What's In A Word? - The Beginner's Guide to E-Discovery Terminology & Definitions

Learn the language of e-Disovery:  The first step in learning a new subject is to learn the terminology of that subject.  The following is the first of a  list of words to be presented. Sourced from " The Sedona Conference® Glossary (Second Edition)".
  • e-Discovery - The collection, preparation, review and production of electronic documents in litigation discovery. This includes e-mail, attachments, and other data stored on a computer, network, backup or other storage media. e-Discovery includes metadata.
  • Concept Search -  'Concept search' in litigation refers to the search of electronic documents on the basis of ideas they contain, rather than just specific keywords. Concept searching is usually implemented by broadening a keyword-based search to include synonyms or using a thesaurus to include results related to the ideas in the search keywords, even though not directly derived from the keyword search term.
  • De-duplication (or deduplication) -  The identification and segregation of exact or nearly-exact files. De-duplication can substantially reduce the cost of working with electronic document, as multiple copies of the same file need not be reviewed.
  • Document Management System - . A computer system that tracks and stores electronic documents or image representations of paper documents.
  • Deleted Files. When a file is deleted from an operating system (e.g. Windows), the contents of the file may still remain intact. Specialized computer utilities can be used to reconstruct deleted files, sometimes bypassing the operating system and directly reading the raw drive sectors.
  • Electronic Data Discovery or EDD  -  The process of gathering, reviewing and producing of documents in electronic format. Electronic documents include e-mail, memos, letters, spreadsheets, databases, office documents, presentations and other electronic formats commonly found on computer, network hard drives, back-up tapes and off-line storage such as CDs, DVDs, ZIP drives, etc.
  • Email string -  A series of e-mails linked together by e-mail responses and forwarding. Email string are often treated as a single document.

    There's more!  Additional terms and definitions will be posted. Meanwhile, let's analyze and research these terms for additional information and enhancements. Please share your findings and thoughts.

Doug Austin has excellent advice for paralegals at eDiscovery Dailey...this column is a #MustFollow

Doug Austin's "Pitfalls Associated with Self-Collection of Data by Custodians: eDiscovery Best Practices" will save you, and therefore your client, time and money when you "self-collect" documents and files for discovery. Take a look at his article here and save a copy for your eDiscovery File: eDiscovery Pitfalls - Don't Fall! 


Obtaining Disclosure of ESI From Non-Parties

What are disclosures? Texas Rule 194 - Request for Disclosure - 194.1 states a party may obtain disclosure from another party of the information or material listed in Rule 194.2 by serving the other party - no later than 30 days before the end of any applicable discovery period - the following request: "Pursuant to Rule 194, you are requested to disclose, within 30 days of service of this request, the information or material described in Rule [state rule, e.g., 194.2, or 194.2(a), (c), and (f), or 194.2(d) to (g)].

See Rule 194.2 for disclosure contents.

Typical requests for Request for Disclosures are commonly stated as follows when served with an Original Petition (notice the deadline is 50 days when served with a petition per Rule 194.3):

Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Plaintiff requests that each Defendant disclose, within 50 days of service of this request,t he information and material described in Rule 192.4(a) through (l).

The following is an excellent article regarding disclosure of electronic storage information (ESI).

Obtaining Disclosure of ESI From Non-Parties

Bill Hamilton's Seven Deadly Sins of the Rule 26(f) 'Meet-and-Confer' Conference : E-Discovery Bytes

Conference of the Parties - Planning for discovery. In a nutshell, the parties must consider the nature and basis of their claims and defenses and the possibliities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); disucss any issues about preserving discoverable information; and develop a proposed discovery plan. Wendy Akbar's article will tell you what NOT to do as it relates to e-discovery. This is a must read article in the world of e-discovery.

