. Consider admissibility. Be sure what you want is relevant and probative.¹⁶ Asking for metadata that turns out to be inadmissible will only anger the other party, the judge, and your document reviewers. On the other hand, if the opposing party resists a request for a certain type of metadata, having strong proof that it is critical to the dispute or to the discovery process in general will greatly assist in compelling production.
7. Be organized. No matter how much you prepare, you will never know the other party’s exact posture going into the conference. Therefore, it is important to have easy access to all of the knowledge you have gained during conference preparation. Come to the conference armed with lists of documents, locations, relevance, file types, etcetera at your disposal, so you can be prepared for surprises.
8. Establish terminology. Pay careful attention to the words that are used in discussions related to metadata. Because e-discovery is so new, not everyone uses standardized language relating to metadata and ESI. During the 26(f) conference, learn the terms for the types of information you want and make sure the other party knows what you mean.
9. Anticipate objections. The opposing party likely will make objections to your metadata discovery requests. Anticipating those objections in advance allows you to neutralize them during the 26(f) conference with well considered answers.
10. Not involved in litigation? You still need to prepare. An ounce of advance planning for any sort of litigation can do a world of good once your company is embroiled in a legal controversy. Start by getting your IT staff in on the action.¹⁷ Have a document retention policy that includes ESI in place and adhere to it. Train your IT staff on e-discovery and work together to devise ways to set up, organize, and inventory your company’s electronic information, so that if ever you find yourself in court, you will be ready.¹⁸

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¹ Fed. R. Civ. P. 26(f); see also, Muro v. Target Corp., 243 F.R.D. 301, 307 (N.D. Ill. 2007).
² O’Bar v. Lowe’s Home Ctrs., Inc., 2007 WL 1299180, 4 (W.D.N.C. 2007); The Sedona Conference, The Sedona Principles (Second Edition): Best Practices Recommendations & Principles for Addressing Electronic Document Production, 65 (2007) (available at: http://www.thesedonaconference.org/dltForm?did=TSC_PRINCP_2nd_ed_607.pdf).
³ Sedona Conference, supra note 2 at 65.
⁴ K & L Gates, Updated List: Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues, Electronic Discovery Law (Feb. 11, 2008), http://www.ediscoverylaw.com/.
⁵ K & L Gates, supra note 4; see also, United States District Court for the District of Maryland, Suggested Protocol for Discovery of Electronically Stored Information, http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf ; United States District Court for the District of Kansas, Guidelines for Discovery of Electronically Stored Information (ESI), http://www.ksd.uscourts.gov/guidelines/electronicdiscoveryguidelines.pdf (Kansas and Maryland have taken the lead in electronic discovery rules by established their own protocols detailing the aspects of e-Discovery that should be considered).
⁶ Fed. R. Civ. P. 26(f)(3)(C) (“any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced”); Fed. R. Civ. P. 26(f)(3)(E) (“what changes should be made in limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed”).
⁷ Williams v. Sprint/United Management Co., 230 F.R.D. 640, 651 (D.C. Kan. 2005).
⁸ Autotech Techs v. Automationdirect.com, 248 F.R.D. 556 (N.D. Ill. 2008).
⁹ Williams, supra note 7 at 652.
¹⁰ Kentucky Speedway, LLC v. National Association of Stock Car Auto Racing, Inc., 2006 WL 5097354, 8 (E.D.Ky. 2006); Wyeth v. Impax Laboratories, Inc., 248 F.R.D. 169, 171 (D.C. Del. 2006).
¹¹ Craig Ball, Ask and Answer the Right Questions in EDD, Law Technology News (Jan. 4, 2008) (this article provides 50 questions that should be answered by the 26(f) conference).
¹² Sedona Conference, supra note 2 at 60-61.
¹³ Sedona Conference, supra note 2 at 62 (e.g. The formulas in an Excel spreadsheet reside in the metadata. If a party is interested in seeing the calculations that resulted in the numbers that appear on the spreadsheet, the metadata will be necessary.).
¹⁴ W. Lawrence Westcott II, The Increasing Importance of Metadata in Electronic Discovery, 14 Rich. J.L. & Tech. 10, 12, http://law.richmond.edu/jolt/v14i3/article10.pdf.
¹⁵ Jo Maitland, Judges speak candidly on new e-discovery rules, Storage Technology News, (Jan. 31, 2007), http://searchstorage.techtarget.com/news/article/0,289142,sid5_gci1241499,00.html.
¹⁶ Sedona Conference, supra note 2 at 61-62.
¹⁷ Ronald K. Perkowski, Coping with the EDD Drumbeat, Legal Technology (Jan. 25, 2008), http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=900005501571.
¹⁸ Jennifer E. Lacroix, Practical Guidelines for Managing eDiscovery Without Breaking the Bank, Practicing Law Institute: Patents, Copyrights, Trademarks, and Literary Course Handbook Series, PLI Order No. 14506, 650-651 (2008) (available on Westlaw).

