EDD Update

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E-Discovery Plain & Simple Book

Allison Brecher, senior litigation counsel and director of information management and strategy at Marsh McLennan Companies and Shawnna Childress, executive director and co-founder of Women in eDiscovery have released their new book, eDiscovery Plain & Simple. The book explains law of both electronic discovery and information technology using graphics and checklists, explaining the information technology attorneys need to do their jobs.

Preservation of Disaster Recovery Backup Tapes?

From John Jablonski, partner, Goldberg Segalla*:

Do you need to preserve disaster recovery backup tapes that contain relevant ESI? Guidance from commentators and case law is mixed. The Federal Rules of Civil Procedure are silent on whether disaster recovery backup tapes need to be preserved when implementing a litigation hold. What we know, however, is that all relevant ESI must be preserved. Relevant ESI can be contained on backup tapes that a party deems not reasonably accessible. See FRCP 26(b)(2)(B). Assuming backup tapes are preserved and identified as not reasonably accessible, will the tapes ever be subject to discovery? In short, yes as demonstrated by Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009).

In Kilpatrick the court ordered production of disaster recovery backup tapes, despite defendant's argument that ESI on the tapes is not reasonably accessible. While the case does not address the question of preservation directly, it stands as a warning. Defendant repeatedly represented that active ESI met its discovery burden. Defendant also advised that additional relevant ESI might be contained on backup tapes, designated as not reasonably accessible because they were maintained for disaster recovery purposes only. Plaintiff was not buying it and moved to compel production of the backup tapes. The court agreed that the ESI produced so far seemed to have some holes and compelled limited production from the backup tapes.

From John Jablonski, partner, Goldberg Segalla*:

Do you need to preserve disaster recovery backup tapes that contain relevant ESI? Guidance from commentators and case law is mixed. The Federal Rules of Civil Procedure are silent on whether disaster recovery backup tapes need to be preserved when implementing a litigation hold. What we know, however, is that all relevant ESI must be preserved. Relevant ESI can be contained on backup tapes that a party deems not reasonably accessible. See FRCP 26(b)(2)(B). Assuming backup tapes are preserved and identified as not reasonably accessible, will the tapes ever be subject to discovery? In short, yes as demonstrated by Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009).

In Kilpatrick the court ordered production of disaster recovery backup tapes, despite defendant's argument that ESI on the tapes is not reasonably accessible. While the case does not address the question of preservation directly, it stands as a warning. Defendant repeatedly represented that active ESI met its discovery burden. Defendant also advised that additional relevant ESI might be contained on backup tapes, designated as not reasonably accessible because they were maintained for disaster recovery purposes only. Plaintiff was not buying it and moved to compel production of the backup tapes. The court agreed that the ESI produced so far seemed to have some holes and compelled limited production from the backup tapes.

ABA Releases Latest Edition of Kroll Ontrack's Book

The American Bar Association has released the newest edition of Electronic Evidence and Discovery: What Every Lawyer Should Know Now. The book, by Kroll Ontrack’s Michele Lange, director of legal technologies, and Kristin Nimsger, president, provides legal professionals with a guide to the legal and technology issues involved in e-discovery. 

Providing analysis of new case law and e-discovery cases, it helps provide a guide for e-discovery cases to come. Lange and Nimsger also discuss how legal and IT teams can collaborate to manage e-discovery requests. Full release here.

Free Preview Chapter From EDD Book

OnSite Sourcing Inc. has offered a free preview chapter from E-Discovery: Creating and Managing an Enterprisewide Program - A Technical Guide to Digital Investigation and Litigation Support. The preview chapter, which is on document review, looks at costs, how to create a document review workflow, early case assessment. strategies, and advancments in the review process. 

Karen Schuler, a former vice president at OnSite, and Eric Feistel, communications director, are both contributors to the book. Full release here.

Do you know what a "blook" is?

I didn't either until my publisher told me I had written one. A blook is a paper book derived from an Internet blog. I have now written my second blook, entitled Introduction to E-Discovery: New Cases, Ideas, and Techniques (ABA 2009). It is derived from my blog, e-Discovery Team. It is at the printers and will be available later this month, but can be ordered now from the ABA.

In-Depth Review of George Paul's Book "Foundations of Digital Evidence"

Ralph here - I wrote my first book review this long Thanksgiving weekend - The Ninth Step: Review of George Paul’s New Book “Foundations of Digital Evidence”. Please check it out and tell me what you think? 

It is a long review (4,500 words), but I felt that was necessary to begin to do justice to this important work. First, I start off by providing my own twist and put the general topic of digital evidence into the perspective of the EDRM model. That is why I called the review the Ninth Step, since evidence is concerned with the Ninth Step of Presentation. Then I add a long term prediction, a kind of a wish really, that as the first eight steps of e-discovery become more and more cooperative, our adversarial conduct will be channeled into the Ninth Step where it belongs - into courtroom battles as to the admissibility and weight to be given to ESI. You would be foolish to enter that fray without first arming yourself with the ideas and insights provided in George Paul's new book

Then I go into the contents and ideas of the book itself, and include extensive quotes of some of my favorite paragraphs. George Paul is a deep thinker and has flashes of poetic writing not often found in technical writing.  Please check out the book review, and more importantly his book, Foundations of Digital Evidence  (ABA 2008). Read on to see one of my favorite lines from George's book.

Fios Updates Mack Book

Fios Inc. announces the publication of the latest update of attorney Mary Mack's book, A Process of Illumination: The Practical Guide to Electronic Discovery. Click here to read more.

EDD Guide for Judges--Get the Inside Scoop

The Federal Judicial Centers has made available the guide  "Managing Discovery of Electronic Information: A Pocket Guide for Judges."  The guide was created to help federal judges manage the e-discovery portions of their cases.  Written by Barbara Rothstein, Ronald Hedges, and Elizabeth Wiggins, the guide includes how judges:

• Define ESI and how it differs from conventional information
• View Rule 26(f) and facilitate early consideration of ESI
• Manage the scope of e-discovery during a case
• Consider sanctions for the spoliation of ESI

Download the guide here.

Ralph Losey to Publish Blog-based EDD Book

Ralph Losey is set to publish a book, "E-Discovery: Current Trends and Cases," based on his weekly blog, "e-discovery Team."  More information on the book is available here, or go here to pre-order.