Bill Hamilton's Seven Deadly Sins of the Rule 26(f) 'Meet-and-Confer' Conference : E-Discovery Bytes

New Fios Webcast: e-Discovery Case Law Update – Summer 2011 | E-Discovery Resources & Information - DiscoveryResources.org

A must listen from Discovery Resources: New Fios Webcast: e-Discovery Case Law Update – Summer 2011 E-Discovery Resources & Information - DiscoveryResources.org - "This quarterly case law update from Fios explores recent court decisions related to -discovery, the impact these cases may have and are already having, and tactics and strategies organizations should consider to help their control their e-discovery costs and risks."

Predictive Coding Demystified | eDiscovery News

Paralegals with ten or more years experience will remember the days when we sat in conference rooms along side contract lawyers reviewing hundreds of boxes of documents, reading page by page looking for specific information. Later, we begin to sit at computers staring at those pages of documents which had been scanned into a database - still looking for specific information while entering keywords, names, and other such information for each document and summarizing the documents. These two exercises were called "document review" and required a "thinking" person with knowledge about the case to read and comprehend the documents, while defining privilige, issue, and relevance.

Then there was "coding". These are the rooms full of "coders", possessing only basic reading skills, and with little understanding of what they were looking at and why or if it was important. These data entry workers captured objective data by entering key words and dates, addresses and names mentioned. Indeed, they are warned not to waste time reading, but to quickly scan a page, looking for specific words only.  Their performance was measured by number of keystrokes and documents completed per minute.  This was necessary before OCR (optical scanning recognition) became reliable.

Now, there's predictive coding. What is it? Have we all been replaced by artificial intelligence? eDiscovery News describes it best at this link - Predictive Coding Demystified eDiscovery News.

Extra, Extra: Get Your E-Discovery News Here! | Exterro e-Discovery Beat Blog

Extra, Extra: Get Your E-Discovery News Here! Exterro e-Discovery Beat Blog; and another must read is Explaining e-Discovery - A Look at Some Common Misconceptions - from http://www.pillsburylaw.com/ - http://www.pillsburylaw.com/siteFiles/Publications/LJNs_LegalTech_April2011_AR.pdf.

How To Be Sure There Is No Failure to Communicate Preservation!

Monitoring Preservation of E-Evidence: Why It's Important - eDiscovery & Legal Tech - In House Jason Beahm at FindLaw for Legal Professionals wrote on September 21, 2010 "A hot area in the in house world right now: preservation of electronic evidence or "e-evidence." These days, more and more evidence exists only electronically. However, the fact that a piece of evidence is never printed on a piece of paper does not absolve in house counsel of the obligation to safeguard it."

To avoid clear misconduct it is imperative that lawyers (and thus their paralegals) take steps to assure clients do not unknowingly destroy e-evidence (electronic evidence). As a paralegal you should assure you have executed file copies of "client preservation of evidence letters" as prepared by the attorney. Copies should be sent to clients, opposing counsel and third parties. The "preservation of evidence letter" should make crystal clear as to what constitutes spoilation and what the possible consequences may be. For example, the following is sample language:

"This lawsuit requires preservation of all information from ABC Company's computer systems, and removable electronic media. This includes, but is not limited to, email and other electronic communication, word processing documents, spreadsheets, databases, calendars, telephone logs, contact manager information, Internet usage files, and network access information. Employees must take every reasonable step to preserve this information until further notice. Failure to do so could result in extreme penalties against ABC Company."

Now that you have your client covered, what about the opposing party "preservation of evidence" letter? Check in later for my next post and I'll address that question!

The Ultimate Metadata Guide - Metadata is more than data about data!

Are you still wondering what metadata is or why it's so important? Then follow this link and read all about it! Craig Ball will explain how metadata is "both information and evidence". craigball.com/metadataguide2011.pdf

Discovering Electronic Discovery

Discovering Electronic Discovery by Christoph Roggenkamp is a very good blog by an attorney who is also an electronic discovery expert. The blog hasn't been updated currently, however the information posted is very relevant and very well written; most of all it's easily understoody by those new to e-discovery.