Evidentiary Foundations for Electronic Evidence: Avoid the “Oops” Moment by Properly Authenticating ESI

by Richard H. Tilghman

You’re on trial, about to cross-examine the plaintiff’s star witness regarding a text message sent from her cell phone that refutes her testimony on direct examination that she did not have a phone with her on the day in question. You mark the exhibit and hand it over to opposing counsel before approaching the witness with the document. Opposing counsel immediately objects to the document as lacking foundation. The judge excuses the jury while you attempt to lay a foundation for the text message:

“You sent this text message to Marie Smith on the day in question, correct?”

“Actually, no. My son was using my phone that day. I don’t even know how to send a text message.”

Unfortunately, you took the authenticity of the text message for granted at deposition and your key piece of evidence gets excluded at trial because you have no witness to establish the foundation for the document.

This is a fairly easy mistake to avoid, but one often overlooked at deposition. Many lawyers simply assume that because something appears authentic, it actually is. But courts do not. Federal Rule of Evidence 901 requires the proponent of a piece of evidence to show that the evidence is what the proponent claims. Some courts don’t take this requirement lightly. In In re Vinhee, 336 B.R. 437 (9th Cir. 2005), the court required a strict evidentiary foundation for a creditor’s electronic records and excluded the evidence necessary for the creditor to prove its case because the creditor’s records custodian did not establish that the creditor conducted “its operations in reliance upon the accuracy of the computer in the retention and retrieval of the information in question.” Interestingly, the court excluded the evidence without any objection from the debtor, who was in default and did not appear at trial. The Ninth Circuit Court of Appeals upheld the ruling. Likewise, in Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007), the Court denied cross-motions for summary judgment where the parties failed to lay a proper foundation for electronically stored information (“ESI”).

Both Vinhee and Lorraine relied on a book by Professor Edward J. Imwinkelried, which provides eleven elements for authenticating ESI kept in the ordinary course of business:

1. The business uses a computer;
2. The computer is reliable;
3. The business has developed a procedure for inserting data into the computer;
4. The procedure has built-in safeguards to ensure accuracy and identify errors;
5. The business keeps the computer in a good state of repair;
6. The witness had the computer readout certain data;
7. The witness used the proper procedures to obtain the readout;
8. The computer was in working order at the time the witness obtained the readout;
9. The witness recognizes the exhibit as the readout;
10. The witness explains how he or she recognizes the readout; and
11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.

While these elements refer to a “computer,” the principles apply equally to other devices that generate ESI. Although some courts may be more lenient than these standards require, prudent counsel should have specific facts supporting each of these requirements to support the authenticity of its own ESI. Likewise, if ESI is produced by the opposing party, counsel should establish these evidentiary foundations during discovery to avoid unnecessary mistakes at trial.

Should You Depose the Opposing Party’s Information Technology Representative? Tips for Avoiding E-Discovery Pitfalls

By Richard H. Tilghman IV

Rule 30(b)(6) depositions of information technology (“IT”) representatives play an increasingly important role in modern litigation. For the party taking the deposition, it provides an opportunity to gain important information for crafting more effective discovery requests. For the party being deposed, failure to adequately prepare for a Rule 30(b)(6) can have disastrous consequences for the remainder of the case.

For example, in GTFM, Inc. v. Wal-Mart Stores, Inc.¹, the deposition of a Wal-Mart IT vice president revealed that Wal-Mart’s counsel had inaccurately informed the plaintiff, based on information from a Wal-Mart senior executive, that the company could only generate data on local sales for five weeks. In reality, as the IT vice president testified, the company’s computers could track the requested information for up to one year. Because the deposition of the IT vice president occurred more than one year into the litigation, some of the information the plaintiff requested was no longer available. As a result, the court permitted the plaintiff to inspect Wal-Mart’s computer facilities and required Wal-Mart to pay all costs resulting from the inaccurate disclosure, which amounted to nearly $110,000.²

This case provides important lessons for plaintiffs and defendants alike. For the defendant, the message is clear: open communication between counsel and the appropriate IT professionals is essential to avoiding costly e-discovery pitfalls. For the plaintiff, this case demonstrates the importance of deposing an IT professional early in the case. Had the plaintiff deposed Wal-Mart’s IT vice president earlier in the litigation, the requested information could have been recovered. Although the court ultimately awarded a remedy that provided the plaintiff with a strategic advantage in that Wal-Mart was forced to expend large discovery costs, there is no guarantee that all courts would provide similar relief.

