Electronic Discovery Tips
There are many materials available online, in CLE materials, and in the library that tell us “what”, or the law behind electronic discovery. Here are some practical tips I have learned on the “how” of finding the documents you need for your case.
For full-blown electronic discovery, try this approach:
- Depose the managing agent / corporate representative about the IT system and location of documents. They will testify as to systems, policies, retention and destruction of documents.
- Next depose the IT/IS manager. They will testify as to how the system is actually operated – whether policies are followed, documents deleted, offsite migration of documents (jump drives, lap tops, cloud, email).
- E-document Custodian. Have this person identify persons responsible for the operation, maintenance, data security, expansion and backup of computer systems. Obtain a description of the number and type of servers, local area networks and wide area network servers, desktop and laptop computers in use at your adversary’s offices as well as home computers and personal devices used by the employees for work.
- Obtain a description of the operating systems and software.
- Obtain a description of their backup schedule, tape rotation, tape retention dated destruction concerning e-mail systems, e-mail retention schedules and any policies or practices concerning the use of electronic mail.
- Obtain information concerning any Internet, Internet gateways or software used to connect your adversary’s computer system with Internet and any guidelines or policies issued to their personnel concerning employee use of the Internet.
- Obtain information concerning word processing systems, database management or project management software, electronic spreadsheets and other software used by their personnel including guidelines for personal use of such software.
4. Requests for production regarding electronic evidence:
- Written policies procedures and guidelines relating to computers, electronic data and electronic media
- File naming conventions.
- Diskette labeling rotation.
- Electronic media retention, destruction, corporate policies concerning employee use of company computers and data.
- Organizational charts.
- Backup tapes containing relevant material.
- Exact copies of relevant hard drives (including desktops, laptops, notebooks palmtop, phones, tablets, and personal digital assistant computers).
This is a bare bones list, but should help get the process started. Key your requests to specific allegations in the numbered paragraphs of the petition, answer, counterclaims and affirmative defenses in an effort avoid an “overbroad, burdensome, not reasonably calculated” objection to your requests. And resist production of paper copies of digital electronic documents in lieu of the native form of the document.
As a last bit of advice, make sure your client’s house is in order. You may find that your opponent adopts your approach and launches the same discovery in response.
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