Thursday, May 31, 2007

Electronic Discovery Resources

The Economist recently published Electronic discovery: Of bytes and briefs. To summarize:

As technology changes the way people communicate, the legal system is stumbling to keep up. The “discovery” process, whereby both parties to a lawsuit share relevant documents with each other, used to involve physically handing over a few boxes of papers. But now that most documents are created and stored electronically, it is mostly about retrieving files from computers. This has two important consequences...

First, e-discovery is more intrusive than the traditional sort...

Second, e-discovery is more burdensome than the old sort.

I think I first mentioned ediscovery last year in Forensics Warnings from CIO Magazine. I am acquainting myself with the intrusiveness and burden of this process in preparation for some new work. The article mentioned the Institute for the Advancement of the American Legal System (IAALS), which published Navigating the Hazards of E-Discovery: A Manual for Judges in State Courts Across the Nation. This is a free .pdf. I am exceptionally interested in their next report:

Later this summer, we will release a publication on the implications of these changes for America’s businesses.

The IAALS article also mentions Suggested Protocol for
Discovery of Electronically Stored Information (“ESI”)
(.pdf), a Maryland document that elaborates on ediscovery.


Anonymous said...


There is a big article on this in the ISSA Journal for May 2007.

e-Discovery: Implications of FRCP changes on IT risk management
By Bradley J. Schaufenbuel

- CP

Richard Bejtlich said...

CP, absolutely. I got my issue yesterday and I'm looking forward to it.

Dan Weber said...

We also have the issues related to how the Fourth Amendment is invoked. Take a hard drive, for example. To the users, it looks like a file cabinet, where maybe each user has a lock if they have a password. To a forensic specialist, it's just a pile of bits.

This law blog discusses the recent case where this came up.

Anonymous said...

It can be very simple and low cost for small business to improve their eDiscovery management. The press and industry make it sound too complex for owner managers.

The main issue eDiscovery is searching the archives later to retrieve the data, and managing the physical media library. The same with removable drives, you never know what’s on them.

There is a $39 product called Datacatch Librarian that catalogs backup and archive removable media; it basically extends the Windows file management system so that you are seamlessly searching for files stored on removable media with standard Windows tools. What’s good about this is there is nothing new to learn.

So you can take a $20 CD/DVD rack with Datacatch and for less than $100 have a basic data archive management solution which does assist with meeting the new Federal Rules on eDiscovery for small businesses and home offices.

Ben Wright said...

Richard: This post remains relevant and timely because the Institute for the Advancement of the American Legal System is now releasing (or re-releasing) its report with advice to businesses on how to cope with e-discovery -- a topic that grows in importance with each passing month.

Knowing e-discovery is inevitable, I argue an enterprise can use technology proactively to make its e-records more benign. It can state over and over in all its records, "Our intent is to be a good actor, and if you don't think we are, then please let us know immediately." What do you think? --Ben said...
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