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Text of the page (random words):
e can lead to sanctions even if a court does not rule that the failure to preserve is negligence they can force the accused to pay fines if the lost data puts the defense at an undue disadvantage in establishing their defense 7 collection edit once documents have been preserved collection can begin the collection is the transfer of data from a company to its legal counsel who will determine the relevance and disposition of data some companies that deal with frequent litigation have software in place to quickly place legal holds on certain custodians when an event such as legal notice is triggered and begin the collection process immediately 8 other companies may need to call in a digital forensics expert to prevent the spoliation of data the size and scale of this collection are determined by the identification phase processing edit during the processing phase native files are prepared to be loaded into a document review platform often this phase also involves the extraction of text and metadata from the native files various data culling techniques are employed during this phase such as deduplication and de nisting sometimes native files will be converted to a petrified paper like format such as pdf or tiff at this stage to allow for easier redaction and bates labeling modern processing tools can also employ advanced analytic tools to help document review attorneys more accurately identify potentially relevant documents review edit during the review phase documents are reviewed for responsiveness to discovery requests and for privilege different document review platforms and services can assist in many tasks related to this process including rapidly identifying potentially relevant documents and culling documents according to various criteria such as keyword date range etc most review tools also make it easy for large groups of document review attorneys to work on cases featuring collaborative tools and batches to speed up the review process and eliminate work duplication analysis edit qualitative analysis of the content discovered in the collection phase and after being reduced by the preprocessing phase the evidence is looked at in context correlation analysis or contextual analysis to extract structured information relevant to the case structuring the data along a timeline or clustered by topic is common for example one can arrange evidence by how it relates members of a group as a form of social network analysis production edit documents are turned over to opposing counsel based on agreed upon specifications often this production is accompanied by a load file which is used to load documents into a document review platform documents can be produced either as native files or in a petrified format such as pdf or tiff alongside metadata presentation edit displaying and explaining evidence before audiences at depositions hearings trials etc the idea is that the audience understands the presentation and non professionals can follow the interpretation clarity and ease of understanding are the focus here the native form of data needs to be abstracted visualized and brought into context for the presentation the results of the analysis should be the subject of the presentation clear documentation should provide reproducibility types of electronically stored information edit any data that is stored in an electronic form may be subject to production under common ediscovery rules this type of data has historically included email and office documents spreadsheets presentations documents pdfs etc but can also include photos video instant messaging collaboration tools text sms messaging apps social media ephemeral messaging internet of things smart devices like smart watches virtual assistants and smart home hubs databases and other file types also included in ediscovery is raw data which forensic investigators can review for hidden evidence the original file format is known as the native format litigators may review material from ediscovery in one of several formats printed paper native file or a petrified paper like format such as pdf files or tiff images modern document review platforms accommodate the use of native files and allow for them to be converted to tiff and bates stamped for use in court electronic messages edit in 2006 the u s supreme court s amendments to the federal rules of civil procedure created a category for electronic records that for the first time explicitly named emails and instant message chats as likely records to be archived and produced when relevant one type of preservation problem arose during the zubulake v ubs warburg lawsuit throughout the case the plaintiff claimed that the evidence needed to prove the case existed in emails stored on ubs own computer systems because the emails requested were either never found or destroyed the court found that they were more likely to exist than not the court found that while the corporation s counsel directed that all potential discovery evidence including emails be preserved the staff that the directive applied to did not follow through this resulted in significant sanctions against ubs to establish authenticity some archiving systems apply a unique code to each archived message or chat the systems prevent alterations to original messages messages cannot be deleted and unauthorized persons cannot access the messages the formalized changes to the federal rules of civil procedure in december 2006 and 2007 effectively forced civil litigants into a compliance mode with respect to their proper retention and management of electronically stored information esi improper management of esi can result in a finding of spoliation of evidence and the imposition of one or more sanctions including adverse inference jury instructions summary judgment monetary fines and other sanctions in some cases such as qualcomm v broadcom attorneys can be brought before the bar 9 in united states v heppner 2026 a federal court held that chats with a public generative ai tool claude were not privileged under the circumstances presented highlighting ai chatbot conversations as a potential category of discoverable electronically stored information 10 11 12 databases and other structured data edit structured data typically resides in databases or datasets it is organized in tables with columns rows and defined data types the most common are relational database management systems rdbms that are capable of handling large volumes of data such as oracle ibm db2 microsoft sql server sybase and teradata the structured data domain also includes spreadsheets not all spreadsheets contain structured data but those that have data organized in database like tables desktop databases like filemaker pro and microsoft access structured flat files xml files data marts data warehouses etc audio edit voicemail is often discoverable under electronic discovery rules employers may have a duty to retain voicemail if there is an anticipation of litigation involving that employee data from voice assistants like amazon alexa and siri have been used in criminal cases 13 social media and mobile data edit media posts text messages photographs and application logs are increasingly feature in modern discovery reporting formats edit although petrifying documents to static image formats tiff jpeg had become the standard document review method for almost two decades native format review has increased in popularity as a method