In addition to the pitfalls evident from the GTFM decision, there are a host of other considerations a company must assess to adequately take and/or defend a 30(b)(6) deposition of an IT representative. For the party taking the deposition, the goal of a 30(b)(6) deposition should be to gain as much information as possible about the opposing party’s information systems and information retention policies. For instance, the IT representative should be questioned on the following topics:

• Where important files may be stored;
• Company archiving procedures;
• Information retention policies;
• Computer systems currently or formerly in use;
• Past and present operating systems;
• Company policies regarding file-naming;
• How back-up tapes and computer disks are labeled and stored;
• Policies relating to use of company software and systems; and
• What persons in the company have access to the relevant files and information.

With this information in hand, a litigant is better prepared to craft appropriate discovery requests directed to the information most relevant to the case. In doing so, the litigant avoids becoming burdened with overwhelming amounts of information that require countless hours to sift through and assess, all at substantial costs to the client. In addition, an effective 30(b)(6) deposition of an IT representative allows a party to more effectively argue objections to discovery requests that the opposing party deems unduly burdensome.

For the party defending a 30(b)(6) deposition of an IT representative, the goal should be to thoroughly prepare the witness about the issues important to the litigation and the types of questions that will be asked. The first step in this preparation occurs as soon as it becomes apparent that litigation between the parties is likely to occur. At that point, the IT representative must be aware of what information the company stores that is relevant to the litigation and implement procedures to ensure that information is retained. Eventually, when the IT representative is deposed, this will avoid the unpleasant revelation that important electronic information has been destroyed.

If possible, in preparing for the deposition, the IT representative and counsel should meet at the company’s facility at least one week prior to the deposition. This meeting provides an opportunity for counsel to become educated about the electronic information stored by the company and all aspects of the company’s information systems. In addition, if electronic information has been previously produced, counsel should determine whether any responsive information was inadvertently not produced, so that it can be produced prior to the deposition. Then, counsel should explain to the IT representative the issues that are relevant to the litigation and the subjects on which she will be questioned. It is important to inform the IT representative that her role is not to educate opposing counsel on the company’s information systems, but rather, to simply answer the questions posed by opposing counsel. Once the IT representative is fully informed about the issues relevant to the litigation, and counsel is comfortable with the company’s IT infrastructure, the company is ready to proceed with a successful 30(b)(6) deposition.
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¹ GTFM, Inc. v. Wal-Mart Stores, Inc., 2000 WL 335558 (S.D.N.Y. Mar. 30, 2000).
² Virginia Llewellyn, Electronic Discovery Best Practices, 10 Rich. J.L. & Tech. 51 (2004).

Who Pays for Electronic Discovery?

By James M. Carlson

The increasing and ever-evolving use of electronic data has challenged courts to develop a framework to govern electronic discovery and the production and review of electronically stored information (“ESI”). ESI is often stored on backup tapes or even technologically outdated mediums. Restoring information to a comprehensible format from these sources can be costly – whether for production, review, or forensic discovery. In a recent Seventh Circuit case, for example, it was estimated that the cost to process a single electronic document request for e-mails stored on backup tapes would amount to nearly $250,000.¹

In light of such expenses, a common question arises during the discovery process of most lawsuits: which party should pay for the burden of producing electronic data? Traditionally, the responding party to a discovery request is responsible for the costs of production, absent a showing that a request is “unduly burdensome or expensive.”² The question is then raised: what constitutes an unduly burdensome or expensive request triggering a shift in the payment of fees to the requesting party?

Three significant cases must be considered in any discussion of e-discovery cost-shifting in federal courts.

Zubulake v. UBS Warburg

Zubulake v. UBS Warburg LLC³, is the preeminent decision on the topic of e-discovery. In Zubulake, the plaintiff, Ms. Zubulake, sued her former employer for sexual discrimination. As part of the discovery phase, Zubulake demanded the production of deleted e-mails which were stored on backup tapes. Restoration of these types of electronic data was – and still is – quite expensive. Accordingly, the Zubulake Court established a now commonly-used seven factor test to determine whether cost-shifting is appropriate:

1. The extent to which the request is specifically tailored to discover relevant information;
2. The availability of such information from other sources;
3. The total cost of production, compared to the amount in controversy;
4. The total cost of production, compared to the resources available to each party;
5. The relative ability of each party to control costs and its incentive to do so;
6. The importance of the issues at stake in the litigation; and
7. The relative benefits to the parties of obtaining the information.