Electronic Discovery Law Firm : K&L Gates : Electronic Discovery Law

"A blog on legal issues, news and best practices relating to the discovery of electronically stored information published by the e-Discovery Analysis & Technology Group at K&L Gates" - Electronic Discovery Law Firm : K&L Gates : Electronic Discovery Law

Electronic Discovery (e-Discovery) Law - Resources & Information | DiscoveryResources.org

A perfect starting place where you will find "the most up-to-date information, resources and news available about electronic discovery. DiscoveryResources.org offers...resources for legal professionals who seek to understand the many new technological and legal challenges associated with electronic discovery".   Electronic Discovery (e-Discovery) Law - Resources & Information DiscoveryResources.org

Paralegal uses e-discovery certification to open doors | ACEDS.org

Why you want to learn as much as possible about e-discovery. In particular, as a paralegal, you need to know the technical and practical (as in the practice of such) parts of e-discovery - Paralegal uses e-discovery certification to open doors ACEDS.org

EDD Blog Online: Removing Common Files in E-Discovery Processing: De-NISTing Explained

EDD Blog Online: Removing Common Files in E-Discovery Processing: De-NISTing Explained

Defining "Legal Project Management" - Legal Project Management

Defining "Legal Project Management" - Legal Project Management

The Estrin Report: Legal Project Management - The Next New Area for Paralegals to Conquer?

The Estrin Report: Legal Project Management - The Next New Area for Paralegals to Conquer?

Teleconference: Dynamic E-Discovery Tips for Paralegals : ParalegalGateway

Teleconference: Dynamic E-Discovery Tips for Paralegals : ParalegalGateway

Critical Need for E-Discovery Certification & The OLP - BlawgBlawgBlawg

Critical Need for E-Discovery Certification & The OLP - BlawgBlawgBlawg

eDiscovery Paralegal Blog - Free training - BlawgBlawgBlawg

eDiscovery Paralegal Blog - Free training - BlawgBlawgBlawg

eDiscovery Daily Blog: eDiscovery Project Management: Maintain Good Records

eDiscovery Daily Blog: eDiscovery Project Management: Maintain Good Records

Training | E-Discovery Paralegals Network

Training E-Discovery Paralegals Network

Blog | Integreon

Blog Integreon - Just in case you miss this:  Areas of particular interest to paralegals are emphasized in bold print.

Judicial Roundtable from Georgetown Law Advanced E-Discovery Institute

by Ron Friedmann on November 19th, 2010 at 5:47 pm :

Integreon is a sponsor of the Georgetown Law Advanced E-Discovery Institute, widely recognized as the leading educational conference for electronic data discovery (EDD). This is a live blog post of the session Judicial Roundtable. The panelists are Hon. John M. Facciola, Hon. Francis M. Allegra, Hon. James C. Francis, Hon. Paul W. Grimm, Hon. Elizabeth D. LaPorte, Hon. Nan R. Nolan, Hon. Andrew J. Peck, Hon. James M. Rosenbaum (Ret.), and Hon. Joseph R. Slights, III.

[Note: this session had a wide-ranging discussion covering many issues. This post reports only a subset of the discussion.]

Q: Has the duty of a lawyer to manage client changed with respect to e-discovery?

The ethical duties have not changed; the rules have not changed. It’s become harder to comply because of the complexity of e-discovery.

Q: How should a lawyer help a court come up to speed on e-discovery issues?

One judge suggests that courts take into account the resources available to a lawyer and that expectations for lawyers in small firms may be lower than for lawyers in large firms.

Q: Should there be another bar exam or certification to test lawyers’ technical / EDD competence?

One judge argues that there are many certifications for other specialized aspects of law practice. So it would be reasonable to have certification for technical competence. Another judge points out that there is no distinction between discovery and e-discovery, so another judge disagrees because that would mean every lawyer would need the certification. Another judge suggests this should be a function of continuing legal education (CLE). An audience member remarks that there are organizations offering EDD certification (referring to them as selling snake oil). Another judge worries that such a big focus on EDD would take away from the real goal of litigation, which is to resolve cases, so why focus on only one element.

