As if the Federal Rules of Civil Procedure (FRCP) hadn’t given companies enough to worry about, now a judge’s ruling means that companies need to be ready to produce metadata in legal cases too. …

In a recent post about the Top 10 eDiscovery Trends for 2009, the ten most likely things to happen in the world of eDiscovery were discussed. A system of standardization or at least a list of criteria needs to be developed in order for eDiscovery to be streamlined for the future. There are several reasons these things will be worked on in the coming year, a few of which will be discussed below.

Transparency
When it comes to corporate data systems, whether the information is proprietary or not, forensic analysts need to be able to audit files just as an IRS auditor would expect documentation to be in order. Transparency means that nothing needs to be hidden if forensic analysts need to explore a system. Besides customer information, nothing should ever be locked out of sight.

Accuracy
For the sake of accuracy during investigations, certain standards will need to be applied. Once these standards are I place, we can move forward; in the case of the many companies going under, much work will need to be done to ensure that all bases have been covered by forensic analysts.

Accountability
With a standardized or regulated system in place, accountability will be in place as well. As things currently stand, ignorance can be claimed by any number of individuals within a company’s data infrastructure. New regulations for data could help make accountability easier to facilitate in the future.

Accessibility
Again, a standardized or regulated system of maintaining data files would help to ensure that getting to the data in question would be easier than in years past. Forensic analysts would therefore have to spend less time looking for the data and more time analyzing it.

Compliance
Finally, if a regulated system of data storage is put in place by various cogs of the machine that is corporate America, there would be a standard by which all systems should be judged. Therefore, compliance with specific rules, regulations, and stipulations would be mandatory and therefore easier to gain access to if the need arises.

This post was contributed by Holly McCarthy, who writes on the subject of Criminal Justice careers. She invites your feedback at hollymccarthy12@gmail.com

For the most part, these predictions aren’t surprising our outrageous. They take aim at the very crux of what eDiscovery proselytizes — show your work, collaborate, adapt and take control! …

On December 19, 2008, the Supreme Court of Alaska adopted amendments to Alaska’s Rules of Civil Procedure to address the discovery of electronically stored information.  The amendments affect rules 16, 26, 33, 34, 37, and 45 and become effective April 15, 2009. …

Peskoff v. Faber, 2008 WL 2649506 (D.D.C. July 7, 2008)

In a previous decision, Magistrate Judge John M. Facciola addressed the sufficiency of the search done by defendant Michael Faber for emails and other ESI in response to plaintiff’s discovery requests, and determined that it was “appropriate to ascertain the cost of forensic testing of the computers and server at issue to see if it justifies a forensic search of them.” Peskoff v. Faber, 244 F.R.D. 54, 63 (D.D.C. 2007). The parties submitted a joint bid proposal, which the court distributed to numerous vendors. Three bids were received, the lowest of which was $33,000. When the parties failed to reach agreement on how to share that cost, the matter was submitted again to Judge Facciola for resolution. …

By Liz Gold

Think you have a lot of e-mails? Those who work within the e-discovery process — the handling of electronic information and documents for litigation purposes — most likely have more.

“Many of the smoking guns in a lot of these cases reside in e-mail,” said Catherine Parente, CPA, ABV, CVA and partner-in-charge of the consulting services department at CPA and business advisory firm Carlin, Charron & Rosen LLP. She added that one of the cases she’s currently working on includes four boxes of records, two of which contain printed out e-mails. …

by Conrad J. Jacoby, Esq.

e-Discovery is not a natural disaster, but in some ways, it has more than a little bit in common with some of the flooding we recently experienced in the American Midwest. Floods are deceptive in appearance. From a distance, floodwaters’ calm surface looks uneventful and even serene. It’s only when you see treetops and house roofs peeking up that you are reminded of the underwater debris and destruction that resulted from the relentless push of water against everything standing in its path. …

There is little doubt that eDiscovery presents a challenge to lawyers.

Identifying exactly what kind of a challenge it is has proven to be a little harder to define. Some would consider the sheer volume of ESI to be the greatest challenge. Others would say it’s the impenetrable technical jargon that presents the biggest hurdle to lawyers. Or perhaps it’s the fragility/persistence paradox that has most lawyers scrambling to catch up. …

Sterle v. Elizabeth Arden, Inc., 2008 WL 961216 (D. Conn. Apr. 9, 2008)
In this wrongful termination case, plaintiff sought the production of certain “DSFG Reports” which summarized information regarding the sales performance of employees in relation to their peers, and other key sales information. Plaintiff knew about the existence of the DSFG Reports because he had received a facsimile of the June 2004 DSFG Report before he was terminated. The fax was sent anonymously but the fax number was from defendant’s Stamford, Connecticut office. The June 2004 DSFG Report revealed that plaintiff was leading his division in sales performance. After nine months of discovery, defendant had produced only four additional DSFG Reports. In October 2007, plaintiff moved to compel production of the remaining seven DSFG Reports from the year prior to plaintiff’s termination. …

Aubrey Owens - Vice President of Technology for Superior Document Services, and I road tripped to Houston, Texas Sunday April 13Th for a Computer Forensics course put on by our good friends at Trial Solutions. The course was excellent- the instructors were top notch real world forensic examiners with incredible insight into common and not so common forensics issues and surprisingly (to me at least) adversarial collection situations. …