As a follow up to the e-discovery topic at the HSBA Bar Convention, the Litigation Section hosted Mr. Michael Murdo, President of Cetra Technologies, Inc., at its October 23, 2012 monthly meeting. Cetra Technologies provides attorneys with technology to deal with issues related to e-discovery. The presentation provided good practice pointers in this growing area of discovery related to ESI (“electronically stored information”).
The primary areas that must be addressed in e-discovery (as with other discovery) are collection, preservation, review, and production. Privacy issues also come into play.
When dealing with collection, some issues that should be considered are limiting the scope of the search to the most pertinent information and not being tempted to over collect. “Elusive data” – or data that has been deleted or hidden – should also be collected.
Text messages are a growing area of e-discovery. Under the Stored Communications Act, issues often arise as to whether the provider is obligated to produce material in response to a subpoena. A best practice for discovery is to first send discovery requests to the user to obtain the user’s credentials. That information may then be able to be used to obtain the text message information from the provider.
In the area of preservation, remember that whoever is tasked with the collection must prove the authenticity of the method. “Hashing algorithms” are used – or, unique file signatures associated with particular data.
For review, obtaining software that compiles the data in its native format is useful. It is also important that the software allow for review, but not alternation of the material.
An overall theme related to e-discovery to remember: “if you want to keep information private, don’t put it on the computer.”