for document review since around 2004 because it requires the review of documents in their original file formats applications and toolkits capable of opening multiple file formats have also become popular this is also true in the ecm enterprise content management storage markets which converge quickly with esi technologies petrification involves the conversion of native files into an image format that does not require the use of native applications this is useful in the redaction of privileged or sensitive information since redaction tools for images are traditionally more mature and easier to apply on uniform image types by non technical people efforts to redact similarly petrified pdf files by incompetent personnel have removed redacted layers and exposed redacted information such as social security numbers and other private information 14 15 traditionally electronic discovery vendors had been contracted to convert native files into tiff images for example 10 images for a 10 page microsoft word document with a load file for use in image based discovery review database applications increasingly database review applications have embedded native file viewers with tiff capabilities with both native and image file capabilities it could either increase or decrease the total necessary storage since there may be multiple formats and files associated with each individual native file deployment storage and best practices are becoming especially critical and necessary to maintain cost effective strategies structured data are most often produced in delimited text format when the number of tables subject to discovery is large or relationships between the tables are of essence the data are produced in native database format or as a database backup file 16 common issues edit a number of different people may be involved in an electronic discovery project lawyers for both parties forensic specialists it managers and records managers amongst others forensic examination often uses specialized terminology for example image refers to the acquisition of digital media which can lead to confusion 1 while attorneys involved in case litigation try their best to understand the companies and organizations they represent they may fail to understand the policies and practices that are in place in the company s it department as a result some data may be destroyed after a legal hold has been issued by unknowing technicians performing their regular duties many companies are deploying software that properly preserves data across the network to combat this trend preventing inadvertent data spoliation given the complexities of modern litigation and the wide variety of information systems on the market electronic discovery often requires it professionals from both the attorney s office or vendor and the parties to the litigation to communicate directly to address technology incompatibilities and agree on production formats failure to get expert advice from knowledgeable personnel often leads to additional time and unforeseen costs in acquiring new technology or adapting existing technologies to accommodate the collected data emerging trends edit alternative collection methods edit currently the two main approaches for identifying responsive material on custodian machines are 1 where physical access to the organisation s network is possible agents are installed on each custodian machine which push large amounts of data for indexing across the network to one or more servers that have to be attached to the network or 2 where it is impossible or impractical to attend the physical location of the custodian system storage devices are attached to custodian machines or company servers and then each collection instance is manually deployed in relation to the first approach there are several issues in a typical collection process large volumes of data are transmitted across the network for indexing and this impacts normal business operations the indexing process is not 100 reliable in finding responsive material it administrators are generally unhappy with the installation of agents on custodian machines the number of concurrent custodian machines that can be processed is severely limited due to the network bandwidth required new technology is able to address problems created by the first approach by running an application entirely in memory on each custodian machine and only pushing responsive data across the network this process has been patented 17 and embodied in the iseek tool which has been the subject of a conference paper by adams mann and hobbs 18 in relation to the second approach despite self collection being a hot topic in ediscovery concerns are being addressed by limiting the involvement of the custodian to simply plugging in a device and running an application to create an encrypted container of responsive documents 19 regardless of the method adopted to collect and process data there are few resources available for practitioners to evaluate the different tools this is an issue due to the significant cost of ediscovery solutions notwithstanding the limited options for obtaining trial licences for the tools a significant barrier to the evaluation process is creating a suitable environment in which to test such tools adams suggests the use of the microsoft deployment lab which automatically creates a small virtual network running under hyper v 20 technology assisted review edit technology assisted review tar also known as computer assisted review or predictive coding involves the application of supervised machine learning or rule based approaches to infer the relevance or responsiveness privilege or other categories of interest of esi 21 technology assisted review has evolved rapidly since its inception circa 2005 22 23 following research studies indicating its effectiveness 24 25 tar was first recognized by a u s court in 2012 26 by an irish court in 2015 27 and by the high court in england in 2016 28 in 2015 the united states district court for the southern district of new york declared that it is black letter law that where the producing party wants to utilize tar for document review courts will permit it 29 the following year that court stated 30 to be clear the court believes that for most cases today tar is the best and most efficient search tool that is particularly so according to research studies cited in rio tinto 29 where the tar methodology uses continuous active learning cal 31 which eliminates issues about the seed set and stabilizing the tar tool the court would have liked the city to use tar in this case but the court cannot and will not force the city to do so there may come a time when tar is so widely used that it might be unreasonable for a party to decline to use tar we are not there yet thus despite what the court might want a responding party to do sedona principle 6 32 controls hyles application to force the city to use tar is denied maura r grossman and gordon cormack have defined tar as a process for prioritizing or coding a collection of documents using a computerized system that harnesses human judgments of one or more subject matter expert s on a smaller set of documents and then extrapolates those judgments to the remaining document collection some tar methods use machine learning algorithms to distinguish relevant from non relevant documents based on training examples coded as relevant or non relevant by the subject matter experts s while other tar methods derive systematic rules that emulate the ...