So by now all of us (and all of our clients) have excellent document retention policies in place that ensure, among other things, that no nasty surprises await us in the course of discovery or investigation. Well, maybe not. As the articles in this edition of Discussions remind us, there are many subtleties that may be overlooked.
Our first article deals with the thorny question of what it means to delete a document so that it cannot be subject to discovery. In the context of an electronic file system, "deletion" is not what it seems to be on the surface. More often than not, the "deleted" data is still sitting there, just out of our sight. Thus it is available for any enterprising individual to recover, something that can and does happen in the context of electronic discovery.
Still on the general theme of inadvertent production, "If a request does not specify the form or forms for producting electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable," according to the new rules for electronic discovery. This "form" likely means that metadata associated with documents may be subject to production. Our second article addresses the implications of this.
Finally - watch what you say, it may be used in evidence. As our third article points out, electronically archived sound and visual recordings are now explicitly listed as subject to discovery and the technology for searching these is advancing.
By Kenneth L. Stein and Richard H. An
In effect, discarding electronic files by deleting them is equivalent to discarding paper documents by putting them in a large garbage bin that is located on the company's premises and is not regularly emptied. Such documents are plainly in the company's possession and may be subject to production in a legal proceeding.
More at law.com - http://cataphora.com/out.php?go=yvj6o
By Laurie Weiss and Sara Turner
Metadata functions as the "DNA" of your electronic documents and email. Among other things, metadata can tell you (or your opponent) who authored or revised the document, what substantive revisions were made and when, who received the document and on what date, what law firms worked on it, and what formulas were used, for example, to create a competitive advantage in pricing products. Metadata may contain information that inadvertently discloses privileged attorney client communications or attorney work product.
The rest of this DRI article is at http://cataphora.com/out.php?go=rn01h
By Keith Ecker
According to the amendments to the Federal Rules of Civil Procedure, which went into effect Dec. 1, 2006, all electronically stored information, including sound and visual recordings, are subject to discovery. The explicitness of the new rules eliminates any wiggle room corporate defendants may have had to avoid such requests in the past.
More at Inside Counsel - http://cataphora.com/out.php?go=semqc
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