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The changing face of American communication presents lawyers with new challenges and opportunities in the realm of electronic evidence. Corporations are generating evidence at a breakneck pace. In 2000, an estimated 1.4 trillion e-mail messages were sent from businesses in North America, up from 40 billion in 1995. More than 90 percent of business documents are now created electronically, and the vast majority of them are never printed. This explosion of electronic documents requires that litigators have a plan for managing discovery, to protect the client’s interests and to gain a strategic advantage over their opponents. DATA PRESERVATION One of the most important issues in electronic discovery is data preservation. While e-mail and electronic files are abundant, much of the data resides on backup tapes, which are frequently recycled, or on individual hard drives, on which data are altered and overwritten with each use. When litigation becomes imminent, a corporation must protect itself against a potential spoliation accusation. The best way to avoid such a charge is to immediately halt all electronic document-handling policies that result in the recycling of tapes or other e-data destruction that may destroy potentially relevant files. Data destruction must cease at all locations of both parties. Attorneys should also consider suggesting that the data on the hard drives of key people be preserved through the use of mirror-imaging technology, which freezes the data in snapshot fashion. In addition, preservation letters should be sent to all parties and nonparties in possession of potentially relevant data. In some cases, a preservation order may be required. As the case moves forward, monitoring compliance can be important and potentially quite fruitful. SPOLIATION CONCERNS Electronic evidence creates new and unique potential for spoliation of evidence. When copying client data for production or review, failing to make sector-by-sector images prior to viewing may result in spoliation. Simply booting a computer can destroy “slack” and “temporary” files, or cause data to be overwritten or metadata (such as create dates or modified dates) to be altered. Clicking on a file rather than properly copying it can change its last accessed date, leading to potentially severe consequences or the inadmissibility of the data. Besides protecting your client, this knowledge can be a powerful tool against your opponent. Serving an interrogatory asking whether the opponent has overwritten or revised any relevant documents since the beginning of the litigation may have extraordinary consequences. Another option that may yield a strategic advantage is bringing a motion to compel production. If the data are produced in an altered state, spoliation may have occurred. Because of inconsistency in the case law, attorneys should routinely seek a protective order at the outset of litigation to prevent data destruction. Increasingly, parties with very little electronic data, or with a good handle on their own electronic evidence, are aggressively seeking such evidence from their opponents. Their goal is more commonly to create a spoliation problem than to actually obtain and review hundreds of thousands of pages of electronic files. The most prevalent mistakes that result in spoliation are failing to discontinue automatic e-document destruction policies, improperly collecting and imaging electronic data, and modifying Web sites. Sanctions for spoliation can be severe. Common sanctions include adverse inferences or presumptions (at either the case level or the issue level), preclusion of evidence, monetary sanctions, and dismissal or default. In several jurisdictions, spoliation even gives rise to a separate cause of action in tort. At the federal level, criminal penalties apply to the obstruction of justice through destruction of evidence. RULE 26 DISCLOSURES In light of the fact that jurisdictions may no longer “opt out” of the application of the Federal Rules of Civil Procedure, attorneys must address the impact of Rule 26 on electronic evidence. Rule 26(a) specifically requires the disclosure of “data compilations” (e.g., electronic files, databases, e-mails) following a full investigation of the case. This imposes a duty on attorneys to locate all sources of electronic data in their clients’ possession. Data will commonly be located on individual desktops and laptops, network hard disks, removable media (e.g., floppy disks, tapes, and CDs) and, increasingly, personal digital assistants (e.g., Palm Pilots). Data may also be in the possession of third parties, such as Internet service providers, and on the computer systems of other peripherally involved entities. Rule 26 requires the parties to determine the volume of e-mail and other electronic information, which can be difficult to do without the assistance of an experienced electronic discovery expert. This information is also essential to negotiations regarding the timing, form, and limitations on discovery (the proportionality issues) contained within the rule. Attorneys must also protect their ability to call their e-discovery or forensics experts as witnesses at trial. Rule 26(a) mandates the disclosure