These factors are not equally weighted.⁴ The first two factors (the extent to which the request is specifically tailored to discover relevant information, and the availability of such information from other sources) which comprise the “marginal utility test,” are the most important, and will therefore be weighted the heaviest when considering e-discovery cost-shifting.⁵ As explained in McPeek v. Ashcroft, “the more likely it is that the backup tape contains information that is relevant to a claim or defense, the fairer it is that the [responding party] search at its own expense. The less likely it is, the more unjust it would be to make the [responding party] search at its own expense.”⁶

And finally factor seven – the relative benefits to the parties of obtaining the information – is the least important because the court presumes that a response to a discovery request generally benefits the requesting party.⁷

Wigington v. CB Richard Ellis, Inc. –
An Illinois’ U.S. District Court Applies Zubulake

The U.S. District Court for the Northern District of Illinois applied the Zubulake factors and approved of “cost shifting” in Wiginton v. CB Richard Ellis, Inc., 2004 WL 1895122 (N.D. Ill. 2004). Wiginton was a class action filed by female employees alleging a pattern and practice of sexual harassment. As in Zubulake, plaintiffs sought to recover deleted e-mails from backup tapes. The Seventh Circuit applied a modified Zubulake test in deciding whether e-discovery cost-shifting was appropriate. In shifting 25% of the costs to the requesting party, the Wiginton court used the seven Zubulake factors but then added an eighth factor. The eighth factor was “the importance of the requested discovery in resolving the issues at stake in the litigation” which Zubulake did not specifically enumerate. The relative importance of this new factor was not discussed directly, but was not given heightened nor diminished weight when applied to the facts of Wiginton.

Toshiba – A California Approach

Lastly, state courts have begun to weigh in on the issue of allocating the costs of e-discovery. Most significant is Toshiba America Electronic Components, Inc. v. Superior Court (Lexar Media)⁸ a California case dealing with assigning the costs of ESI-based document requests. There, the California court looked to a state law regarding the production of documents and ruled that a party seeking ESI from an opposing party must bear its “reasonable expense” for any “necessary translation” of archived electronic data. The concern raised by this ruling is that party’s seeking ESI may be forced to limit their requests in order to prevent excess costs.

Conclusion

Whether cost-shifting is appropriate in e-discovery is a fact-specific question that will vary from case to case. The best advice for litigators facing a possible fee-shifting situation is to be thoughtful and deliberate in crafting their electronic data requests. Specifically, counsel and their clients should consider the following:

1. Narrowly-tailored requests. Due to the expense of electronic discovery, a court will not tolerate “fishing expeditions” when it comes to electronic data requests. A requesting party should limit requests to specific topics or dates if they want to avoid paying for the production themselves.
2. Data samples. Courts have relied on sampling to determine whether producing the full data request would prove fruitful and hence be worth the cost. When faced with e-discovery, it may be a good idea to suggest an initial data sampling first be conducted.
3. An effective digital document retention policy (DDRP). The issue of fee-shifting is but one more reason why all companies should have in place a well-crafted, effective DDRP. By doing so, a company facing requests for ESI will be able to clearly define for the court what recovery is or is not possible, and moreover, a clear an defective document retention policy will ease the retrieval of data as required by such requests. For all companies, a clear DDRP is certainly a wise investment.
   

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¹ Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004).
² See 10 ILL. PRAC., Civil Discovery § 23.12
³ 217 F.R.D. 309 (S.D.N.Y. 2003)
⁴ Zubulake, 217 F.R.D. at 322.
⁵ Id. at 323.
⁶ 202 F.R.D. 31, 34 (D.C. 2001)
⁷ Zubulake at 323.
⁸ 124 Cal. App. 4th, 762 (Cal. Ct. App. 2004).


Should I Hire an ESI Expert?

By James M. Carlson

Throughout the course of litigation, parties are faced with very important questions about how to manage their case and prepare for trial. With the prevalence of electronically stored information (“ESI”), one of those pressing questions is whether or not a party needs to hire an expert to address ESI issues. There is, however, no immediate right answer. The correct answer will depend on the issues of the case, concerns of cost, and other factors.

The Important First Question–What Kind of Expert?