Q: What are your views on new technologies, e.g., virtualization or cloud computing, that corporations are adopting. With virtualization, the “server” disappears after use. With cloud computing, hard to know where data is.

Technology will always outstrip ability of the courts to react quickly. Our judicial system is, by design, meant to move slowly. One judge suggests that some software is designed not to leave a trail (i.e., intermediate drafts). This can be benign or ‘nefarious’ - it depends on the context. Changes in technology do not change the obligation to preserve. As long as a system has good faith basis for routinely deleting data, it’s likely that will be a safe harbor, unless it can be shown that party was on notice that they should have preserved data. Can imagine preservation orders as applied to cloud providers will create difficult issues and may, over time, cause changes in data storage practices.

Another judge notes that, in the old days, people threw away paper copies and hand-scribbled notes. The implication is that there is nothing wrong, generally speaking, with deleting / destroying intermediate work product.

Q: Experience with non-party destroying ESI and what should a party do if it learns of this and can a party be sanctioned for this?

Information was in possession of a non-party. The non-party asked a party if it was ok to destroy the information, who approved it. That party was then sanctioned because of true culpability by party. But absent culpability, not so clear. This depends on local law. In some jurisdictions, parties have obligations to try to preserve 3rd-party data. Some states, only a few, have torts for spoliation - these can create a cause of action against a 3rd party.

Two podcasts and a video on electronic disclosure « e-Disclosure Information Project

Two podcasts and a video on electronic disclosure « e-Disclosure Information Project

Expert Discovery – FRCP Rule 26(a)(2)(b) Amendment | eDiscovery Journal

Must Read! - Greg Buckles of eDiscovery Journals writes about - Expert Discovery – FRCP Rule 26(a)(2)(b) Amendment eDiscovery Journal

Resolving Pre-Trial Research Frustrations - Talking e-Discovery....

"This week, West author and Marquette University Law Professor, Jay Grenig visits Eagan to talk e-Discovery.  Mr. Grenig is author of eDiscovery & Digital Evidence (Westlaw database: EDISCOVERY).  We’re using the event as an opportunity to collect solutions for these pre-trial research challenges." Resolving Pre-Trial Research Frustrations

Electronic Discovery: Featured Articles

Electronic Discovery: Featured Articles - FindLaw's Top 10 e-Discovery Cases in 2008

2008 saw many interesting developments in the world of eDiscovery. Mary Mack, an expert in eDiscovery issues, lists the ten most important cases of 2008 and discusses their significance for the eDiscovery community.

Law firm’s study reveals eDiscovery trends

Law firm’s study reveals eDiscovery trends

LexisNexis Applied Discovery - What is e-discovery production?

Applied Discovery Services: Production - From LexisNexis's Applied Discovery website: 
"The selection of a format for ESI production is often driven by the legal requirements presented in the Federal Rules of Civil Procedure (FRCP), or the state or local rule equivalents. FRCP 34 (Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes) highlights the fact that electronically stored information (ESI) must be produced in forms that are reasonably usable. Requests for production may specify desired data formats for production, but if no specification is made, parties must produce the ESI in the format in which it is ordinarily maintained, or in a reasonably usable form. Parties do not have to produce ESI in more than one format."

What Is Rule 34?

From Cornell Law University Website - Federal Rules of Civil Procedure, Rule 34 - (http://www.law.cornell.edu/rules/frcp/Rule34.htmProducing ) - Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes.
 (a) In General.
A party may serve on any other party a request within the scope of Rule 26(b):
(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:
(A) any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or
(B) any designated tangible things; or (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
(b) Procedure.
(1) Contents of the Request.
The request:
(A) must describe with reasonable particularity each item or category of items to be inspected;
(B) must specify a reasonable time, place, and manner for the inspection and for performing the related    acts; and
(C) may specify the form or forms in which electronically stored information is to be produced.
(2) Responses and Objections.
(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.
(C) Objections. An objection to part of a request must specify the part and permit inspection of the rest.
(D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form — or if no form was specified in the request — the party must state the form or forms it intends to use.
(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iii) A party need not produce the same electronically stored information in more than one form.
(c) Nonparties.
As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.

