E-Discovery "Wake Up Call"

Posted on April 30, 2008 by Susan C. Salmon

Findlaw posted a great article that nicely digests many of the new e-discovery obligations imposed by the revisions to the Federal Rules and analyzing their ramifications for corporate America and the U.S. government if entities don't "wake up" and take immediate proactive steps to get their electronic information house in order for future litigation.  The author also lists the litany of excuses offered by parties - and rejected by courts - for a party's failure to comport with e-discovery obligations.  The article is exactly what it purports to be:  a wake-up call.  It doesn't go into exhaustive detail, but it should alert the unwary to the potential landmines in the developing e-discovery landscape.  Definitely worth a quick read (or a quick link) as one step to make sure you, your attorneys, or your clients are taking appropriate measures to avoid costly e-discovery snafus...or sanctions.

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Portable Devices - Another Source for E-Discovery

Posted on April 1, 2008 by Anthony P. Chan

In my earlier post "Hosted Apps: A Source for E-Discovery" I pointed out that "hosted applications" are a good source of information when deposing 30(b)(6) representatives and drafting requests for production of electronic information. But what about information buried in portable storage devices such as USB drives, flash drives, hard drives, iPods, PDAs, CD-ROM, DVD drives and even cell phones?

These little gadgets have become very popular tools for transferring data among computer systems and networks. What would be the smoking gun that indicates the deposed party actually utilizing such devices and denied possession of them?

The Windows computer platform may be tight in security but it also contains a trail of bread crumbs that may unveil the presence of some portable devices. Take a look at the Windows registry. It is essentially a database that resides on the computer containing critical information and settings for all the hardware and operating system software, among other things. Each time a portable device is attached to the computer (via a USB, serial / parellel port), Windows grab the information regarding the device manufacturer and serial number if it has one and stores it in its registry.

The registry also keeps a date stamp associated with the last time the portable device was written. So unless the deposed party is a computer forensics expert who knows how to hide her tracks, the Windows registry would likely provide a glimpse of whether the other party is forthright with producing the content you seek.

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