of any person who may be used at trial to present evidence under Federal Rules of Evidence 702, 703, or 705. Under this rule, counsel must decide whether to disclose any electronic discovery experts involved in the case. Obviously, an expert who has engaged in any sort of forensic analysis of hard drives or other systems falls within the gambit of this rule. The more interesting issue is whether one must disclose an expert who handles the collection and reproduction of electronic data without conducting any sort of forensic analysis. Since electronic discovery experts clearly possess the kind of “scientific, technical or other specialized knowledge” contemplated by Rule 702, it may be wise to err on the side of caution and disclose all electronic discovery experts at this time. RULE 16 CONFERENCES One of the most useful management tools for electronic discovery is the Rule 16 pretrial conference. Topics for discussion at the conference may include: preservation of evidence (including whether backup, archival and “deleted” files will be exchanged), preliminary disclosures as to the parties’ computer systems (including numbers, types, and locations of computers, operating systems in use and backup schedules), document processing and production formats, testifying experts and anticipated evidentiary disputes. As with the Rule 26(f) meeting, counsel must be armed with all of the salient facts regarding all electronic evidence that is relevant to the case. Being fully prepared at a Rule 16 conference may help limit the scope of discovery of the client’s data while maximizing the disclosures from opposing parties. The court may be educated by expert testimony as to the nature, location, and volume of electronic data, as well as the time and cost involved in producing it. DISCOVERY REQUESTS AND REVIEW After the Rule 26 disclosures, attorneys may acquire more in-depth information or additional electronic data through a combination of interrogatories, requests for documents, and depositions. Requests should be carefully crafted to seek the data relevant to the claims and defenses in the matter. A request for “all electronic data” will likely result in an objection based on burden or expense, and courts often will not allow a “fishing expedition.” Therefore, discovery requests must be specific and exhibit an understanding of how electronic data are created, stored and destroyed. The same criteria used in disclosing client data under the Rule 26 initial disclosure provision can be used to formulate effective interrogatories. The response to those interrogatories should provide a road map for a follow-up request for documents or subpoena duces tecum. If the response does not provide a road map, there are plenty of cases to support a motion to compel. Understanding all the advantages and potential pitfalls of electronic evidence is very important. Though electronic searches may be easier and faster than reviewing hard copies, the sheer volume of electronic documents can lead to mistakes. In a few million electronic pages of data, for example, it is relatively easy to miss an e-mail between you and your own client, inadvertently waiving the attorney-client privilege. The discovery of a “smoking gun” e-mail can transform a contentious legal battle into settlement discussions. For example, in the well-known case Linnen v. A.H. Robins Co., computer forensics engineers were able to recover an e-mail from one company employee to another discussing the side effects of the fen-phen drug, which led to American Home Products having to pay out one of the largest legal settlements in history. (The message read, “Do I have to look forward to spending my waning years writing checks to fat people worried about a silly lung problem?”) TRIAL ISSUES Assuming that spoliation has not occurred and no smoking gun has been found to force settlement or summary judgment, the issue of the admissibility and use of electronic evidence at trial remains. To be admissible, e-mail and other electronic evidence must be authenticated, and the evidence must clear any hearsay hurdles. Computer records may be admitted under the business records exception to the hearsay rule. However, the Federal Rules of Evidence require the party offering a computerized record to prove it was created “at or near the time” of the transaction, act, or event recorded in order to qualify as a business record exception to hearsay. As technological developments simplify daily business activities, they simultaneously create trails of data complicating legal discovery. With 70 percent of all data now stored in electronic form, gone are the days when a “smoking gun” is likely to be found in a box of documents in an off-shore storage facility. Instead, the best evidence is sometimes hidden in the very machines that employees use every day. Understanding how to traverse the minefield of electronic discovery and gain a strategic advantage is the best way to win your case. Kristin M. Nimsger is a legal consultant at Eden Prairie, Minn.-based Ontrack Data International, DataTrail Electronic Discovery Solutions (www.ontrack.com/datatrail). She is a frequent author and lecturer on the topic of electronic discovery.

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