Following is an interesting article link from The National Law Review regarding Rule 34.
(http://www.natlawreview.com/article/court-orders-second-production-esi-reasonably-usable-form-and-rejects-argument-foreign-priva) "

E-Discovery Tools: Evaluate, Collaborate and 'Lawyer the Problem' : Lawdable

E-Discovery Tools: Evaluate, Collaborate and 'Lawyer the Problem' : Lawdable

RenewData solves ediscovery keyword puzzle

RenewData solves ediscovery keyword puzzle - http://idm.net.au/blog/007924-renewdata-solves-ediscovery-keyword-puzzle

The following is from IDM Data Manager at the above link. (Copyright © 2010 Transmit Media. All rights reserved.)

"A new tool that provides ediscovery legal teams with a more defensible and reliable method for developing the keywords needed to find responsive documents has been announced by RenewData.

Anagram Keyword Development is a service that expedites and removes the risk from the keyword selection process associated with legal or regulatory matters.

"The Anagram methodology is a unique process that solves a real market problem," said Steven Horan, Chief Executive Officer of RenewData.

"Everyone in eDiscovery knows there is a real need for a defendable, cost effective method for developing keywords. The current process has come under a tremendous amount of criticism because it is inaccurate and often results in contentious negotiations between legal teams. Anagram Keyword Development is the first simple, transparent and defensible methodology for selecting keywords that will transform how organisations prepare for eDiscovery and investigations."

The time required to review large amounts of documents retrieved from an organisation can be cumbersome and costly. Keyword search remains the most widely used content-centric approach for reducing the amount of data for review.

However, most keyword selection methods are ad hoc, extremely inefficient and have no clear process. Traditional keyword selection methods can produce lists that are either too broad or too narrow, meaning valuable time is wasted manually reviewing irrelevant content or critical documents are missed altogether.

In today's litigation environment, the process used for selecting keywords must be documented and defensible. Disjointed selection processes can result in costly sanctions, adverse inferences or other unfavourable rulings.

For example, in the US case William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co. both parties failed to cooperate on the creation of the keywords to search an e-mail database. Based on the major dispute over search terms, the judge offered an unfavourable opinion which set a new standard for the use of keywords in eDiscovery.

He stated that there needs to be "careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or 'keywords' to be used to produce emails or other electronically stored information."

"We continue to believe eDiscovery technology should empower keen legal insight, not replace it," says Horan. "Anagram achieves this. The elegance of Anagram is its ability to leverage human knowledge and language in a way that makes the eDiscovery process so much more efficient.

“Using the Anagram method, a legal professional can develop the keywords and phrases for a case issue in a fraction of time the current methods take. The accuracy, cost savings and time efficiencies Anagram delivers will make it an industry standard as a method for developing keywords in the future."

Anagram deploys a patent-pending method for extracting, analysing and displaying the entire vocabulary of the document collection, in a manner which makes synonym expansion fast and accurate.

The process allows lawyers to move directly from the concepts they are seeking within the collection of documents to the formation of key phrases that will identify documents containing those concepts. Anagram's capabilities can benefit clients beyond eDiscovery as well, including content management, scientific research and regulatory compliance.

Anagram is currently integrated into RenewData's service platform but future versions of this methodology will be available as a product in the near future, allowing clients to take even more of the eDiscovery process in house. In addition, by delivering Anagram as a software offering, RenewData partners will be able to integrate the solution into their client engagements as well". (Copyright © 2010 Transmit Media. All rights reserved).