Depending on the case, it may make sense to hire a general ESI expert for data management. Such an expert would be invaluable in collecting data, sorting through electronically produced data, and readying data for proper production. As we have alluded to in previous issues – and as we will be discussing in future issues – the failure to properly produce ESI can lead to disastrous outcomes. The ability to allow experts to bear this burden can be a great relief to parties. Moreover, such experts allow legal counsel to work with an ESI expert to maximize the usefulness of ESI. ESI experts also function as a protection to parties by using an established protocol for handling ESI, producing ESI, and properly tracking the chain of evidence. In order to reap these benefits, however, a party must still retain legal counsel who is comfortable with ESI issues.

In certain other cases, a forensic ESI expert may be required. Here, the ESI expert would focus on picking through ESI in order to trace the history, creation, and destruction of produced ESI. In fact, forensic ESI experts frequently are able to resurrect ESI that was once thought completely deleted. Further, forensic ESI experts can focus on ESI manipulation and whether or not it is clear that the ESI is authentic and not spoofed. These experts are truly the E-detectives who can track the more dramatic twists and turns of ESI. They, of course, are not cheap and not required on every case. But on the right case and with the right circumstances, they can score a knockout punch at trial or even before.

Other Factors to Consider

Ultimately, when considering whether or not to hire an ESI expert, a party must weigh the following factors:

1. Type of Case. Is the case really an ESI intensive matter? Do the facts of the case involve numerous e-mails or electronic files? Clearly, the more tech centered a case is, the more likely an ESI expert should be engaged.
2. Costs and Size of Case. ESI experts are not cheap. The best ESI experts have hourly rates that are comparable to or easily exceed those of top attorneys. As such, the size of the case must be considered. For matters that are not particularly large it may simply not make sense to engage an ESI expert.
3. Know Whom Are You Hiring. One of the biggest pitfalls in hiring an ESI expert is expecting one thing and getting another. Here, it is important to note the particular expertise, resume, and experience of your expert. It also goes without saying that you should always seek to confirm the background and qualifications of any expert.
4. Know When to Hire the Expert. The best timing for hiring an ESI expert may be right at the beginning of a case when the parties are combing through all the data to be produced. It may, however, make sense to only hire an ESI expert for a discreet matter to be dealt with separate from the case as a whole. For instance, a forensic ESI expert might be useful for a small sub-set of e-mails rather than analyzing each and every e-mail produced by the parties.
5. Know if They Will Be Called As a Witness. Some ESI experts make fantastic trial witnesses. They are quick, experienced, and very comfortable on the witness stand. Some ESI experts are not. They are not particularly at ease at a cocktail party let alone an adversarial proceeding. Accordingly, parties must look into whether or not an ESI expert will be used as a witness at trial. This will affect how the expert is used and whether or not the expert is even hired in the first place.

Only after evaluating these factors and meeting with legal counsel can a party make an informed decision about hiring an ESI expert.

Electronically Stored Information, Where is My ESI Hiding?

By

Electronically stored information (“ESI”) includes all data stored and or saved in a multitude of formats on a variety of devices and platforms. If you think you’ve captured all relevant ESI for litigation by searching just an office PC or laptop hard drive, think again. You must take into consideration that data can be stored literally everywhere.

First you must determine what you are looking for. Are you looking for e-mail, instant message communications, voicemail, corporate documents and spreadsheets? Keep in mind that e-mail systems, voicemail systems, network file servers, home PCs, removable drives and backup tapes all contain ESI.

A few questions to ask when you are collecting ESI for a discovery request:

1. Is there data stored on file servers?
2. Is there an e-mail system such as Microsoft Exchange, IBM Lotus Notes or Novell GroupWise in place? If so is there an automatic deletion policy in place for mail retention?
3. Is there a remote access gateway to the network and can people potentially have files on their home PC?
4. How is data backed up? Are there tapes? Is it backed up to a network appliance? Is there a limited retention period for data?

These are the obvious places to find electronic data such as a company’s mail and data servers, but did you know data can be in so many more esoteric places?

1. USB removable hard drive.
2. “Jump” or “Thumb” drives. Note that these come in all sizes and shapes; you can find them in the shape of sushi, animals, pens, and food to name a few. Many times they are disguised to look like some everyday trinket.
3. iPods or other MP3 players, these can act as hard drives for data storage too.
4. PDA or Blackberry devices can also hold data.

How much data is there?

In general, calculating printed pages of ESI is not an exact science. It is estimated that 1 gigabyte (GB) of data can equal 30,000 to 60,000 printed pages depending on file compression and format.