1. E-discovery involves the exchange of information in an electronic format, often referred to as electronically stored information (ESI).
2. Commonly used terms in e-discovery include native format, metadata, and deduplication.
3. Native format refers to the original file format of the document, allowing for a more accurate presentation of the information.
4. Metadata includes additional information about the document, such as creation dates and author information, which can be valuable in legal proceedings.
5. Deduplication is the process of identifying and removing duplicate files, reducing the volume of data to be reviewed.
6. The Florida Supreme Court amended the Florida Rules of Civil Procedure to include specific provisions for e-discovery, recognizing its importance in modern litigation. – Custodian is the individual who created or controlled an electronic file
– De-Duplication/DeNISTing are techniques for removing duplicate files from a document collection
– Forensic Image is an electronic or digital format for capturing and storing data without corrupting or altering data
– Keyword Search is the most common approach for searching document collections including keywords and Boolean strings
– Load file is the file used to import data into a database
– Metadata is data about data, including information such as author, recipient, creation date, modified date
– Native File is a file in its original file format that has not been converted to a digital image or other file format
– OCR Text is software that scans paper and creates searchable text
– Processing involves narrowing down, converting, and preparing data for review and analysis
– Production involves producing data to opposing parties in a number of formats
– ESI can be gathered by requesting a complete copy of a server, an individual computer’s hard drive, or specific pieces of software. A forensic image is made for later review. Obtaining electronic information for document recovery is typically done by a professional with a background in information technology or a forensic investigator. These professionals use a method called digital forensic analysis to sort through the information contained in the electronic discovery and pinpoint specific bits of information for use in litigation. – The way people communicate has changed, leading to an increase in e-discovery.
– The Florida Rules of Civil Procedure have been amended to allow for e-discovery.
– The amendments allow for consideration of electronic discovery during pretrial conferences and require parties in complex civil cases to address the preservation and production of electronic information. – Rule 1.280 allows for the discovery of electronically stored information and includes specific limitations on the discovery of ESI.
– Rule 1.340 and Rule 1.350 allow for the production of electronically stored information as part of interrogatories or specific requests.
– Rule 1.380 provides that in most cases, a court may not impose sanctions on a party for failing to provide ESI that was lost through routine operation of an electronic information system.
– Rule 1.410 authorizes a subpoena requesting electronically stored information and allows for objections to the discovery of ESI based on undue costs or burden. 1. The Florida Rules governing discovery did not mention e-discovery, but courts still interpreted them to include it.
2. In the case of Strasser v. Yalamanchi, the court allowed access to a computer to search for specific production items under the rules, but precautions must be taken to protect confidential and privileged information.
3. The court remanded the case to the trial court for further investigation into whether the data on the computer was retrievable.
4. The court weighed the importance of protecting confidential information against the idea that the defense was thwarting the discovery process.
5. The request for entry into a computer did not fit squarely with Florida Rule 1.350(a)(1).
6. Entry into the computer was considered to potentially provide unrestricted access to all information contained within, including confidential or privileged items. – Preservation letters should be sent to the opposing side, specifying data types, locations, individuals, and the nature of evidence to be requested during discovery.
– Clients should be instructed not to review documents on their own to avoid altering or destroying important information, such as metadata.
– Collaboration with opposing counsel to prepare a discovery plan is advisable.
– It is recommended to ask for production of electronic information in its native format.
– Requests for electronic discovery should be kept in proportion to the case, weighing the value of the items requested against the cost of production.
– Starting small by limiting the initial search to key custodians only, and then expanding later if necessary, is a good approach.
– Key word searches should be used to locate pertinent information and de-duplication and de-NISTing techniques should be used to eliminate duplicate files.
– If not skilled in forensic investigation and computer analysis, it is recommended to use a professional.
https://www.jimersonfirm.com/blog/2012/09/e-discovery-what-is-it-and-why-amend-the-florida-rules-to-include-it/
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