RenewData - Anagram

Social Networks Pose E-Discovery Risks -- E-Discovery -- InformationWeek

Social Networks Pose E-Discovery Risks -- E-Discovery -- InformationWeek

SFL Data Selected by Oracle as Exclusive Provider of Electronic Discovery Services - MarketWatch

SFL Data Selected by Oracle as Exclusive Provider of Electronic Discovery Services - MarketWatch

E-Discovery Defined

E-Discovery is the process of requesting, locating, and acquiring electronic data in civil or criminal litigation.  Today, virtually all information is in electronic format.  Electronic discovery (or e-discovery) is discovery in which the information or data is in electronic format.  It is in many forms in many different places from smartphones to Facebook, to the clouds (cloud computing will be defined later).  This data is called ESI or Electronically Stored Information.  It can become evidence in the litigation and MUST be produced.  ESI is used interchangeablly with the term "e-evidence", although not all ESI is evidence.  Be prepared to ask questions and listen closely with a discerning ear so that you will not make the mistake of assuming they are one and the same when discussing the subject with your attorneys or discovery vendors.

As you remember from your paralegal studies, discovery is the investigative stage of litigation in which parties collect, prepare, review and produce information about the subject of the litigation.  This includes ESI, that is, electronic information such as e-mails, spreadsheets, audio, video, and other data stored on a computer network, backup or other storage media. E-Discovery includes metadata.  Metadata is the story of a document.  It is the embedded history of the document and tells the story of the document from who produced it, who reproduced it, when it was produced, revisions made to the document, when the revisions were made, and so on.  The metadata of a document tells you more about the document than the page you hold in your hand.  Metadata is in all applications, not just email and wordprocessing.  Even your copier holds metadata!  Copiers can also embed metadata into a document.  Metadata is very important in e-discovery and will be discussed in detail later.

E-discovery has far-reaching implications that go far beyond technology. It raises multiple legal, constitutional, political, security and personal privacy issues, many of which are the subject of cases currently in the Supreme Court such as the recent case regarding text messaging.

Following are several books and a link that I highly recommend as "easy reading" introductions to e-Discovery. These books will give you a solid foundation in the field and enable you to jump into any stage of the process with confidence.

1.  Paralegal Today - A Paralegal's Guide To Understanding e-Discovery

Work In Progress - An E-Discovery Dictionary for Beginners

The first step in learning any new subject is to learn the terminology of that subject.  To make sure we speak the common language of e-Discovery, I am preparing a comprehensive "e-Discovery Dictionary".  You will discover that understanding the terms will give you a firm foundation to build upon.  After learning the terms, you will no longer feel like a novice!  Coming Soon.

What is E-Discovery Certification?

A very informative overview of the E-Discovery Certification Process - Sophisticated Litigation Support Blog

Amazon.com: Books for Paralegals/Legal Assistants

Amazon.com: Books for Paralegals/Legal Assistants

Not Just Another Complex E-Discovery Blog!

By combining technical litigation support skills and paralegal skills, I have become one of a rare breed of hybrid paralegals. A "technical-litigation-support-paralegal (TLSP)"! Through more than 10 years experience in which I avidly learned how to setup Concordance, Summation and Microsoft Access databases, I've developed an intutive knowledge of what an attorney needs from legal software.
A deep knowledge of legal software can be used to make litigation, (particularly discovery & document management) more efficient and more effective. It also makes the litigation process from court-filing to the court-room even more exciting because it "allows the paralegal to think and work creatively by mixing legal and technical skills" (The Evolving Paralegal Role by Milton Hooper, Legal Assistant Today, 2007, http://goo.gl/USt0).
The focus of this blog is the ABC's of E-Discovery for paralegals and legal assistants. I will provide a step by step guide to understanding the technical litigation support role in e-Discovery and Document Management.
The following questions will be answered and discussed, answered and discussed again, and again as the technology and the legal rules governing e-Discovery continuously changes:
  • What is e-discovery?
  • What is the role of the paralegal in e-discovery?
  • What are the tools of e-discovery?
  • What is electronic document management?
You, the commenter, will play a major role in answering these questions as you contribute to the discussion. What do you know? Please share your knowledge!